10 Wall. 218, 19 L. Ed. 941. But it would seem that, if the proceedings in the state court have proceeded so far that a sale has been had upon its judgment, it would operate as a waiver of the lien, provided that the court assumed to sell the entire vessel and all rights and interests therein. In The Kalorama, the court, referring to the suggestion that the lien was waived by the commencement of an action for the same claim in the state court, said:

"But the record shows that the action is still pending, and it is well-settled law that the pendency of such an action is no bar to a suit in a federal court. Had the judgment been rendered, it might have been different."

In Moran v. Sturges, 154 U. S. 277, 14 Sup. Ct. 1025, 38 L. Ed. 981, the court said:

"If, then, the receiver had first taken actual possession of these vessels and sold them, such sale would not have cut off maritime liens and the right to have them enforced; and while it may be true that the state courts exercising equitable jurisdiction might undertake in the distribution of property to save the rights of holders of maritime liens, yet it is certain that those courts would have no power by a sale under statute to destroy their liens, unless they had voluntarily submitted themselves to that jurisdiction."

The inference to be drawn from this language of the opinion is that, if the lienholders had submitted themselves to the jurisdiction of the state court, the sale would have divested the vessel of their liens. In The Resolute, 168 U. S. 441, 18 Sup. Ct. 112, 42 L. Ed. 533, Mr. Justice Brown said:

"Did the order direct these vessels to be sold free of maritime liens or subject to them, or was it silent in this particular? Were the lienholders upon these vessels paid from the purchase money according to their relative rank as they would have been had the sale been conducted by a court of admiralty? If they were, that would amount to very strong, if not conclusive, evidence against the subsequent endeavor to enforce the liens in a court of admiralty."

In Dudley v. The Superior and Sexton v. The Troy, 1 Newb. Adm. 176, Fed. Cas. No. 4,115, certain holders of maritime liens and nonmaritime liens seized the vessels subject thereto by process from the state courts. Afterwards the boats were sold under the order of the court of admiralty, and the proceeds paid into the registry thereof. Holders of the nonmaritime liens asserted the right to share equally in the funds with those who held liens originally maritime, and who had not made seizures under the state law. The court expressed the view that a party who has voluntarily waived his admiralty lien and resorted to the local law for his indemnity and protection could not resume his lien at his pleasure, and thereby be reinstated in his original rights. So, in Stapp v. Steamboat Swallow, 1 Bond, 190, Fed. Cas. No. 13,305, it was said:

"It is, however, clearly consonant with reason and the analogies of law that if a party having an undisputed maritime lien voluntarily waives it by seeking another remedy he cannot be reinstated in his original right."

A case directly in point is The Mary Morgan (D. C.) 28 Fed. 196–202, in which the court said:

"I can recall no instance in which a creditor may sell his debtor's property a second time for the same debt. He invites the public to purchase, proposing

to take the proceeds while the purchaser takes the property. How can he afterwards, in effect, claim the property also?"

It would seem, in view of these decisions and expressions of the court, that under the admiralty law applicable to the enforcement of liens one who participates in such a proceeding in a state court resulting in a sale at his instance, loses his lien, if not by estoppel, at least by laches. The Seminole (D. C.) 42 Fed. 924.

But aside from the question of estoppel by the judgment and sale under the proceedings of the state court or the laches of the appellee, we think his conduct and representations to the appellant estop him now to assert a lien against the vessel. He duly presented his claim to the receiver in the state court, and his claim was allowed. After that court had ordered the sale of the vessel, he went to the officers of the appellant, and urged them to become purchasers at the sale. At the time of the sale he was present, conferring with the president of the appellant; and when the latter inquired of the receiver if all claims against the vessel were included in the proceedings, and the receiver replied that they were, the appellee made no denial of that statement. A month later, and after the sale had been confirmed, he appeared with his attorneys before the state court, and he testified concerning his claim and the items thereof. It was not until the court had announced its decision adjudging Clark's lien to be prior to his that the appellee withdrew his claim. He testified in the present case that prior to the sale he stated to Williams, the treasurer of the appellant, that he thought the vessel would sell for about a thousand dollars, and that he would get practically all the proceeds after payment of the receiver, and that he further said that, if the appellant would buy her, the money that she was sold for would come to him, and that Williams "was satisfied to that effect." In what plainer language could he have informed the appellant that his claim was included among those for the satisfaction of which the vessel was to be sold? The force of his statement to Williams is not modified by the fact that he testified that he further said that he calculated to get his money out of that vessel, no matter what became of her, or who would buy her. The plain inference to be drawn from all that he said was that he looked to the proceeds of that sale to satisfy his lien, and that Williams was satisfied to that effect. He does not deny that he told the secretary of the appellant that liens had been filed with the receiver, and that the schooner was going to be sold, and that among other claims was his own. The learned judge of the District Court was of the opinion that, if the proof showed that the appellee induced the claimant to purchase the vessel by making a verbal agreement to relinquish his claim and to look to the purchase money, and that the amount bid was sufficient to pay him any considerable part of the amount which he was justly entitled to receive, there would be substantial ground for an estoppel, but that there could be no estoppel from the facts proved for the reason that the amount bid was not sufficient to pay him anything. We think that the fact that the amount bid was not sufficient under the order of distribution made by the state court to pay the appellee anything is wholly immaterial to

