Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.

The California Steam Navigation Company is and has been for many years a corporation organized under the laws of California for navigating the Pacific Ocean and the waters of the State of California, with boats or vessels in whole or in part propelled by steam. The Oregon Steam Navigation Company has also for several years been a corporation organized under the laws of the State of Oregon for the purpose of engaging “in the navigation, by steam or otherwise, of the Columbia'River from its mouth to the forty-ninth parallel of north latitude, and Snake River from its mouth to Fort Boise, and Willamette River from its mouth to Eugene City, and the Pacific and other oceans.”

On the second day of May, 1864, said California Steam Navigation Company owned the steamboat “New World” and her machinery, and sold her to the Oregon Steam Navigation Company; and said last named company, in part consideration of the sale, executed and delivered to the California Steam Navigation Company the following instrument in writing:

“ Memorandum of the agreement made and entered into between the Oregon Steam Navigation Company, of the State of Oregon, and the California Steam Navigation Company, of the State oj California.

“Whereas,the said California Steam Navigation Company have sold to the said Oregon Steam Navigation Company the steamboat called the New World, for the consideration of the sum of seventy-five thousand dollars, and also for a covenant and agreement by the said Oregon Steam Navigation Company that the said steamboat shall not be run upon any of the routes of travel on the rivers, bays, or waters of the State of California for the period of ten years from the first day of May, 1864:

“Now, these presents are intended to evidence the said covenant and agreement; and the said Oregon Steam Navigation Company, for themselves, their successors and assigns, hath agreed, and doth hereby covenant and agree, in consideration of the premises, that they will not run or employ, or suffer to be run or employed, the said steamboat New World upon any of the routes-of travel on the rivers, bays, or waters of the State of California for the period of ten years from the first day of May, 1864.

“And the said Oregon Steam Navigation Company have further covenanted and agreed that the machinery of the said steamboat New World shall not be run or employed in running any steamboat, vessel, or craft upon any of the routes of travel on the rivers, bays, or waters of the State of California for the period of ten years from the first day of May, 1864.

“And the said Oregon Steam Navigation Company doth hereby agree that, in case of any breach of this covenant and agreement, to pay to the said California Steam Navigation Company the sum of seventy-five thousand dollars, in gold coin of the United States, as actual liquidated damages; but this provision shall not have the effect to prevent the said California Steam Navigation Company from taking such other remedy, by injunction or otherwise, as they may be advised.

“In witness whereof, the said Oregon Steam Navigation Company hath caused this instrument to be signed by its President and countersigned by its Secretary, and their corporate seal to be affixed, at Portland, Oregon,” etc.

“ [Signed,] J. C. Ainsworth, Pres’t O. S. N. Co.

“[seal o. s. n. co.]

“[Signed,] Geo. W. Murray, Sec’y O. S. N. Co.”

On the 18th day of February, 1867, the said Oregon Steam Navigation Company executed and delivered to Henry Winsor a bill of sale of said steamboat and machinery sufficient in law to transfer the title thereto, which bill of sale contained the following provision :

“And it is understood and agreed that this sale is upon the express condition that said steamboat or vessel is not within ten years from the first day of May, 1867, .to be run upon any of the routes of travel, on the rivers, bays, or waters of the State of California, or the Columbia River and its tributaries; and that during the same period last aforesaid, the machinery of the said steamboat shall not be run or employed in running any steamboat or craft upon any of the routes of travel on the rivers, bays, or waters of the State of California, or the Columbia River and its tributaries.”

In consideration of said sale, Clavrick Crosby, Henry Winsor, Nathaniel Crosby, and Calvin N. Hale, at the same time executed and delivered to said Oregon Steam Navigation Company a bond conditioned for the observance of said provision. In said bond it is recited that said obligors were joint purchasers of said New World and her machinery.

On the 7th day of March, 1867, said Winsor executed and delivered to said Hale a bill of sale of said vessel and machinery, and delivered the same. Said bill of sale did not contain any provision or condition.

