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tenien ?'. Witlxeck, 50 Mich, 401; that the goorlwill of a business is S. C., 15 X. W. Rep. 526. And the right to succeerd to it, or to the prolability that its old cus carry it on as the successor of the tomers will continue their custom old firm ? This last definition, it is and coinmend it to others : Myers contended, covers every material 7'. Kalamazoo Bugsy Co., 54 Mich. point, and does away with a great 215.
dcal of the haze which, as we shall These definitions, however, arc sce, still clings around the subject. only partial. While it is true that (6). The sources of goodwill being the main business of a firm is so various, it is evident that it must securing customers, and then serve luc an open question whether, in a ing them, it is cqually clear that given casc, it is an inciiicut of the the valuable element of the good. trade of the premises on which it will is that which attracts the cus is carried on, or of the personnel of tomers. That is, that in order to the firm ; and that that question properly define goorlwill, we must can only be selllal on the special go back of the rague generalizing circumstances of the case. It has ' which speaks of it us the probability been said that the general rule is to of securing the old customers, and regard the goolwill as an incident specify the causes which create of the premises : Rawson 7'. Pratt, that probability. It is true that in 91 Iud. 9; England v. Downs, 6 so doing we are going beyond the Beav. 269; Austen :. Boys, a DeG. proper bounds of a definition, for & J. 626; S. C., 4 Jur. X. S. 721; these causes are legion ; but noth. Berganini v. Bastian, 35 La. da. ing else can give an adequate idea 60; Elliott's App.. bu Pa. 161. of what goodwill really is. Accord. And there are many cases in which ingly, thic description giveu by Mr. this would be true, as in case of a Justice STORY, in his work on Part. tavern or a hotel : Elliott's App., nership (7th Ed.). 199. is far pre supra. Or where business anil premiserable to any of those previously iscs are both Icaser: Chittcnden v. cited. “This goodwill," he says, Willbeck, so Mich. 401 ; S. C., 15 "may be properly enough described X. W. Rep. 526; Chissum r'. Dewes, to be the advantage or benefit which s Russ. 29; Mitchell v. Reed, 19 is acquired by an establislıment Hun. (N. 1.) 418; S. C., Ss X. beyond the mere value of the Y. 556. But when the business is capital stock, funds, or property carried on independently by the employed therein, in consequence firm, and the premises only are oi the general public patronage · leased, it certainly seeins the better and encouragement, which it re opinion to hold the goodwill an ceives from constant or habitual incident of the trade : Succession customers, on accouut of its local of Jean Journé, 21 La Au. 391. position or commou celebrity, or A good instance of the absurd rereputation for skill or affluence, or sults to which the strict application punctuality, or from other acci. of this rule wonid learl, is to be dental circumstances or occessities, found in Austin :. Boys, 7 DeG. or even from ancient partialities or & J. 636; S. C., 4 Jur. X. S. 721, prejudices." Yet this, too, is too where it was gravely ruled that bulky to be of practical use : and goodwill, being connected with what more does it amount to than place, was inapplicable to the busi.
ness of a solicitor, which has no locnlity make is the right to make locul existence, but is purely per and sell those goouls were to be sonal, depxneling on the trust and solel? confidence which persons may re (0). But whether slepenilent on pose in the integrity and ability of . personi, tracle, or place, the groul. ilie solicitor to concluct their legal will of a business is a valuable affairs. But why should they not property riglit: l'otter 7:. Comirs., repose the same confidence in his 10 Exch. 147; Senter :. Duis, 3S integrity and ability to select a
It is part of the Assets proper successor ? At any rate, the of a business : Wallingford i'. Burr, valiility or the sale of the business 17 Neb. 137 It is part of the assets or a professional man (except a of a decedent: Succession of Jean clergymall, who is too apt to have Journe, 21 La. An. 391, and must 110 good will to dispose on), is too lre accorinted for by his personal well settled to be called in ques. representative. If an executor contion ; and nothing but the good ducts the business as his own, he is will can pass by such a sile, unless chargeable witir the value of the wc are to assume that the vendec goorlwill; but that goodwill does Wils to innocent to know that he not include the right to use the pany's an exorbitant sum for the name of the leccilent : Ranell's
material subjects of the Est., & N. Y., Suppl. 652. It is contract.
