Redden v. Inman. 1868, Smith assigned his contract to Inman, the appellee, and by arrangement between all parties, Smith's notes were to be exchanged for Inman's. The amount due on Smith's notes was computed by Rhoads, and he drew up three notes for $290 each, payable in one, two and three years, respectively, all bearing interest at the rate of ten per cent. per annum. Inman signed and delivered these latter notes to Rhoads. He paid nothing on them until November 11, 1872, when he paid $100. Rhoads died, and Redden, the appellant, succeeded him as executor in 1874, and to the latter Inman paid the balance on his notes, the payments, some six or seven in number, occurring at different times during the years '74, 75, '76 and '77, the last on the 17th November, 1877, when a deed was made to the wife of Inman at his request. Afterwards Inman brought suit against Redden to recover the difference between six and ten per cent. interest on these notes, alleging that the contract between him and Rhoads was that he was to pay but six per cent. interest, and that by mistake the notes called for ten. The cause was heard by the court, a jury being waived, and judgment was for plaintiff, from which defendant appealed. It is assigned as error, that the court permitted the plaintiff, Inman, to testify to the transaction between himself and Rhoads, since deceased, and as without this testimony the finding must have been otherwise, this assignment of error is material, and must be considered. At common law Inman was disqualified, because he was a party to the record, and because he was interested in the result. This disqualification was removed by Sec. 1 of the Act of 1867. See Ch. 51, R. S. But by Sec. 2 of the same act it is provided that no party to a suit or person interested therein, shall testify in his own behalf, when the adverse party sues or defends as the administrator, executor, heir, legatee or devisee of any deceased person, or subject to certain exceptions not necessary to be stated. In Boynton v. Phelps, 52 Ill. 210, the Supreme Court say: "The second section of this Act of 1877 clearly contemplates that the parties to a suit when one of them is offered as a witness against the other, shall occupy equal ground; that both shall be present in the flesh, or have power to be present," and it was held that the person for whose Redden v. Inman. use the suit was brought was a "party" within the meaning of the section, and he being dead the opposite party was incompetent. In Whitmer v. Rucker, 71 Ill. 410, the plaintiff was administrator of the payee of a note which was signed by the defendant and another person who was not a party to the suit, and it was held that the latter was not a competent witness against the plaintiff, and it was said that it is manifest "it was not intended that one party to the suit shall be a witness when from death or other cause the other party can not be heard to testify," and that "this, like all other remedial statutes, has a spirit that extends beyond the mere letter, and it is the duty of courts to so construe such statutes as to effectuate the object of the law-makers as gathered from the enactment." We think the considerations here stated apply with great force to the case at bar, and control it. The plaintiff sought to recover upon certain alleged matters occurring between himself and the deceased Rhoads. The defendant Redden, while he was the successor of Rhoads as the executor of Jones, was in fact the representative of Rhoads as to this transaction, which was really with Rhoads and not with Jones. Redden occupied substantially the position of administrator to Rhoads, and every reason which would have prevented Inman from testifying if Redden were nominally the administrator of Rhoads, would apply here. The mischief intended to be prevented by the second section, was that by the first a party to the suit might have an under and dangerous advantage, and would be under strong temptation to commit perjury if he were allowed to testify in regard to a transaction with the other party since deceased. We think the case clearly falls within the spirit of the act as expounded by the Supreme Court, and that the testimony of Inman should have been excluded from consideration. It is further urged that it was not admissible to hear parol evidence, such as was offered and heard to modify the terms of the notes. The plaintiff insisted that by his arrangement with Rhoads he was to have the benefit of Smith's contract, with an extension of time and at the same rate of interest. Smith's notes were to be surrendered. Rhoads computed the amount then due, and drew up the notes for Inman to sign. Redden v. Inman. Inman says he signed them without reading, and supposing they drew only six per cent. This transaction occurred in 1868. Nine years later he completed the payment, and the deed was executed according to his request. IIe afterwards brought this suit. Admitting that such evidence was competent in contradiction of the notes, we think the proofs in the case preclude a recovery. It would require more satisfactory evidence than appears in this record, to sustain the finding. It is a familiar rule that parol, contemporaneous evidence is inadmissible to contradict the terms of a valid written instrument. There was nothing in this case to prevent the application of this rule. The object of this evidence was to contradict the express terms of the written