The defendant denied that he contracted to sell his practice, (296) good will and location to plaintiff, and alleges that he had merely sold his house and lot in Yadkinville to plaintiff. He did not deny that he was engaged in medical practice there. A restraining order had been issued, and had been continued to the final hearing.
The issues submitted and found in favor of plaintiff appear in the opinion; so, also, do the various motions submitted after the verdict. There was no exception taken in the course of the trial.
From the judgment rendering the injunction perpetual, the defendant appealed. *Page 176 The plaintiff alleged in the complaint that he and the defendant, on 6 April, 1897, entered into a contract in which the defendant agreed to sell to the plaintiff his house and lot — his residence — in Yadkinville, an incorporated town, and his practice as a physician, good will and location at Yadkinville, and that the plaintiff agreed to buy the same at the price of $1,000; that the defendant was, in the language of the complaint, "to turn over and deliver to the plaintiff, his location, good will and practice, and the territory surrounding Yadkinville," and that the defendant was never to practice as a physician at any time in said territory, with the exception of two patients (named), whom he reserved the right to treat till their recovery; and that the plaintiff was to take charge of said practice and location on 12 April, 1897. The seventh allegation of the complaint is as follows: (297) "That since 12 April, 1897, the defendant has informed this plaintiff that he does not intend to regard said contract and agreement, but that he is going to violate it by practicing as a physician in said location, and that he has violated said contract by practicing as a physician in said location, and is now violating the same, to the irreparable damage of the plaintiff." There was a prayer for injunctive relief against the defendant to prevent his practicing medicine in Yadkinville and the surrounding territory.
The defendant admitted in his answer that he agreed in writing to sell the plaintiff his house and lot in Yadkinville, but denied that he agreed to sell his practice, good will and location. He did not deny that he was practicing as a physician in Yadkinville and the surrounding territory after 12 April, but averred that he had fulfilled the contract by executing the deed in accordance therewith. Without exception on the part of defendant, two issues were submitted to the jury:
1. Did the defendant agree to sell to the plaintiff his dwelling house and two lots in Yadkinville, together with his practice, good will and location at Yadkinville, and the vicinity thereof (subject to the exception mentioned in the complaint), for the consideration of $1,000?
2. Has plaintiff performed his part of said contract?
Both issues were answered in the affirmative, and judgment was rendered perpetually enjoining and restraining the defendant from practicing as a physician within the town of Yadkinville, N.C. and the vicinity thereof.
There was not an exception of any kind made in the course of the trial until after the verdict was delivered. The defendant then moved for judgment non obstante veredicto. The foundation of this motion, according *Page 177 to defendant's argument, was that an issue ought to have been submitted by his Honor as to whether or not the defendant had violated his contract. He insisted that the violation by the defendant (298) of the contract was the gravamen of the plaintiff's action. With the last proposition we agree, but it clearly appears from the answer that the defendant did not deny the specific allegations of the complaint, in which it was charged that the contract had been violated by the defendant. The plaintiff in the complaint set out the alleged contract, and charged that the defendant had violated it, in that he had practiced medicine, and was continuing to practice after 12 April, 1897. The defendant in this answer, it is true, denied that he had violated the contract as he understood it, but he did not deny that he had practiced medicine in and around Yadkinville — in the territory in which the plaintiff alleged that he had agreed not to practice. The defendant averred in his answer that there was no contract except the one for the sale of the house and lot, and that "he has in every respect fulfilled the same by executing the deed in accordance therewith."
So, the jury having found that the contract was as the plaintiff had alleged it to be — for the sale of the house and lot, and the practice, location and good will of the defendant, and that the plaintiff had performed his part of the contract, and the plaintiff having alleged that the defendant violated the contract in that he had practiced, and was still practicing in the territory in which he had agreed not to practice his profession, it was unnecessary to submit an issue as to whether the defendant had violated the contract. Whenever any material allegation of a complaint is not controverted by the answer, such allegation is taken as true. Code, sec. 268. But the motion for judgment, notwithstanding the verdict, was properly overruled. Such a judgment is only granted in cases where the cause of action is confessed and the matter relied upon in avoidance is insufficient. Stephen Pleading, 97; Ward v. Philips,89 N.C. 215.
There was an exception entered to the judgment, which can be (299) treated with the motion made here to dismiss the action because the complaint did not state a cause of action, first, because the contract was too indefinite, and therefore void; and second, because it is in restraint of trade, contrary to public policy and void. This Court has held that such contracts do not fall under the head of contracts for the restraint of trade. Cowan v. Fairbrother, 118 N.C. 406; Kramer v. Old,119 N.C. 1.
It is argued for the defendant that the contract is uncertain, both as to the time during which it is to continue, and as to the territory over which it extends.
As to the uncertainty as to time, this Court has also held that where *Page 178 no time is mentioned in such contracts they are to endure during the lifetime of the grantor. Kramer v. Old, supra.
We are of the opinion, however, that the language of that part of the contract which undertakes to restrain the defendant from practicing medicine outside the town of Yadkinville is not sufficiently definite to mark and define any certain territory. The territory surrounding Yadkinville — the language of the contract — is so uncertain as to be incapable of being marked out or being identified. Such language does not in law define a prescribed territory. We know of no rule by which the territory could be laid off. The two judges below who heard that part of this case differed as to what was meant by the words "the territory surrounding Yadkinville."
We have examined with care the cases cited by the plaintiff's counsel on this point, and we think they do not sustain his contention.
The limits of the town of Yadkinville, an incorporated town, as appears from the record, are to be taken as well defined, and the contract (300) is not uncertain so far as it restrains the defendant from practicing medicine within its limits.
The judgment must be modified so as that the defendant will be enjoined and restrained during his life from practicing medicine within the corporate limits of the town of Yadkinville.
Modified and affirmed.
Cited: Shute v. Heath, 131 N.C. 286; Teague v. Schaub, 133 N.C. 469;Disosway v. Edwards, 134 N.C. 257; Anders v. Gardner, 151 N.C. 605;Wooten v. Harris, 153 N.C. 45; Faust v. Rohr, 166 N.C. 191.