the question under discussion. The estoppel consists in the appellee's conduct and representations and the act of the appellant thereby induced. It is in no way affected by the subsequent disposition of the money, or by the fact that the expectation of the appellee was not realized. The appellant had the right to rely on his representations. It became the purchaser at his instance, and upon his assurance that his claim was one for the payment of which the vessel was being sold. We are not unmindful of the general rule that the lien of a seaman for his wages is under the protection of courts of admiralty, and that nothing short of absolute payment, or some act on his part showing an intelligent intention to waive his lien, shall be construed as a waiver thereof, and that courts of admiralty take notice of the improvidence, the ignorance, and the guilelessness of seamen, and protect their interests. But we see no place for the application of the rule to the present case. A mariner who for 15 years has had experience as a master and navigator of vessels can hardly be said to come into court in the attitude of a ward of the admiralty. There is nothing in this case to show that the appellee was overreached, or unjustly dealt with. He was represented in the proceedings in the state court by able counsel, and he appears to have been fully capable of taking care of himself. His chief solicitude seems to have been to obtain a bidder upon the vessel for his own benefit, and to exclude the claim of the other lienholder. There can be no doubt of the power of a seaman to release his claim of lien if the release is made upon adequate consideration, or upon some corresponding benefit resulting to him. International (D. C.) 30 Fed. 375. In the Olive Mount (D. C.) 50 Fed. 563, Nelson, District Judge, held that seamen who had authorized the owner of their vessels to make settlement in their behalf of all claims for salvage could not, after such settlement, collect against the salved property. Said the court:

The

"They all had knowledge of the negotiations going on between the owners of the vessel and the company for the settlement, but they made no objections. set up no separate claim, nor asked nor expected to be consulted. The vessel also was delivered up to the owners without objections from them. They claimed their share after the money was paid, and it was only after their failure to come to an agreement with the company that they brought this suit. Their demand on the company ratified the settlement even if no previous authority had been given.”

So in the present case it appears that the appellee participated in the proceedings in the state court, consented to the sale of the vessel, urged the appellant to become a purchaser, gave it to understand that his claim was to be settled by the purchase money, acquiesced in the sale after it was made and in the delivery of the vessel to the appellant, and made no objection to any of the proceedings until he found that the claim of Clark, whom he specially desired to exclude from participation in the fund, had been adjudged to be superior to his own. Every consideration of justice and fair dealing leads to the conclusion that these facts constitute an estoppel in pais.

The objection is made that the answer is not so framed as to present the defense of estoppel. No objection was interposed to the tes timony on that ground. The court below considered it as one of

the defenses in the case, and we are justified in so regarding it here. It is the facts pleaded that constitute an estoppel in any given case, and not the term by which the defense may be designated.

The decree of the District Court is reversed, and the cause is remanded, with instruction to dismiss the libel.

DAVIS et al. v. A. BOOTH & CO.

(Circuit Court of Appeals, Sixth Circuit. August 2, 1904.)

No. 1,310.

1. SALES-GOOD WILL-EQUITY-JURISDICTION-MULTIPLICITY OF SUITS. Equity has jurisdiction to restrain the violation of an agreement entered into as a part of the sale of a business, by which the persons interested therein agreed not to again engage in business in certain localities for a definite time, because of the difficulty in estimating the damages accruing, and to prevent a multiplicity of suits.

2. SAME-VALIDITY OF CONTRACT-PUBLIC POLICY.

An agreement by which the stockholders of a corporation, on selling its assets to complainant's assignor, agreed not to again engage in a similar business in specified localities for a period of 10 years, or do any act tending to impair the good will of the business sold, was not contrary to public policy.

