Page:Harvard Law Review Volume 12.djvu/150

130 I30 HARVARD LAW REVIEW. not have decided as they did if the contracts in question, although reasonable, had not been incidental to sales of property. They consid- ered the fact of the sales only as shedding light upon the reasonableness of the transactions. Greefi v. Price, 13 M. & VV, 695, 698. It can hardly be seriously supposed that the distinction taken had any further existence at common law ; and if it has any validity in the present connection it must be by construction of the statute. It is hard to see why the fact that the agreement is collateral to a sale of property should place it be- yond the operation of the statute. If that element, however, has the effect claimed, it may further be questioned whether it was present in the principal case ; for by the better view a sale of goodwill is not a sale of property. Goodwill is property only by a figure of speech, and when the plaintiff here sold his goodwill he really did no more than bind himself to place the defendant in a position where he might benefit from all the combined circumstances of the business which the plaintiff had organized. The agreement not to compete was then merely incidental to an affirmative contract to place the defendant in the plaintiffs shoes, and was not collateral to a transfer of property. It was incidental to a trans- action which resulted in something valuable to each party ; and the Federal Supreme Court migiit, perhaps, extend their rule to cover the present case. But few contracts do not result in something valuable to each party ; and shall the rule be extended so as to sanction all contracts in reasonable restraint of trade when they are collateral to contracts which are, from a pecuniary standpoint, valuable to the parties? The line is not easy to draw in applying a rule based upon reasoning which is meta- physical at best. One feels inclined, however, to support the decision in the principal case because of the necessity of limiting the operation of the Trans- Missouri decision to cases where the facts are directly parallel ; and the New York court may well have been right in holding that the Trust Act was aimed directly against combinations and monopolies, and did not apply to cases like the present where the element of combination did not exist. The Right to a Benefit. — It is characteristic of the growth of the law that a case of first impression is often of more value for the conclu- sion reached than for the hypothesis upon which it proceeds. So it is in Keernan v. Metropolitan Construction Co., 49 N. E. Rep. 648 (Mass.) ; one accepts the result in some doubt as to the nature of the right involved. The facts are somewhat curious. The defendant company was using a fire hydrant under a right to supply its engine in the construction of sewers. A fire broke out in the plaintiffs house, and the defendant's servants for a time forcibly prevented the use of the hydrant by the fire department of the city. For the damage resulting to the plaintiff from the delay so caused the Massachusetts court holds the defendant liable. To determine the character of the plaintiffs right is a matter of much difficulty. It is well recognized that the plaintiff has no enforceable right against a public corporation to have public servants extinguish her fire, for the function is governmental. Springfield Fire Ins. Co. v. Keeseville, 148 N. Y. 46. To support the decision, however, the principal case rec- ognizes a less tangible right to have firemen get water if they choose to do so, in order to put out a fire in the plaintiffs house. Precise analo- gies to the right thus defined do not appear. It is possible that tnis right to have the unobstructed use of water from a public system of supply may