111 Mich. 571 (69 N. W. 1109). See, also, Wilkinson v. Kneeland, 125 Mich. 261 (84 N. W. 142); Lum v. Fairbanks, 155 Mich. 23 (118 N. W. 578); Bliss v. Saginaw Circuit Judge, 159 Mich. 507 (124 N. W. 561). The matter has been presented on the part of the appellants with reference to the authorities and the reason sustaining the proposition that within the time limited by the statute, noncompliance with various statutory provisions by the appealing party may be waived by the appellee. As has been pointed out, this proposition is not controlling. The legislature has given a possible limit of time amounting to one year and six months from the entry of a decree for perfecting an appeal to this court. In this cause that time has been exceeded by more than a year. It is apparent that, if the parties in such a cause may by consent extend the statutory period for appealing one day, they may extend it indefinitely, and, if this right could be admitted, appeals in chancery would not be controlled by the authority without which they could not be taken at all, but by the convenience of counsel. There is a class of cases, and they are referred to by Mr. Justice HOOKER in Waterman v. Bailey, supra, in which the court refused to dismiss appeals because parties desiring to appeal were prevented from doing so by the default of the court or of some of its officers. Such a case was Cameron v. Calkins, 43 Mich. 191 (5 N. W. 292). Another is City of Kalamazoo v. Power Co., 122 Mich. 489 (81 N. W. 426). In Cameron v. Calkins it was said:

"We cannot think the legislature intended to deprive a party of his right to an appeal because not taken within a time fixed from circumstances beyond his control. Where it is within the power of a party to have his case settled, and he does not do so, he may well be held bound thereby; but where the delay is caused by officers of the court over whom he has no control, and without fault or want of due diligence on his part, we are of opinion that a settlement made after the period of three months will be good."

This court has repeatedly held that the payment of the

register's fee within the time required by the statute is jurisdictional. Bennett v. Hickey, 110 Mich. 628 (68 N. W. 650); Trombly v. Klersy, 139 Mich. 311 (102 N. W. 736); Thompson v. McKay, 154 Mich. 228 (117 N. W. 624); Lum v. Fairbanks, 155 Mich. 23 (118 N. W. 578).

Although attention has been called to the fact that no case for review has yet been settled and signed by the circuit judge, we do not rest decision upon that fact. We hold, in conformity with repeated decisions of the court, that the statute fixes a time within which appeals in chancery must be perfected, and that a party desiring to appeal must within that time perfect his appeal; for the failure to do which, the right to appeal is lost and cannot be restored by the court.

The motion to dismiss is granted, but without costs.

WEICKGENANT v. ECCLES.

1. CONTRACTS-RESTRAINT of TRADE-CONSIDERATION.

A written agreement, made after concluding an oral sale of defendant's business and after payment of a part of the purchase price, might contain an additional clause or promise not included in the parol agreement, and prohibiting the defendant from engaging in business within the city, where the sale took place, while complainant should remain in business there; payment of the purchase price was sufficient consideration to support the covenant.

In a written contract all previous parol contracts relating to the same matter are merged, and they are not admissible in evidence.

3. SAME-ILLEGALITY-PUBLIC POLICY.

The clause in restraint of trade was neither unreasonable as to space or time, and was valid, being within the exception of Act No. 329, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2942). 4. SAME

INCOMPETENCY-RATIFICATION.

On the ground of alleged incompetency to contract, proof of defendant's nervous and weakened condition was not a sufficient foundation to invalidate the restrictive covenant in the contract, which he had not attempted to repudiate as a whole by returning the consideration or by other affirmative action, although he had recovered his health and desired to re-engage in business.

5. SAME-CONSPIRACY.

Evidence showing that defendent's wife opened a furniture business under the name of Eccles Furniture Company, that defendant furnished the money and credit to launch it, and acted as manager, using his wife's name and the trade name to evade the stipulation against competition with complainant, and that she knew about the agreement, warranted a finding of conspiracy between them to violate the terms of the covenant and justified a decree against both restraining them from violating the contract.

