12 N.Y.S. 236 | N.Y. Sup. Ct. | 1890
This is an appeal from a judgment for the defendant, entered upon a nonsuit at the circuit. The action was brought to recover damages for an alleged breach of an alleged contract not to carry on the business
The learned counsel for the appellant undertakes to separate what he claims to be the verbal agreement of the defendant not again to engage in this business in Saratoga from the balance of the contract, and to treat it as collateral to the sale of the leases, business, and teams and fixtures; but I do not see how this contention can be upheld. Adopting the plaintiff’s theory of the contract, it was to sell the business, the stock, and the good-will of the defendant, and, as to him, the exclusive right of engagement and monopoly of the business of carrying on a bakery in Saratoga; in consideration of all of which the plaintiff agreed to pay $2,000. Now, suppose that in drawing the contract all other articles, rights, and privileges, intended to be transferred by the parties, had been specified in the contract, except the horses and harness, could the plaintiff, in an action at law for damages for a failure to deliver the horses and harness, prove, notwithstanding the writing, that they were embraced in the sale, and paid for by the $2,000? We. think not. Doubtless such a mutual mistake in the written contract might be corrected, and the contract reformed in equity, but, in an action.at law, the terms of the writing would prevail, and the legal rule would apply, that all the agreement of the parties, as to what the defendant sold, and what was purchased by the plaintiff, was merged in the writing, and that would control. That rule is quite elementary, and ordinarily citations of authorities would he unnecessary; but in this case, where exceptions to the rule might, if the distinctions were not observed, override the rule itself, a brief reference to authorities, for the purpose of noting the distinctions, is allowable. In Bayard v. Malcolm, 1 Johns. 467, Kent, C. J., incidentally lays down the rule as fol
In the case at bar, the contract was signed by both parties, and the consideration for the $2,000 was expressed in the writing, and the instrument purports, upon its face, to be a complete agreement. Potter v. Hopkins, 25 Wend. 419. In Chapin v. Dobson, 78 N. Y. 74, the writing, signed by one party, and approved by the other, was that the machinery should be delivered “on terms stated.” And the court put the decision on the ground that the original contract was verbal and entire, and part only reduced to writing, and cited on that head 25 Wend, and 3 Hill, supra. In Dodge v. Zimmer, 110 N. Y. 43, 17 N. E. Rep. 399, paroi evidence was allowed to explain an ambiguity appearing on the face of the paper or agreement, and matters not claimed to be embraced in it, or to constitute a part of it, was allowed, so that we fail to see how that ease is applicable in principle to the one at bar. The distinction seems to be that, where the writing purports upon its face to contain the entire agreement of the parties, it must have that effect; but when, upon its face, it purports to rest partly in writing and partly in verbal agreement or negotiation, it may be proved and enforced as a whole, or if it appears that a paroi contract is independent of, and collateral to, a written agreement, it may be sued upon as an independent and distinct cause of action', leaving the writing to stand and to be enforced according to its terms. Chapin v. Dobson, supra. But that rule is not applicable to this case.
But the plaintiff insists that, by the bill of sale, the defendant conveyed to
In Boon v. Moss, 70 N. Y. 473, Church, C. J., adopts the definition of “good-will,” as given by Judge Story, as follows: “This good-will may be properly enough described to be the advantage or benefit which is acquired by an establishment beyond the mere value of the capital stock, funds, or property employed there, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position or common celebrity or reputation for skill or influence or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.” And the court in this case held that the bill of sale, in these words: “The Watertown Reunion, machinery, type of air descriptions, newspaper and jobbing materials, tools, implements, etc., appertaining to said printing business,”—constituted a sale of the good-will of the establishment as one of the elements of value passing by the sale, although not specifically mentioned; but the question whether the vendor’s engaging in a similar business at some other place was a breach of the covenants in the bill of sale did not arise, and was not discussed, in that case, and the case of a newspaper with its unearned subscription list presents the strongest reason for a sale, without any mention in the bill of transfer carrying with it the good-will of the concern. I have been unable to find any other cases that hold that a sale of the property, and necessarily the business carried on, in, or upon it, without any express agreement, is a sale of “goodwill;” and, while there are strong reasons for holding that the sale of a newspaper, with its press, type, and fixtures, and its subscription list, is a sale of the “good-will” of the business, yet, if it operates as a restraint of trade, it should not be extended to other business not similarly situated, without an express stipulation in the sale; and to this effect, we think, is the weight of English and American authority. But even a sale of “good-will” does not necessarily, within the authorities, exclude the vendor from engaging in similar business in the same village on another or different stand.
In Churton v. Douglas, 1 Johns. Eng. Ch. 176, before Vice-Chancellor Wood, by a written instrument the defendant sold to the plaintiff “all his
In Cruttwell v. Lye, 17 Ves. 346, it was held that, where a party sells the “good-will” of the business, he may engage in the same kind of business, but he must not represent that he still owns the business which he has sold. In such case the court held that the defendant has not contracted against setting up business in opposition to the business sold by him to the plaintiff, but he must set it up fairly and distinctly, as a separate business.
In Washburn v. Dosch, 68 Wis. 436, 32 N. W. Rep. 551, it was held that the sale of the “good-will” of a business will not of itself alone be sufficient to preclude the seller from engaging in a separate and independent business of the same kind, in the same village or city. There should be an agreement to that effect, based upon a good and valuable consideration, and not contrary to law or public policy.
If. in the case at bar, the contract had in'terms prohibited the defendant from engaging in this business in Saratoga Springs, it would doubtless have been a valid contract, not against public policy for being in restraint of trade, but it cannot be enforced as a contract in restraint of trade without some provision in it restrictive of the defendant’s right to carry on a bakery; and it contains no such provision. Nor do the covenants of warranty reach this case. They can only be construed as covenants relating to the property sold, and the right of the plaintiff to the free, unobstructed enjoyment of the same. Any lawful interference with either of the bakeries or the stock, teams, wagons, etc., would be a violation of the covenants of warranty; but we think it cannot fairly be said that these covenants went to the extent of guarantying to the plaintiff the exclusive business of carrying on a bakery in the village of Saratoga Springs. We think on the whole case the rulings of the learned judge were correct. Judgment affirmed, with costs. All concur.