Opinion
Decided December 23d 1932.
1. A covenant by the seller of a business and its good will that he will not compete with the one sold by the covenantor "either directly or indirectly, for a period of three years, within a radius of sixty blocks from said bakery premises, in any direction, it being the intention that this restrictive covenant shall be limited to a radius of three miles," held, that the parties did not intend by the use of the word "radius" an exact circle, but an area roughly circular, and that such a covenant is sufficiently definite to be enforced.
2. Such a covenant will be enforced as to a particular location in which such a business is established in violation of the covenant, where the covenantor has shown by his own statements and conduct almost immediately after the sale that he realized that such establishment would be a violation.
On bill for injunction.
Mr. Louis K. Press, for the complainant.
Messrs. Cohen Klein, for the defendant.
The bill is brought to restrain Henry Maluvius from violating the covenant in a bill of sale executed by him to complainant on May 14th, 1932, for the bakery business, including "the good will thereof," located at 159 Grove street, Bloomfield, New Jersey.
The covenant in the bill of sale contained reads: "In further consideration of one dollar, the said Henry Maluvius agrees not to engage in the bakery business, either directly or indirectly, for a period of three years, within a radius of sixty city blocks, from said bakery premises, in any direction, it being the intention that this restrictive covenant shall be limited to a radius of three miles."
About June 24th, 1932, Maluvius purchased and commenced to operate a bakery at 37 Broad street, Bloomfield, New Jersey, within a mile and a half of the bakery which he sold complainant. Either just before or shortly after he purchased the Broad street bakery, he endeavored to procure a release from the covenant in question without success.
The covenant speaks of sixty city blocks, but definitely expresses "the intention that this restrictive covenant shall be limited to a radius of three miles."
The parties did not intend by the use of the word "radius" an exact circle, but an area roughly circular. Such a covenant is sufficiently definite to be enforced. Sandullo v. La Bruna, 111 N.J. Eq. 4.
The period, three years, during which time the restriction is to be effective, I think is reasonable. Moreover, the defendant knew that although he was not to establish a competing business within a radius of three miles, he engaged in the same business within one mile and a half a few weeks after he accepted complainant's money. That he knew and thoroughly understood the agreement which he made is clearly shown by his efforts to be released from the restrictive covenant in question. He will not be permitted to take whatever benefit he may thus obtain. It would result in allowing him to take advantage of a most unconscionable violation of his promise made upon a valuable consideration. Stein v. Kommit, 105 N.J. Eq. 90.
Decree will be advised restraining Maluvius according to the prayer of the bill.