equally a part of partnership Goolwill, then, docs not neces property : Hell 7'. Fillis, 33 Cal. 620. sarily depend exclusively
Cionxlwill may be the subject of a localily, it may also depend, to contract of sale: Carruthers : some extent, on the personal quali. McMurray, 75 Towa, 173, but only ties of the proprietor of the busi in connection with the business, of ness; and though this is a matter which it is an incident. It cannot very villicult to transfer, there be solel apart from that business, , seems to lic no doubt that it can be cillier by judicial sile, or otherwisc. clonic, figuratively at Icast, in suchia A mortgage or the "machinery, way that the vendlec can reap some type, presses, cass, furniture, Ta‘nefit from it; and that is all that paper, forms and touls of a new* illiy sale of goowl will amounts to. It paper company, together with the is equally clear that it may ilepend foolwill" of ils business, cannot upon the nature of the trade, in he forecloscil as lo llic good will, certain instances, as whicre certain after all the tangible property plents are owner by the firm, or covered by the mortgage has been it has the reputation of making a alienatcıl, worn out, or «lcstroyed, certain brand of goodle; and this is and the corporation lies become especially true in modern times, consolidated with anotlicr newswhen gooils are sent to such dis. paper corporation : Met. Natl. Bk. tances for sale. It makes no differ v. St. L. Dispatch Co., 36 Fal. Rep. cnce to the man who wants a Win
722. chester rifle, a Remington type A misrepresentation in regard to writer, or a Disston saw, whether the goodwill of a business is, when those articles are made in Massa the two are sold together, material chusetts, Pennsylvania, or l'ata And fraullulcnt : Crucks v. l'essler, gonia. What difference, then, could 39 Cal. 336. And when the con
tract for the sale of the stock and holding himself out as the sucgoodwill of a business is an entirety, cessor of the old finn; and to that the vendor cannot relieve himself extent only, it woull sem, the froin liability for fraud in respect law, in the absence of special cirto the goodwill hy proving the cumstances, will protect him. This stock to be worth thc sull amount is what seems to be meant by the paid : Herfort i'. Cramer, 7 Colo. expression in Bradford r'. I'cckham, 483.
9 R. I. 250, that goodwill is the If the riglit conveyed by a sale goodwill as thic venor usal it, and of the goodwill of a business be only coextensive with the business unlawfully laken away and de. carrieil on. Accorlingly, the sale stroyerl, the law will award a com of a trade or business, with the pensation, as in case of injury to goodwill, dnes not prevent the any other right; and this rule is vendor (rom selling up again in a applicable to the issuing of an similar trade or business, without attachment on the stock in trade in
an express covenant, or fraud in ipa casc growing out of the sale of ducing the vendice or others to bestock and good will, wherely cus. licve that he would not engage in tomers were kept away : Carey i'. the sanic again, or the like: Crut:Gunnison (Iowa), 17 N. W. Rep. well r. 1.ye, 17 Ves. 335 ; Shackle
i'. Baker, 14 Ves. 468 ; Churton v. Onc who has paid for the good. Douglas, i Johns. (Eng.) Ch. 174; will of a business cannot recover Davies r'. Horlysoni, 25 Beat, 177 ; the price paid on the ground that Bergamini i. Bastian, 35 La. An. the goodwill was not rendible : 60; Bassetti. Percival, 5 Allca Buckingham v. Waters, 14 Cal. 146. (Mass.), 345 ; Hoxic ::. Chaney, 143
As goodwill can be sold, it can Mass. 592; Rupp v. Over, 3 also be mortgaged, assigned, or Brewst. (Pa.) 133 ; Moreau taken in execution, in connection, Elwarıls, 2 Tenn., Cb. 347; Washof course, with the business to burn ?'. Dorsch (Wis.), 32 X. W. which it is inciilent : Met. Nat'l Rep. 551. But though the sale or Bk. t'. St. L. Dispatch Co., 36 leil. goodwill does not ukc away the Rep. 722; Putter v. Comrs., 10 vendor's right to engage in the Exch. 147 ; Walker 7'. Mottram, 19 same business agnin, it does preCh. D. 355 ; Hudson i'. Osborne, clule him from interfering actively 39 L. J. Ch. (X. S.) 79. But not if with the bencrits and advantages of dependent solely upon the personal the business sold ; and he therefore skill of the proprietor: Cooper ». has no right to hold himself out as Met. Board of Works, 25 Ch. D. the successor of the old firm, or as 472.
