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tract for the sale of the stock and goodwill of a business is an entirety. the vendor cannot relieve himself from liability for fraud in respect to the goodwill by proving the stock to be worth the full amount paid: Herfort v. Cramer, 7 Colo. 483.

If the right conveyed by a sale of the goodwill of a business be unlawfully taken away and destroyed, the law will award a compensation, as in case of injury to any other right; and this rule is applicable to the issuing of an attachment on the stock in trade in a case growing out of the sale of stock and goodwill, whereby cus tomers were kept away: Carey ". Gunnison (Iowa), 17 N. W. Rep. 881.

One who has paid for the goodwill of a business cannot recover the price paid on the ground that the goodwill was not vendible: Buckingham v. Waters, 14 Cal. 146.

As goodwill can be sold, it can also be mortgaged, assigned, or taken in execution, in connection, of course, with the business to which it is incident: Met. Nat'l Bk. v. St. L. Dispatch Co., 36 Fed. Rep. 722; Potter v. Comrs., to Exch. 147; Walker 7. Mottram, 19 Ch. D. 355; Hudson r. Osborne, 39 L. J. Ch. (N. S.) 79. But not if dependent solely upon the personal skill of the proprietor: Cooper v. Met. Board of Works, 25 Ch. D. 472.

II. Sale of Goodwill.-As the sale of the goodwill of a business practically amounts to giving up to the vendee the right of the old firm to deal as such with its old customers, and whatever new ones may be attracted by its special advantages, the only tangible right that the vendee acquires is that of

holding himself out as the suc cessor of the old firm; and to that extent only, it would seem, the law, in the absence of special circumstances, will protect him. This is what seems to be meant by the expression in Bradford v. l'eckham, 9 R. I. 250, that goodwill is the goodwill as the vendor used it, and only coextensive with the business carried on. Accordingly, the sale of a trade or business, with the goodwill, does not prevent the vendor from setting up again in a similar trade or business, without an express covenant, or fraud in inducing the vendce or others to believe that he would not engage in the same again, or the like: Crutwell v. Lye, 17 Ves. 335; Shackle 2. Baker, 14 Ves. 468; Churton v. Douglas, Johns. (Eng.) Ch. 174; Davies . Hodgson, 25 Beav. 177; Bergamini. Bastian, 35 La. An. 60; Bassett . Percival, 5 Allen (Mass.), 345; Hoxie ?. Chaney, 143 Mass. 592; Rupp v. Over, 3 Brewst. (Pa.) 133; Moreau ". Edwards, 2 Tenn., Ch. 347; Washburn. Dorsch (Wis.), 32 N. W. Rep. 551. But though the sale of goodwill does not take away the vendor's right to engage in the same business again, it does preclude him from interfering actively with the benefits and advantages of the business sold; and he therefore has no right to hold himself out as the successor of the old firm, or as continuing its business: Hudson v. Osborne, 39 L. J. Ch. (N. S.) 79; Dwight v. Hamilton, 113 Mass. 175; Smith. Gibbs, 44 N. H. 335; Hall's App., 60 Pa. 458. Nor (though there is some difference of opinion on this question), has he a right to directly solicit trade from the customers of the old firm; although there would seem to be

no reason against his doing so by general advertising, and he can certainly deal with them if they come unsolicited: Ginesi . Cooper, 14 Ch. D. 596, as modified by Leggott. Barrett, 15 Ch. D. 306; S. C., 43 L. T. N. S. 641; Labou chere v. Dawson, 13 L. R. Eq. 322, as modified by Walker v. Mottram, 19 Ch. D. 355, and Pearson v. Pear8011, 27 Ch. D. 145.

The vendor may, however, bind himself by express covenant or agreement not to engage in the same business again within a certain area or time; and this restriction, if reasonable, will bind him: Howard . Taylor, 90 Ala. 241; Morgan . Perhamus, 36 Ohio St. 517; Thompson 7'. Andrews (Mich.), 41 N. 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 seems consonant with sound reasoning: Hanna r'. Andrews, 50 Iowa, 462.

Conveying, as it does, the exclusive right of succession to the business of the old firm, the sale of the goodwill carries with it as incidents whatever is necessary to effectuate that right, as the trade-marks and trade-name of the former firm: Levy. Walker, 10 Ch. D. 447; S. C. (C. A.), 48 L. J. Ch. (N. S.) 273; Caswell v. Hazard, 2 N. Y. Suppl. 783; Drake v. Dodsworth, 4 Kans. 159; contra, Lewis v. Smith, 8 Pa. C. C. R. 327. This rule is especially applicable to the case of a newspaper. The goodwill of a newspaper establishment often constitutes its largest value. A majority of the subscribers are generally permanent. They become ttached to the paper on account of

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sentiments, whether political,

religious, or literary, and the ability and energy with which it is conducted. The habit of reading a particular paper periodically seems to stimulate a desire for its continuance. Subscribers, once obtained, are permanent customers, not only for the paper, but for advertising and job work:" Boon v. Moss, 70 N. Y. 465.