Appeal from Calhoun; North, J.

1912.

(Docket No. 90.)

Submitted June 19, Decided March 20, 1913.

Bill by Jacob Weickgenant against Charles Eccles and Lulu J. Eccles, his wife, for an injunction. From a decree for complainant, defendants appeal. Affirmed.

James H. Mustard, for complainant.

O. S. Clark, for defendants.

BIRD, J. This is an injunction suit to restrain the defendants from carrying on the business of selling furniture at retail, in competition with complainant, in the city of Battle Creek. The trial court granted the relief prayed for in the bill, and the defendants have appealed.

It is charged in the bill that in October, 1908, the defendant Charles W. Eccles was engaged in the business of selling at retail, furniture, carpets, curtains, and draperies, and that on the 22d day of October he conveyed

by bill of sale his entire stock of merchandise, together with the good will, fixtures, delivery wagon, horse, and lease of the building in which the business was being carried on, to complainant for a consideration of $7,750. The book accounts were also included in the transfer with a provision that complainant should pay all bills owing by defendant on account of the business. The bill of sale contained the following paragraph with reference to the good will of the business:

"And the said party of the first part for and in consideration of money herein before mentioned received by him further agrees that for the protection of the said Jacob Weickgenant, party of the second part, in carrying on the business of selling furniture and other things connected with said business, and for and in consideration of the good will of said business hereby granted to said party of the second part by said party of the first part, that he will not at any time while said party of the second part is engaged in the furniture business in the city of Battle Creek, or in the business of selling furniture, carpets, draperies or floor coverings, either directly or indirectly engage in said business in the city of Battle Creek."

It is further charged that in January, 1911, and in violation of said agreement, the said Charles W. Eccles opened a retail store in Battle Creek for the sale of the same class of goods as he had theretofore sold to complainant, and that he is selling such goods in competition with complainant under the trade-name of "Eccles Furniture Company;" that, while his wife, Lulu, has filed with the county clerk an affidavit stating that she is the sole owner of said stock of merchandise, the said Charles W. is attending to the business, looking after the advertising, making contracts for the purchase and sale of goods; and that the business has been almost wholly financed by him, and that, in fact, it is his business. It is charged that the said Lulu had knowledge of the contract existing between her husband and complainant, and that she is conspiring with her husband to evade the terms of said contract.

The defendants deny that they are engaged in any con

spiracy to defraud complainant, and allege that the said Lulu J. is the sole owner of said stock of goods, and that Charles W. is interested only to the extent of assisting her in carrying on her business. They rely upon the following propositions to reverse the decree of the lower court:

"(1) The alleged contract, Exhibit A, was not a part of, nor connected with, the sale of the stock which had occurred three days before, was and is void for want of consideration; any promise or agreement contained therein being a mere gratuity and not enforceable.

"(2) The alleged contract, Exhibit A, especially the clause containing the agreement not to engage in business, is an unreasonable restraint of trade, unconscionable and void.

"(3) At the time of the execution of the alleged contract, Exhibit A, the defendant Charles W. Eccles was of unsound mind, incompetent, and not in a mental condition to enter into a valid and binding agreement.

"(4) The money received from the sale to complainant was turned over by Mr. Eccles to his wife, about one-half of the original investment having been contributed by her for a valuable and sufficient consideration, viz., her agreement and assuming the responsibility of the care and support of the family consisting of the parties, and four small children to be supported and educated. This fund has since been retained and used by her for the purposes named.

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(5) There is no claim on the part of the complainant that Mrs. Eccles was a party or had any knowledge of the alleged contract, Exhibit A; nor does complainant claim to have acquired the right to use the name 'Eccles'; hence she cannot be deprived of the right to conduct business in her own name.

"(6) The defense is not based on any claim of right to set aside the sale of the stock and business, including the assignment of the lease of the building, and the good will (impersonal) connected therewith, as shown by the evidence of the transaction between the parties on the evening of the 19th, when sale was consummated and possession given, and the acts of the parties immediately following the sale."

1. An oral agreement for the sale of the stock was