1. Where contracts include distinct and separable obligations, some of which are legal and some prohibited, the legal obligations are nevertheless enforceable upon proper proofs.
2. On bill to enjoin defendant from violation of certain covenants of the lease in question, the first two covenants, whereby defendant lessee agreed not to assign or transfer his license for the retail distribution of liquors without the complainant lessor's written approval, and further agreed to apply in due time for the renewal of his license for the demised premises at the end of each license period, might well be regarded as contrary to the policy of the statute ( R.S. 33:1-26) and therefore unenforceable. However, the possible validity and effectiveness of the third covenant whereby defendant agreed not to engage in the business of retail distribution of alcoholic beverages in the Borough of Middlesex for a period of two years from the expiration of the lease or any renewal or extension thereof, cannot be ignored. There is nothing manifestly unreasonable in its restrictive character or offensive to public policy.
3. A person may lawfully agree to abstain from engaging in the business of selling liquors under a restrictive covenant like the third covenant of the lease under consideration, even though such business is under government supervision and requires a license.
4. In a suit to enforce a restrictive covenant in equity, it is not always prudent to determine the fairness of the protection and the reasonableness of the covenant solely from its language as reproduced on the face of the bill. Nor is it always discreet to decide whether several covenants, some affirmative and some negative in import, were intended to be interfused or separable, solely from their contiguity in the written instrument. Where the question is fairly debatable, consideration should be given to the factual conditions and circumstances amid which the covenants were created, and to the evident purpose which the parties contemplated the respective covenants would accomplish. Such an inquiry can appropriately be accomplished at final hearing.
5. The power to grant or to deny motions to strike bills in Chancery has been entrusted to the sound discretion of the Chancellor. Those who invoke the aid of a court of equity should be afforded the opportunity to be fully and completely heard if there is any reasonable probability that a denial of that privilege might unjustly and inconsiderately deprive them of the preventive or remedial aid of the court.
6. Complainant's right to enforce the covenants here in question being deemed controvertible, preliminary injunctive relief was denied. Defendant's motion, addressed to the bill in its entirety, would, if granted, precipitantly dismiss the entire cause, and was therefore denied.
PER CURIAM.
The order appealed from is affirmed, for the reasons stated in the opinion filed in the Court of Chancery.
For affirmance — THE CHIEF-JUSTICE, PARKER, BODINE, DONGES, HEHER, PERSKIE, COLIE, OLIPHANT, WACHENFELD, WELLS, DILL, FREUND, McGEEHAN, McLEAN, JJ. 14.
For reversal — None.