instruments, and thereby to substitute language different from that contained in the writing. It is competent to show by parol a subsequent verbal change, modification or discharge of a written contract; but it has never been held that a court of law could entertain an application to change or modify such an instrument upon contemporaneous, parol evidence. The negotiations of the parties having been reduced to writing, must be considered as merged in it, and the writing is to be regarded as the only outward expression of their meaning. It is then the duty of the court to interpret the language used, and while the contract will be read in the light of surrounding circumstances, and in connection with other writings pertaining to the same subject-matter, these are resorted to only for the purpose of more thoroughly ascertaining the just interpretation of the instrument. 1 Gr. Ev. 275 et seq. Courts of equity may entertain applications to reform and enforce such instruments when by accident, mistake or fraud the intention of the parties has not been truly set forth; but in such cases the applicant must stand upon favorable grounds of diligence and fair dealing, and the relief allowed must be equitable in its nature and operation to all concerned. We think no cause of action appears in this case, and that the judgment should have been for the defendant. Judgment reversed. MARY J. COBBS V. JAMES A. NIBLO ET AL. 1. CONTRACT IN RESTRAINT of trade-EQUITY JURISDICTION.-Parties may make a valid agreement in restraint of trade where the operation of the agreement is partial and limited under reasonable conditions, and where it is supported by a valuable consideration. Such a contract may be enforced by an action at law for the recovery of damages for its breach, and it may be upheld in equity by a decree requiring it to be specifically performed, and an injunction will be granted to restrain its violation. 2. INJUNCTION.-Under an agreement not to carry on a certain business in the county of A, in consideration of a partnership settlement and payment to the retiring partner of a certain sum for his share of the assets, a bill will lie to restrain him from setting up such business within the restricted territory. APPEAL from the Circuit Court of Richland county; the Hon. WILLIAM C. JONES, Judge, presiding. Opinion filed April 2, 1880. Messrs. WILSON & HUTCHINSON and Mr. F. D. PRESTON, for appellant; cited Bailey v. Moore, 25 Ill. 347; Linn v. Sigsbee, 67 Ill. 75; 2 Story's Eq. § 722. Messrs. SHAW & LONGENECKER, for appellees; that the limitation must be reasonable and the consideration capable of being upheld, cited Linn v. Sigsbee, 67 Ill. 75; Wiggins Ferry Co. v. O. & M. R. R. Co. 72 Ill. 360. A court of equity will not aid its enforcement: Craft v. McCorroughy, 79 Ill. 346; Wyatt v. Mayfield, Ill. Syn. Rep. 19; King v. Manning, 33 Ill. 227; Chittenden v. Rogers, 42 Ill. 95. WALL, J. The appellant filed her bill in Chancery, making the appellees parties defendant. The bill alleged that complainant and defendant, James A. Niblo, were partners in the marble business from January, 1876, to January, 1879; at the Cobbs v. Niblo. latter date the partnership was dissolved, upon certain terms then agreed upon, including among others, that if the complainant would pay defendant, James A. Niblo, seventy-five per cent. for his half of the goods, notes, contracts and accounts, after paying all firm debts, and take all finished work at cost and carriage, said Niblo would give complainant the worthless notes, and would go out of the business and not resume it in said Richland county; that an estimate was made accordingly, and that complainant paid the amount found due under the arrangement. That in making said estimate the complainant was compelled to rely upon the statements of defendant, and did so, and that said Niblo falsely represented the facts as to sundry matters set out in the bill, such as the amount of indebtedness of the firm, the amount and character of the firm assets, the amount received by Niblo from sundry persons, giving details and particulars not necessary to set out; that said Niblo was about to resume the marble business in the city of Olney, contrary to his agreement, but in the name of his wife, the co-defendant; that the house and lot where the business was to be conducted was held in the name of the wife, but really belonged to said James A., and that he had used the means derived from his settlement (including a note of some six hundred dollars) with complainant in the acquisition of said property. These are the main points presented in the bill, which sought to enjoin the prosecution of said marble business by said Niblo, and prayed for an account and adjustment of the various matters in which the alleged false representations had been made. The Circuit Court sustained a demurrer to the bill, and this ruling is assigned as error. The law is well settled that parties may make a valid agreement in restraint of trade where the operation of the agreement is partial and limited under reasonable conditions, and where it is supported by a valid consideration. The contract must be construed by the court, and its reasonable character determined. Such a contract may be enforced by an action at law for the recovery of damages for its breach, and it may be upheld in a court of equity by a decree requiring it to be specifically performed, and an injunction will be granted to restrain |