The goodwill which merely per tains to the place of business, however (whatever that may be.), does not carry with it the right to use the firm name: Morgan . Schuyler, 79 N. Y. 490. And no sale of goodwill can carry with it the right to use a firm name, which is the individual name of the vendor, without an express agreement to that effect: Churton v. Douglas, 1 Johns (Eng.) Ch. 174; Thynne v. Shove, 45 Ch. D. 577; Howe v. Searing, 6 Bosw. (N. Y.) 354; Vonderbaak 7. Schmidt (La.), 10 So. Rep. 615. Yet in such a case the vendor, though at liberty to engage in business again, as we have seen, may not use his own name again in such a way as to lead others to believe that his is a continuation of the old business: Churton v. Douglas, supra.

There is no substantial difference between a sale of goodwill made by a trader himself, and a forced sale, on execution or by an assignee ; and the rules previously laid down apply equally to the latter class of sales: Hudson v. Osborne, 39 L. J. Ch. (N. S.) 79, with perhaps the single exception, which seems to be founded on a true equity, that a forced sale will not preclude the passive vendor from soliciting his old customers, if he again engage in business: Walker . Mottram, 19 Ch. D. 355.

It has been ruled that a sale of a

business, without any mention of goodwill, does not carry the latter; but that can only be true when there are circumstances to show that the assets of the business only were included in the sale: Hebert v. Dupaty, 42 La. Au. 343; S. C., 7 So. Rep. 580; Costello . Eddy, 12 N. Y. Suppl. 236; S. C. aff. 128 N. Y. 650; 29 N. E. Rep. 146. The proper presumption would seem to be that the goodwill is included in the sale, at least where the assets are not worth the price paid, or where lists of customers are included: Boon v. Moss, 70 N. Y. 465. But this reduces it to a mere question of fact in every case.

III. Goodwill of Partnership Firms.-The goodwill is an asset of the partnership: Featherstonhaugh v. Fenwick, 17 Ves. 298; Hall. Barrows, 10 Jur. (N. S.) 55: Reynolds . Bullock, 47 L. J. Ch. (N. S.) 773; S. C.. 26 W. R. 678; Bell v. Ellis, 33 Cal. 620; Williams v. Wilson, 4 Sandf. Ch. 379: Brass & Iron Works Co. v. Payne (the principal case), (Ohio) 33 N. E. Rep. 88. In pursuance of the old notion that partnership was akin to joint tenancy, it was formerly held in England that it went to the surviving partner : Hammond v. Douglas, 5 Ves 539; Crawshay v. Collins, 15 Ves. 218; Lewis v. Langdon, 7 Sim. 421. But that relic of antiquity is now destroyed, and it is acknowledged everywhere that it does not survive, but forms a part of the general assets of the partnership: Wedderburn . Wedderburn, 22 Beav. 84; Smith v. Everett, 27 Beav. 446; Holden v. McMakin, Pars. Eq. Cas. 270; Dougherty v. VanNostrand, 1 Hoff. Ch. 68. And if one partner appropriate it on the dissolution of the firm by death, he will either be en

joined from so doing, or be made to account for it: Willett v. Blanford, Hare, 253; Rammelsberg . v. Mitchell, 29 Ohio St. 22. But he

may retain it, upon payment of its full value: Shepard v. Boggs, 9 9 Neb. 257.

Where the partnership is kept secret, and the business conducted in the name of the accounting partner, there is no goodwill to account for (which goes to prove the contention that goodwill depends very little on place): Smith 2. Wood, 12 N. Y. Suppl. 724. And the same would seem to be true where the business expires by its own limitation, or by agreement, each partner having the right to compete for the business of the old firm: Hall v. Hall, 20 Beav. 139; Van Dyke v. Jackson, E. D. Smith (N. Y.), 419; Lobeck v. Lee (Neb.), 55 N. W. Rep. 650; Musselman's App., 62 Pa. 81; Rice v. Angell, 73 Tex. 350; contra, Bininger v. Clark, 10 Abb. (N. Y.) Pr. (N. S.) 264. This rule may be changed by express agreement between the partners, either in the articles of partnership, or otherwise: Turner . Major, 3 Giff. 442. And there are certain businesses, as the publication of a newspaper, in which the goodwill is so important a factor in the value of the partnership property that the rule would not justly apply: Dayton v. Wilkes, 17 How. (N. Y.) Pr. 510.

As in other cases, the sale of the interest of one partner in the goodwill of the business to another, does not prevent the retiring partner from setting up in the same business; but it does confer on the purchasing partner the exclusive right to represent himself as the successor of the old firm, and the retiring partner may not lawfully do

any act tending to mislead others into the belief that he is such successor, or that the purchasing partner is not: Smith v. Everett, 27 Beav. 446; Leggott v. Barrett, 15 Ch. D. 306; S. C., 43 L. T. (N. S.) 641; Cottrell v. Babcock Printing Press Mfg. Co., 54 Conn. 122; White v. Jones, 1 Abb. (N. Y.) Pr. (N. S.) 328; Moody v. Thomas, Disney (Ohio), 294; Williams v. Farrand (Mich.), 50 N. W. Rep. 446: Brass & Iron Works Co. v. Payne (Ohio) (the principal case), 33 N. E. Rep. 88. The same rule holds good as to a surviving partner: Davies v. Hodgson, 25 Beav. 177; Johnson v. Holliday, 2 DeG. J. & S. 446. But the retiring partner may bind himself not to engage in business, or interfere with the other's trade: Dethlefs v. Tamisen, 7 Daly (N. Y.), 354; Hollis v. Shafer (Kans.), 17 Pac. Rep. 86.