continuing its business : Hudson v. II. Sale of Goodivill.- As the Osborne, 39 L. J. Ch. (X. S.) 79: sale of the goolwill of a business Dwight v. Hamilton, 113 Mass. 175; practically amounts to giving up to Smith ?'. Gibbs, 44 X. H. 335; the vendee the right of the old firm Hall's App., 60 Pa. 458. Nor to deal as such with its old cus. (though there is some difference of tomers, and whatever new ones opinion ou this question), has he a may be attracted by its special right to directly solicit trade from advantages, the only tangible right the customers of the old firm; that the venulee acquires is that of although there would seem to be
no reason against his doing so hy general advertising, and he can certainly deal with them if they come unsolicitedl: Ginesi i'. Cooper, 14 Ch. 1). 596, as modified by Lego gutt'. Barrett, 15 Ch. D. 306; S. C., 43 L. T. X. S. 641; Labou. cherc *'. Dawson, 13 L. R. Eq. 322, as moulified by Walker v'. Mottram, 19 Ch. D. 355, anı l'earson v. Pear. Mon, 27 Ch. D. 45.
The 'vendor may, however, bind himself by express covenant or agreement not to engage in the same business again within a cortain area or time; and this restric. tion, if reasonable, will bind him : Howard 2'. Taylor, 90 Ala. 241; Morgan r. Pcrhamus, 36 Ohio St. 517; Thompson 7'. Andrews / Mich.), 41 X. W. Rep. 683. But he may engage in business outside of the limitation, or at the expiration of the time, and, it has been held, may solicit his old customers, though this hardly sccms consonant with sound reasoning: Hanna '. Andrews, so Iowa, 462.
Conveying, as it does, thic exclusive right of succession to the busi. ness of the old firm, the sale of the goolwill carries with it as incidents whatever is necessary to effectuate that right, as the trade-marks and trade-name of the former firm : Levy 2. Walker, 10 Ch. D. 447; 8. C. (C. A.). 48 ... J. Ch. (X. S.) 273: Caswell v. Hazard, 2 X, Y. Suppl. 783 : Drake v. Dalsworth, 4 kans. 159; contra, Lewis P'. Smith, 8 P'a. C. C. R. 327. This rulc is-especially applicable to the case of a newspaper.
"The goorl. will of a newspaper establishment often constitules its largest value. A majority of the subscribers are generally permanent. They become fuchcel to the paper on account of
Mentiineula, wlicthier political,
religious, or literary, anıl the ability and energy with which it is conducted. The habit of rcading a particular paper periolically scoms to stimulate a desire for its continu. ance. Subscribers, once obtained, are permanent customers, not only for the paper, but for advertising and job work :" Bron v. Moss, 70 X. Y. 165.
Thic goodwill which inerely pero tajns to the place of business, howcver (whatever that may be.), does not carry with it the right to use the firm name : Morgan 7'. Schuyler, 79 V. Y. 490. Anil no sale of good. will can carry with it the right to usc a firm name, which is the individual name of the vendor, with. out an express agreement to that effect : Churton v. Douglas, 1 John (Eng.) Ch. 174; Thynne 74. Slove, 45 Ch. D. 577; Howe v. Searing, 6 Bosw. (N. Y.) 354; Vonderbank *. Schmidt (la.), 1o So. Rep. 615. Yet in such a case the vendor, though at liberty to engage in busi. ncss again, as we have secn, may not use his own name again in such a way as to lend others to believe that his is a continuation of the old business: Churton I'. Douglas, supra.