3. SAME-ANTI-TRUST ACT.

Where a corporation engaged in the business of buying and selling fish sold out its assets and good will to plaintiff's assignor, and the seller no longer retained any interest in the property, so that the sale was not a mere combination of owners and properties under one management, the sale was not in violation of the federal anti-trust act of July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], prohibiting contracts in restraint of trade, though the contract might incidentally or in some remote degree injuriously affect interstate commerce.

3 How. Ann. St. § 9354j, denominated an act prohibiting certain trust combinations, and providing that all contracts, the purpose or intent of which shall be in any manner to prevent or restrict free competition in the sale of any article or commodity, or in any other branch of business or labor, shall be utterly illegal and void, provided that it shall not invalidate or affect contracts for the sale of the good will of a trade or business, does not prohibit a contract for the sale of a business where it was not intended that the seller should thereafter have any interest in the property, or an agreement by which the seller's stockholders contracted not to again engage in a similar business in competition with the buyer in certain places for a specified time.

An agreement ancillary to a sale of a corporation's business, by which the stockholders, who received the purchase price, agreed that, in order to protect the good will of the business so sold, they would not either directly or indirectly engage in the same business within certain distinct limits for a period of 10 years, was not void, as an unreasonable restraint of competition in trade, at common law.

6. SAME-CONSTRUCTION.

Where a contract ancillary to the sale of a business provided that the stockholders of the seller would not again engage in a similar business

11. See Injunction, vol. 27, Cent. Dig. § 121.

for a period of 10 years in the territory, or the immediate vicinity of the territory, dealt in by the corporation, or operated in by it or its agents, or the immediate vicinity of such territory, the localities guarded against were restricted to those in which the selling company had establishments for doing business, and the immediate vicinity thereof, and did not include all parts or every one of the United States in which a former customer resided, or into which the corporation's correspondence had extended, or through which an agent of the company had traveled.

Appeal from the Circuit Court of the United States for the Eastern District of Michigan.

For opinion below, see 127 Fed. 875.

Edward E. Kane and Fred A. Baker, for appellants.

Henry M. Duffield and Charles S. Thornton, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS, Circuit Judge. The object of this bill filed in the Circuit Court by the appellee, A. Booth & Co., was to obtain an injunction against the appellants to restrain them from violating an agreement made by them with William Vernon Booth, to the benefits of which the appellee claimed to be entitled. It states: That the complainant is a corporation organized under the laws of Illinois on August 1, 1898, with a capital of $5,500,000, for the purpose of buying, catching, and selling fish, and having its general office at Chicago. That the Davis Fresh & Salt Fish Company was a corporation organized under the laws of Michigan for a similar business, with headquarters at Detroit. That on or about August 14, 1898, the last-named company, for the consideration of $17,473.14, sold all its properties, including the good will of its business conducted at Detroit, and gave a bill of sale, with warranty of title, to William Vernon Booth, on September 14, 1898, and Davis gave a personal guaranty of the contract of sale. That, as an inducement to the sale, Davis and the other stockholders of the selling company entered into the following agreement:

"This instrument witnesseth, that William Vernon Booth has purchased the plant, business and good will of the business of the Davis Fresh & Salt Fish Co., and has paid therefor the sum of $17,473.14; that in making said transfer, and as an inducement to said William Vernon Booth to purchase said plant, business and good will and pay the sum aforesaid for the same, we each have agreed that we would not, and we now do agree, each for himself, jointly and severally with him, the said William Vernon Booth, his heirs and assigns, forever, that we will not, during the next ten years, in the territory or the immediate vicinity of the territory dealt in by our company, or operated in by ourselves or the agents or employces of the company engage or in any manner be interested in, either directly or indirectly, for ourselves or for others, the same or like kind or character of business as that heretofore conducted and now being carried on by said company, its officers, agents, employees and assigns, and that we will not, during the said period of ten (10) years, either directly or indirectly, be guilty of any act interfering with the business, its good will, its trade or its customers, or come in competition with the same; and we will not, jointly or severally either in firms or corporations, or as individuals or in any other way, directly or indirectly interfere with the said trade or business, or do any act prejudicial to the same or any part thereof, or interfere with the persons employed therein; the meaning hereof being that the said William Vernon Booth is buying and paying for the good will of the business in the largest and fullest scope of the term; and that we will not, and each agrees that he will not, do anything to interfere