Partners who have sold out their interest in the goodwill of a business to a co-partner will be restrained from carrying on a rival establishment under a name SO similar to that of the first as to mislead and draw off business: Myers 7. Kalamazoo Buggy Co., 54 Mich. 215. So, when two partners had sold to a third their share of the property of the partnership, and their interest in the goodwill of the business, and had agreed in writing not to do anything which should in any wise impair or injure the said interest in the goodwill; but there after engaged in the same business and competed with the vendec, but did not specially solicit trade, it was held that an injunction would issue to restrain them from soliciting, doing, or obtaining business from any of the customers of the old firm, and from doing anything

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to impair or injure the said interest in the goodwill: Angier v. Webber, 14 Allen (Mass.), 211. But this is not now law to the extent indicated; and upon the present state of authority they could only be restrained from soliciting the old customers, or otherwise actively impairing the value of the goodwill.

On a bill filed by one of the part. ners to wind up the partnership, a receiver will be appointed to carry on the business, if necessary to preserve the goodwill: Marten v. Van Schaick, 4 Paige (N. Y.), 479.

As a rule, the sale by one partner to another of all the partnership property, with the understanding that the purchasing partner is to succeed to the business of the old firm, carries with it the goodwill as an incident: Brass & Iron Works Co. v. Payne (Ohio) (the principal case), 33 N. F. Rep. 88. The firm name, being part of the goodwill, passes by a sale thereof, and becomes the exclusive property of the purchasing partner: Burckhardt . Burckhardt, 42 Ohio St. 474; Brass & Iron Works Co. ?. Payne (Ohio), supra.

These rules do not always hold good, however, and are largely dependent on circumstances: Reeves 2. Denicke, 12 Abb. (N. Y.), Pr. (N. S.) 92; Howe . Scaring, 6 Bosw. (N. Y.) 354; S. C., to Abb. (N. Y.) Pr. 264.

One partner can bind the other by a sale of the goodwill, as of any other item of partnership property: Moreau v. Edwards, 2 Tenn. Ch. 347.

IV. Its Value.—The value of the goodwill of a business, of course, cannot be shown with certainty: Burckhardt v. Burckhardt, 42 Ohio, St. 474- It is dependent upon the

business it represents: Byrne . Stewart, 124 Pa. 450. And is to be calculated by estimating every advantage secured by succeeding to the business, without reference to the exclusion of any person from

engaging in the same business:
Rammelsberg v. Mitchell, 29 Ohio,
St. 22. In one case, it was assessed
at one year's average net profits:
Mellersh v. Keen, 28 Beav. 453-
R. D. S.

DEPARTMENT OF COMMERCIAL LAW.

CHAS. C. BINNEY,

EDITOR-IN-CHIEF,

FRANK P. PRICHARD, Esq.,

Assisted by

CHAS. C. TOWNSEND, H. GORDON MCCOUCH,
FRANCIS H. BOHLEN,
OLIVER BOYCE JUDSON.

WILMOTH V. HENSEL. SUPREME COURT OF PENNSYLVANIA,

Reward-How Earned–Validity of Contract—Who liable.

1. A reward offered for the prosecution and conviction of persons who violate any of the statutes against bribery or corruption at elections, is earned by procuring the prosecution, followed by a plea of not guilty, of a tax collector who issued false tax receipts. The fact that sentence was suspended is not material, the word conviction being construed in its popular and not its technical sense.

2. It is not against public policy to offer a reward for the conviction of offenses thereafter committed against clection laws, nor is such a contract without consideration, if acted on in good faith. The bona fides of such a transaction, where the evidence is conflicting as to whether or not the plaintiff induced the commission of the crime in order to procure the reward, is for the jury.

3. When defendant, as chairman of a state political committee, signed and published an offer of reward for the conviction of persons who should violate the election laws, and subsequently, at a public meeting, declared that he had $1000 to pay for such a conviction, the question as to his personal liability on the offer is for the jury.

REWARDS.

1. How the Contract is Formed.A reward, which is a promise, made usually by public advertisement, either to a particular person or persons, or to any or all persons, to pay a certain sum of money to one who will perform certain services

enumerated in the offer, belongs to the class of conditional contracts, and no liability arises upon it until it is made complete by acceptance and performance of its conditions.

No special form is necessary to the validity of such a contract.

'Reported in 151 Pa. St. 200; 31 W. N. C. 237; 25 Atl. Rep. 86.

In

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