51 N.Y.S. 573 | N.Y. App. Div. | 1898
The defendants claim that the right to solicit freights to Port au Prince was not a right that the plaintiff could sell, and consequently that it furnished no valid consideration for the contract in question. The contention proceeds upon a misconception of the nature and scope, of the contract. What the plaintiff thus sold to the defendants was the good will of his freighting business. He had been engaged in this business for some 15 years, and he was well known in it. He testified that the best shippers to Port au Prince had always given him the preference in their shipments to that port. The business was a valuable one, and its good will was essentially desirable. The defendants also contend that the contract was without consideration, because no material “plant” was involved in the transaction. But the good will of a business may be sold independently. A physician may sell the good will of his practice without selling his office furniture or his surgical instruments. So a lawyer may sell the good will of his clientage without selling his library. The same rule applies to the good will of a mercantile business; in fact, to good will generally.
The contract in question involved no unreasonable restraint of trade, within the rules laid down in Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419. The plaintiff’s" covenant here was necessary to effectuate the object of the sale of his good will. If such a covenant were illegal, it would seriously affect the sale of any man’s business, where the element of good will entered into the transaction. The covenant in question is generally an important incident of every such sale. The probability, or even the possibility, of subsequent competition on the seller’s part, would certainly prevent him from securing the full value of his property from any sensible or prudent purchaser. The covenant here is the ordinary one attached to such sales, and it is clearly valid. The rule laid down in the case cited has been frequently reaffirmed, and it is now the settled law of this state. Hodge v. Sloan, 107 N. Y. 244, 17 N. E. 335; Leslie v. Lorillard, 110 N. Y. 519, 18 N. E. 363; Tode v. Gross, 127 N. Y. 480, 28 N. E. 469; Underwood v. Smith (Com. Pl.) 19 N. Y. Supp. 380, affirmed 135 N. Y. 661, 32 N. E. 648; Francisco v. Smith, 143 N. Y. 488, 38 N. E. 980.
The remaining question is whether the contract is invalid under what is known as the federal “Anti Trust Act.” The defendants claim that it is invalidated by the first section of that act, which provides as follows: “Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among