Thereafter, and on the 23d of November, 1867, said obligors in said bond, except said Hale, executed and delivered to plaintiff and Duncan B. Finch a bill of sale in the usual form, of said steamboat and machinery, but said bill of sale did not contain said provisions, or any allusions thereto; nor did said plaintiff' or Finch ever enter into any agreement or execute any bond in any manner relating or alluding to said agreement of the Oregon Steam Navigation Company, or said provision in the bill of sale to said Winsor. At that date said Finch and Wright knew the terms of said provision, and the contents of the agreement of the Oregon Company.

On the 16th day of July, 1868, the defendant Ryder applied to the plaintiff' Wright to purchase the “New World” and her machinery, for the purpose of running the same as a passenger and freight boat from San Francisco to Vallejo, a town on the Bay of San Francisco, about thirty miles distant from San Francisco; and thereupon it was agreed between the plaintiff and defendant in writing, signed by each, and mutually delivered, as follows:

“1st. That plaintiff was the sole owner of said steamboat, her machinery, etc.

“2d. That plaintiff had good right and lawful authority to sell and convey the same to defendant.

“ 3d. That defendant would and should have good right and lawful authority to run the said steamboat and her machinery as a passenger and freight boat from San Fran-. cisco aforesaid to said wharves near Vallejo aforesaid, and transport thereon, for hire, passengers and freight.

“4th. That defendant could not be finally enjoined or restrained, by any person or corporation, from running the same, and transporting thereby freight and passengers as aforesaid.”

That within twenty days thereafter plaintiff would deliver said boat and her machinery to defendant, and would execute and deliver to defendant a bill of sale, in due form of law, conveying the same to defendant. And on the part oí defendant, it was agreed with plaintiff as follows:

“ 1st. That defendant would, on the execution and delivery of said bill of sale and tender of possession of said boat and machinery, accept the same and pay to plaintiff therefor twenty-two thousand five hundred dollars, gold coin, and execute and deliver to plaintiff his promissory note for forty-one thousand dollars, payable April 1st, 1869, in like coin, and a mortgage on said boat and her machinery to secure the same.’"'

On the twentieth day after making said written agreement, plaintiff tendered to defendant possession of said boat and her machinery, and tendered to defendant a bill of sale, duly executed by plaintiff, sufficient in form to convey to defendant said steamboat and her machinery, and tendered to defendant a note and mortgage, to be executed by defendant pursuant to such agreement. The defendant on said day accepted possession of the boat and bill of sale, but refused to execute the note and mortgage and pay the twenty-two thousand five hundred dollars to the plaintiff. On the 10th day of August, 1868, the defendant offered to return to plaintiff the boat and machinery in the same condition as when he received it, but the plaintiff refused to receive it. The defendant did not know until after he received possession of the boat of the said agreement between the Oregon Steam Navigation Company and the California Steam Navigation Company, and the said provision contained in the bill of sale to Winsor.

The California Steam Navigation Company was, on the date of said agreement with the Oregon Company, and still is engaged in running steamboats and carrying passengers and freight for hire from the City of San Francisco to Vallejo and back. Said Oregon Steam Navigation Company, and said California Steam Navigation Company, respectively, threatened to prevent defendant from running said boat and her machinery on the waters of the State of California, and published a notice to that effect in the public newspapers published in the City and County of San Francisco. Said steamboat was not at the time of the commencement of this suit in condition to be run as a freight and passenger boat between San Francisco and Vallejo, but would require the expenditure of thirty thousand dollars to put her in such condition.

On the 29th day of September, 1868, this action was commenced to recover judgment against the defendant for said sum of twenty-two thousand five hundred dollars, and to have the same declared a lien on the “New World,” and to obtain further judgment compelling the defendant to execute and deliver a mortgage to the plaintiff for forty-one thousand dollars, the remainder of the purchase money.