There is 110 substantial difference between n sale of goodwill made by a trader himself, and a forced sale, on execution or by an assignee : and the rules previously laid down npply equally to the latter class of males : Hudson v. Osborne, 39 L. J. Ch. (N. S.) 79. with perhaps the singlc exception, which seems to be founded on a true equity, that a forced ule will not preclude the passive vendor from noliciting his old customers, if he again engage iu business : Walker 7. Mottram, 19 Ch. D. ASS.
It has lxon ruled that a sale of a
business, without any mention of joined from so doing, or be made goodwill, docs not carry the latter; to account for it: Willett v. Blanbut that can only be true when foril, 1 Hare, 253; Rammelsberg there are circumstances to slow .v. Mitchell, 29 Ohio St. 22. But he that the assets of the business only may retain it, upon payment of its were included in the salc: Hebert full value : Shepard v. Boggs, 9 v. Dupaty, 42 La. Au. 343 ; S. C.,
9 Neb. 257 7 So. Rep. 580; Costello i'. Eddy, Where the partnersbip is kept 12 N. Y. Suppl. 236; S. C. aff. sccrct, and the business conducted 128 X. Y. 650; 29 N. E. Rep. 146. in the name of the accounting The proper presuinption would partner, there is no goodwill to seem to be that the goodwill is in Account for (which goes to prove cluded in the sale, at least where the coutention that goodwill dethe assets are not worth thc price pends very little on place): Smith paid, or where lists of custoniers *. Wood, 12 X. Y. Suppl. 724. And are included : Boon v. Moss, 70 X. the same would seem to be true Y. 465. But this reduces it to a where the busincss expires by its mcre question of fact in every case. own limitation, or by agreement,
III. Goodwill of Partnership cach partner having the right to Firus.—The good will is an asset compete for the business of the old of the partnership: Featherston firm : Hall 7. Hall, 20 Beav. 139; haugh v. Fcuwick, 17 Ves. 298 ; Van Dyke . Jackson, I E. D. Hall r. Barrows, 10 Jur. (N. S.) Smith (X. Y.), 419: Lobeck '. Lee 55; Reynolds r'. Bullock, 47 L. J. (Xeb.), 55 X. W. Rep. 650 ; Mus Ch. (X. S.) 773; S. C., 26 W. R. selman's App., 62 Pa. 81; Rice v. 678; Bell v. Ellis, 33 Cal. 620; Angell, 73 Tex. 350; contra, BinWilliams v. Wilson, 4 Sandf. Ch. iuger v. Clark, 10 Abb. (N. Y.) Pr. 379; Brass & Iron Works Co. v. (X. S.) 264. This rule may be Payne (thc principal casc), (Ohio) changed by express agreement be 3 N. E. Rep. 88. In pursuance of tween the partners, either in the the old notion that partnership was articles of partnership, or other. skin to joint tenancy, it was for. wise : Turner z'. Major, 3 Giff. 443. merly held in England that it went And there are certain businesses, as to the surviving partner : Hammond the publication of a newspaper, in 8. Douglas, 3 Ver. 539; Crawshay which the good will is so important 0. Collins, 15 Ves. 218; Lewis v. a factor in the value of the partnerLangilon, 7 Sim. 421. But that ship property that the rule would relic of antiquity is now destroyed, not justly apply: Dayton r. Wilkes, and it is acknowledged cverywhere 17 How. (N. Y.) Pr. sto. that it does not survive, but forms As in other cases, the sale of the a part of the general assets of the interest of one partner in the good. partnership: Wedderburn v. Wed will of the business to another, does derburn, 22 Beav. 84; Smith v. not prevent the retiring partner Everett, a7 Beav. 446; Holden v. from setting up in the same busidicMakin, : Pars. Eq. Cas. 370; Dess; but it does con fer on the pur. Dougherty v. VanNostrand, 1 Hoff. chasing partner the exclusive right Ch. 68. And if one partner appro, to represent himself as the sucpriate it on the dissolution of the cessor of the old firm, and the refirm by death, he will either be en tiring partner may not lowfully do