(dissenting):— Conceding the correctness of the general rule affirmed in the majority opinion, I think it equally true that in this class of contracts, as in others, the intention of the parties is to prevail. If, then, the language of the agreement, when read in its entirety in the light of all the attendant circumstances, indicates that the parties contemplated a possible violation of its terms by the seller, and stipulated the remedy of the purchaser in such case to be the right to demand and recover a fixed and certain sum in damages, equity will not entertain jurisdiction to enforce specific performance by the negative process of injunction. While the natural right of a man to pursue his chosen calling wherever he may elect to make his home is one which, within certain limits he may sell or barter away, yet it is a settled principle of public policy that such agreements will be closely scanned by the courts, and, in cases of doubt, will be given the construction most favorable to the unrestricted liberty of the parties to engage in any lawful enterprise or business. In my opinion, the contract in this case, as expressed in the written agreement for the sale of the defendant’s business, and emphasized by .the further stipulation indorsed on plaintiff’s note, clearly indicates a mutual intention and understanding that plaintiff’s only remedy in the event of defendant’s resumption of practice in Ackley was in damages.
Such being my view of the construction of the contract, I think the judgment below should be affirmed.