The complaint set up the agreement of sale between plaintiff and defendant, and the delivery of the “New Wotid,” and demand on defendant to comply with the agreement, and his refusal, and prayed for relief. The answer set up the other facts recited as a defense. The plaintiff demurred to the answer, and the demurrer was sustained and judgment rendered for the plaintiff by default.

The defendant appealed.

The other facts are stated in the opinion of the Court.

Wilson & Crittenden, for the Oregon Steam Navigation Company.

By leave of the Court, and with the consent of the attorneys of appellant and respondent, we appear on behalf of the Oregon Steam Navigation Company, which, though not a party to the record, was a party to some of the transactions out of which this controversy has arisen, and is directly interested in the questions which it seems to be the object of this action to raise and to have determined by this Court.

The doctrine of the Courts in respect to contracts in restraint of trade has undergone many fluctuations. The rule declaring such contracts to be void seems to have originated in certain old laws of England, by which no person was allowed to engage in particular kinds of trade or business, without first serving a lengthy apprenticeship. It was supposed to be contrary to public policy for a person to bind himself not to engage in a business for which lie had thus become qualified, as the public would be deprived of the benefit of his training and experience in such business, and the tendency of the contract, on account of the prohibition as to other kinds of business, would be to take from him the means of support, and reduce him to the position of a pauper. These and similar considerations induced the English Courts, at a very early day, to declare such contracts void; and so excessive was their aversion to them that they refused to admit any exceptions or qualifications. In the first reported case on the subject, (Year Book, 2 Henry V,) the Judges became indignant and threatened to send the plaintiff to prison; and for a long time contracts of this character were treated with the greatest severity. Eventually, however, a change took place, and modifications were gradually introduced, until, in various cases, and among others the case of Mitchell v. Reynolds, 1 P. Will. 181, it was held that while a contract in general restraint of trade was void, a contract limited to a particular place was not. The Courts of England have ever since acted in accordance with this view, but in respect to the limit to be assigned to the restraint they have frequently taken a very wide range. Thus, in Whittaker v. Howe, 43 Eng. Ch. 383, a solicitor had sold out his business and agreed not to practice in any part of Great Britain for twenty years, and the Court sustained the agreement. Without referring to other cases, it is sufficient to say that the settled doctrine in England is that where the contract is founded on a valuable consideration, the only question is as to its reasonableness, and that this is a question depending on the circumstances of each particular case.

Iu this country the English rule, as originally laid down, has never prevailed. The s'ame reasons not existing here, the rule has uniformly been rejected by our Courts; and while, in many of. the cases, it is conceded, in deference to English adjudications, that contracts in general restraint of trade are invalid, a strong inclination has been exhibited to repudiate the whole doctrine on the subject. In Presbury v. Fisher, 18 Miss. 50, the Court said: “ The liberality of our laws, in suffering any man to engage in any trade or occupation he may think best, without any previous apprenticeship, has blunted our perception of the utility of the principle which avoids contracts made in restraint of trade.” Parsons, in speaking of the strict rule originally existing in England, says that “in the application of this rule we shall see a gradual enlargement, until in this country, at least, it seems to be little more than nominal.” (2 Par. Con. 751.) He admits, however, that a contract without any limitation is void, and cites the case of Alger v. Thaeher, 19 Pick. 51, where the defendant had executed a bond conditioned that he should never carry on or be concerned in the business of founding or casting iron.

In Perkins v. Lyman, 9 Mass. 494, an agreement by the defendant that he would not be engaged in or carry on the fur trade on the northwest coast of America for the space of seven years, was held to be valid. In Stearns v. Barrett, 1 Pick. 443, the parties, being joint inventors of certain machines, agreed between themselves that one should have the exclusive use and sale of the machines in Massachusetts and Rhode Island, and the other elsewhere throughout the United States; and the Court sustained the agreement. In Palmer v. Stebbins, 3 Pick. 188, a bond was maintained by which the defendant had bound himself to give the plaintiff the freighting of all his goods up and down the Connecticut River, and not encourage any other boatman to compete with the plaintiff in the business of boating.

