establishment in New York. Both houses were dealing in "Thomson's Glove-fitting" corsets. Thomson sold out his interest in the New York house and afterward attempted to sell the corsets made by him in Europe, in the United States. He was enjoined from so doing, the court holding that, when he assigned his interest in the goodwill of the New York partnership, the goodwill carried with it all his right to use. the trademark "Thomson's Glove-fitting" in the United States.22

In a sale of a physician's practice, where the vendor, after three months, returned to the same city and opened an office fifteen rods away from, in the nearest house but one to, his former office, the Supreme Court of Massachusetts held his conduct to be a breach of the implied covenant "that the vendor will not himself do anything to disturb or injure the vendee in the enjoyment of that which he has purchased." 23

When an article of manufacture has had the manufacturer's name applied to it, and he sells his business and goodwill and "confers the authority to use his name," so applied, to his vendee, he will be enjoined from again engaging in a similar business under his own name.24

A covenant by the vendor not to re-engage in business may not specify the territory in which he is precluded from doing business. If from all the circumstances of the case it appears that it was the intention of the parties to limit that territory to a town, county or state, the contract will be so. construed, and the vendor will be enjoined from continuing

22-Batchellor V. Thomson, 86 Fed. Rep. 630.

23-Endicott, J., in Dwight v. Hamilton, 113 Mass. 175-177. Where the vendor re-engaged in the same (a mercantile) business in the same vicinity, a bill in equity brought by him to reform the contract of sale was dismissed on the ground that he had not done equity. Cassidy v. Metcalf, 1 Mo. App. 593-601. This decision was reversed by the Supreme Court of Missouri, but that court agreed

with the St. Louis Court of Appeals in holding that "the plaintiff's conduct was not characterized by that good faith with which a party should always approach a court of equity when asking its assistance." Cassidy v. Metcalf, 65 Mo. 519.

24-Frazer v. Frazer Lubricator Co., 121 I. 147; 13 N. E. Rep. 639; Ayer v. Hall, 3 Brewst. 509; Filkins v. Blackman, Fed. Case No. 4,786, 13 Blatch. 440; Probasco v. Bouyon, 1 Mo. App. 241.

or re-entering business in the territory so fixed.25 A single act or sale in the line of the business sold is not a breach of a covenant not to re-engage in a particular "business," as business is carried on by an aggregation of acts.26

A vendor of a goodwill may not do indirectly what he is forbidden, by the terms of his contract, from doing directly. So if he forms a corporation to carry on his business, and the other incorporators have knowledge of his contract, the corporation will be enjoined from conducting business with or for the vendor.27 And he is not at liberty to take stock in or to help to organize or manage a corporation formed to compete with his vendee,28 nor may he deliver goods within the prohibited territory, although maintaining his store and making the sales without that territory.29

If he re-engages in business under the pretense of acting as a broker or commission agent only, the same rule applies and he will be enjoined.30 And again, the rule applies where the defendant re-engages in the prohibited business as the salaried employe of a third person, and he will be enjoined.31 In a case where the vendor covenanted to make the goodwill as valuable as he could, Lord Eldon held that the vendee was not bound to take the actual profit made, but that he would have an action of covenant, if he can establish his title to more through the default of the vendor." 32

Where a limit of time is fixed in the covenant against reengaging in business, the vendor may re-engage in the busi

15.

25-Hubbard v. Miller, 27 Mich.

26-Parkhurst v. Brock, Vt., 47 Atl. Rep. 1068; citing Hoagland v. Segur, 38 N. J. Law, 237; Turner v. Evans, 2 El. & El. 512; In re Horton, 45 Law T. (N.S.) 541.

27-Beal v. Chase, 31 Mich. 490. 28-Kramer v. Old, 119 No. Car. 1; 56 Am. St. Rep. 650.

29-Love v. Stidham, 18 App. D. C. 306.

30-Richardson v. Peacock, 33 N. J. Eq. 597.

31-Finger v. Hahn, 42 N. J. Eq. 606; Emery v. Bradley, 88 Me. 357;

34 Atl. Rep. 167; Meyer v. Labau, 51 La. Ann. 1726; Boutelle v. Smith, 116 Mass. 111; Jefferson v. Markert, 112 Ga. 498; 37 S. E. Rep. 758. Opposed to these cases see Battershell v. Bauer, 91 Ill. App. 181.

32-Scott v. Mackintosh, 1 V. & B. 503. As a matter of course such a covenant will not be created by implication. Where the vendor conveyed the goodwill of a school, it was held that the sale did not bind him by implication to exert his efforts thereafter to secure the attendance of pupils. McCord v. Williams, 96 Pa. St. 78.

ness upon the expiration of the time. But where the covenant was made jointly with a conveyance of the vendor's goodwill, he was restrained after he re-engaged in business. from making personal solicitation of his former customers and using extracts from their books in relation to the business.33

The sale of a business and its goodwill do not, in the absence of an express agreement, entitle the purchaser to use the vendor's name, even where he covenants not to re-engage in the business for a term of years.3

34

§ 104. Partnership goodwill.-Disputes as to goodwill arise most frequently between partners. The various textwriters who have treated the law of partnership have dwelt at length upon the principles of the law of goodwill which are applicable in this connection, so that for the purpose of this book a brief glance at the leading principles will suffice.