Iu Dunlop v. Gregory, 10 N. Y. 241, the circumstances were similar to those existing in the present case. A steamboat had been sold under an agreement that she should not be run as a passenger boat on the Hudson River above a certain point. The Court sustained the agreement. We cite this case for the purpose of showing that if . the provisions in question here are not invalid as being in restraint of trade, there is no other ground on which their validity can be attacked. In Alcock v. Gibefton, 5 Duer, 76, an agreement was sustained binding the defendants never afterwards to engage in the business of manufacturing porcelain teeth, or imparting the knowledge of manufacturing the same to any other person than the plaintiff. There was no limitation either as to time or space. The case of Jarvis v. Peck, 10 Paige, 118, involved the same point and was decided in the same way. In Presbury v. Pisher, 18 Miss. 50, the defendants, being publishers of a counterfeit detector, sold their business to the plaintiff, and executed to him a penal bond conditioned that they should not thereafter engage in the business of publishing any such paper. The condition of the bond also included any other person, who subsequently commenced the publication of a detector; and the brnd was held to be valid, although no limit was prescribed in it. In Billings v. Ames, 32 Miss. 265, the plaintiff, who was the owner of a patented process for putting up eemetned hams, had sued the defendants for a violation of his patent; and the defendants, in consideration that the plaintiff would dismiss his suit, and allow them the partial use of the pa.ent for a year, had agreed that they would not thereafter manufacture or put up cemented hams of any kind during the existence of the patent, no other limit being named.

In Duffy v. Shoekey, 11 Ind. 70, the defendant bad sold to the plaintiffs his marble and monument shop, and agreed that he would not establish a similar shop within certain limits, covering a space of several hundred mies. The agreement was held to be valid; and one of the questions was, whether the limits were reasonable. (Bee, also, Chappel v. Brockway, 21 Wend. 157; Richardson v. Mellish, 2 Bing. 229; Gal. Steam Nao. Go. v. Wright, 6 Cal. 258.)

Such contracts are not set aside because of their effect as between the parties, but because they are detrimental to the public good; and so long as the public are not injured by them, there is no policy to be subserved by declaring them invalid. If A. should contract with B. to pay him a sum of money in consideration that he would abandon his occupation as a carpenter, and B. should abandon it accordingly, the contract, looking at it merely as between the parties, would hardly be rejected as of no validity, although A. could not be benefited by the abandonment. And as the country is full of carpenters, we do not see in what way such a contract would be injurious to the public, and cannot imagine any rational ground on which it could be set aside.

In the present case, however, it is unnecessary to pursue this course of argument, for the restrictions imposed are such that no Court in this country, under any proper application of the rule laid down by the authorities here, can regard them as unreasonable. It was the right of the parties to protect themselves against the running of the boat to their injury, and there is nothing in the case indicating that they have done or attempted to do anything more.

Our next position is, that the doctrine relating to contracts in restraint of trade has no application to the provisions in question. 3STo one is restrained by them from engaging in any business or occupation, and there is not the shadow of a reason for setting them aside as being injurious to the public. The owner of property may do with it as he pleases, and if he chooses to sell it, he is under no obligation to consult the public as to the terms of the sale. There is an obvious distinction, so far as the public are concerned, between a restraint affecting an individual in respect to his business, and one which merely affects him as to the use of particular property. There is some ground for saying that as to the former the public have an interest, but there is no foundation for any such position in regard to the latter. The eases in relation to business secrets seem to us directly in point in support of this view, for they show that in dealing with interests of which a party has exclusive control, he may bind himself to any extent in" respect to such interests. (Bryson v. Whitehead,, 1 Eng. Ch. 74.)