As we have seen elsewhere, every man has the right to use his own name in business, so long as he does not use it in such a way as to establish an unfair competition.

The use of the name of a withdrawing partner, as part of the firm name, in such a way as to expose him to liability or to the possibility of being sued, will be enjoined at his suit.35 The better rule would seem to be that in the absence of express agreement the firm name will not pass to one who purchases the assets of a partnership.36

goodwill of the business, may be sold as a whole, either by the partners directly, or through a receiver under an order made by a court in a case to which they are parties; and that a purchaser thereof, under either method of sale, is entitled to continue the business as the successor of the firm, and make use of the firm name for that purpose. And further, that when the purchaser transfers the property so acquired by him to a corporation of which he is a member, organized to succeed to the business, it may

When one partner has been expelled from the partnership because of his violation of its articles, he will not, in the absence of contract binding him not to re-engage in the business, be enjoined from doing similar business in his own name, and soliciting patronage from customers of the old firm.3 37 A surviving partner who has the right to use the firm name may enjoin his deceased partner's executor from using the firm name for his own benefit.38

Upon the appointment of a receiver for the firm assets, either member of the firm will be enjoined from so using his own name as to mislead the public into the belief that he has acquired the goodwill, since such injunction is necessary to the preservation of the goodwill as part of the firm assets.39

A retiring partner who has sold the other the firm property, without making mention of the goodwill, will be granted an injunction against any use of the firm name by the continuing partner which would give the public reason to believe he was still a member of the firm, to the injury of his new business. 40

Upon the dissolution of a partnership the partner who retains the use of the old premises may lawfully advertise the premises as being "formerly occupied by" the old firm, and either partner may advertise himself as being "formerly of" or "late of" the firm, using words that convey only the facts and have no tendency to deceive or mislead the firm's customers or the public generally 41

Where the retiring partner permits the old firm name (of which his name is a part) to be used, and makes no publication of the fact of his retirement, he is estopped from denying the copartnership, as against a creditor of the con

carry on the business in the same manner under a corporate name, including the name which has been used by the firm." Williams, J., in Snyder Mfg. Co. v. Snyder, 54 Ohio St. 86-96; 43 N. E. Rep. 325, citing Brass & Iron Works v. Payne, 50 Ohio St. 115.

37-Dawson v. Beeson, L. R. 24 Ch. D. 504.

38-Lewis v. Langdon, 7 Sim. 422. 39-Bininger v. Clark, 60 Barb. 113. Where a retiring partner stipulated that the continuing partner might continue the use of his

tinuing partner, who has extended credit in the belief that he is still a member of the firm.4

42

Upon administration of a partnership estate, the goodwill should be included in the appraisement of the partnership assets, and if the surviving partner appropriates it to his own use by continuing the partnership business, he may be compelled to account for its value to the estate of the deceased partner.

43

Where a partner came into a partnership for a fixed period, agreeing, "to carry on business with the defendants for one year, and then to leave it in their hands," he was held to have acquired thereby no interest in the goodwill of the business.**

Upon the retirement of a partner, if he permits the other partners to retain the old premises and continue the use of the firm name, the goodwill remains with the continuing partners."

45

A retiring partner who re-engages in business will be enenjoined from using the expression "our firm" "our new store," and like matter holding out his new concern as continuing the business of the old firm.46

After a receiver's sale of a partnership business and assets, "members of the firm can not be prevented from using such words subsequently in their own business, provided the use is not such as to induce persons to buy articles of them as and for those manufactured by the purchasers, and also that they did not represent the business conducted by them as the same as that formerly conducted." 46a

Under particular facts, an inventor of a pest-killing preparation who had been associated with a company making that preparation and using his facsimile signature on the package enjoined persons who had purchased the company's assets from a receiver from using his signature for any purpose without his consent.46b

42-Backus v. Taylor, 84 Ind. 503; Richards v. Hunt, 65 Ga. 342. 43-Rammelsberg v. Mitchell, 29 Ohio St. 22.

44-Van Dyke v. Jackson, 1 E. D. Smith (N.Y.), 419: Duden v. Maloy, 63 Fed. Rep. 183; 11 C. C. A. 119. In the latter case the partnership articles provided that the incoming partner's interest should be ascertained annually, and further provided for the sale of his interest to his partner on dissolution at the price ascertained in determining his share. The court held that this disposed of his property in the goodwill.

45-Menendez v. Holt, 128 U. S. 514; 32 L. Ed. 526.

46-Fite v. Dorman (Tenn.), 57 S. W. Rep. 129.

46a-King, J., in Sawilowsky v. Brown, 288 Fed. Rep. 533, 537, C. C. A. 5. Citing Fish Bros. Wagon Co. v. Fish, 82 Wis. 546, 52 N. W. Rep. 595, 16 L. R. A. 453; Fish Bros. Wagon Co. v. Fish Bros. Mfg. Co., 87 Fed. Rep. 203, affirmed, 95 Fed. Rep. 457, 37 C. C. A. 146.

46b-Mickelson v. Kill-Em-Quick Co. Ltd., 46 D. L. R. 622.