7 Daly 354 | New York Court of Common Pleas | 1878
The plaintiff simply appeals from the judgment, not having made a motion for a new trial in the court below ; and we are called upon to examine the exceptions he took upon the trial.
It is well settled that a retiring partner, byr selling the good-will of the business to his associate, does not deprive himself ,of the right to engage in or prosecute a similar business in the vicinity of the place of business of the dissolved firm. (White v. Jones, 1 Abb. Pr. N. S. 328.) If the retiring partner, after selling the good-will, represents the new business which he establishes to be the same that the dissolved firm carried on, or if he leads customers to believe that he is carrying on business as the successor to the old firm, or if he induced his former partners to buy his interest in the good-will by falsely stating to them that he did not intend to engage in a similar business in competition with,
The answer of the defendant contains allegations which, if supported by proof, would probably entitle him to a,n injunction. Equitable relief the defendant did not seek. Besought in a court of law to defeat the action on the note given for the good-will; and the question presented is,, whether the exceptions taken at the trial are such that we must set aside the verdict of the jury, a verdict which seems to me to measure out substantial justice to both parties.
The original partnership articles between Dethlefs and Tamsen provide, that if either of the partners should retire from the firm, the partner keeping and carrying on the business should pay to the other for the good-will a sum equal to one-third of the net profits of the first year, and that the retiring partner should contract not to conduct any business in •opposition to, or in competition with, that continued by the partner purchasing the good-will. When Dethlefs and Tamsen came to dissolve, which they did after having been partners for nearly four years, they departed from the method of valuing the good-will provided for by their partnership articles, and agreed that the price to be paid to the retiring partner for his interest in the good-will should be twentjr-five hundred dollars. That sum Tamsen undertook to pay Dethlefs for his (Dethlefs’) interest in the good-will, and it forms part of the three thousand dollars for which Tamsen executed to Dethlefs the note which is- in suit. The evidence in the case is not before us, so that we have no means of ascertaining whether Tamsen substantiated upon the trial the allegations of his answer; and we shall not, therefore, venture an opinion as to the aspect this case would wear if Tamsen had proved that Dethlefs had deliberately defrauded him, aqd deceived the customers of the old firm. It appears, however, that Dethlefs, when he conveyed his interest in the business, covenanted with Tamsen that he would “not injure the sale ” he had made “ by any actions whatsoever.” Although the language of this covenant is not at all artificial, and
The true test is, whether the restraint is such as only to afford a fair protection to the interests of the party in whose favor it is given, and not so large as to interfere with the interests of the public. No precise boundary can be laid ■down within which the restraint would be reasonable, and beyond which excessive. (Horner v. Graves, 7 Bing. 743.) Every case, as it arises, must be determined unon its own cir
We see no error in the admission of the evidence of Dr. Petzold as to the resemblance in outward appearance between the new store of Dethlefs and the old store of Tamsen. If the covenant of Dethlefs has the meaning I have ascribed to it, the evidence tended directly to show a breach of it.
Nor was. there any error in permitting Tamsen to show the falling off in the receipts of his business subsequently to the opening by Dethlefs of his opposition store. That evidence bore directly on the question of damages. Nothing could better show the injury accomplished by the opening of the competing store than the diminution in Tamsen’s receipts. This evidence was not rendered irrelevant or immaterial, because it was allowable to the plaintiff to argue that the decrease of the receipts was possibly attributable to the dulness of the times, or to some other cause than Dethlefs’ competition. The jury were instructed that they could not find in favor of the defendant’s defense unless they were satisfied that the opposition store was the sole cause of the decline in the defendant’s business. That instruction was certainly as favorable to the plaintiff as he”had a right to claim.
The only remaining exception that I think it necessary to notice, was taken in various forms; but its real point is* that the court erred in refusing to hold that the defendant had offered no legal evidence as to the amounts of damage sustained by him. The counsel for the plaintiff contends that the defendant was bound to name in his answer the customers whose trade he had lost, and to prove his allegations as made. If such was the duty of the defendant, he has failed to make out his defense. But no such burden ever was, or ever should be, imposed upon a party asking general damages for the breach of a covenant. There is a well settled distinction between cases where general damages are recoverable and cases where special damage must be shown, in order to give a right of action at all, or to
I think there Avas no error at the trial, and that the judgment should he affirmed with costs.
Joseph F. Daly and Larremore, JJ., concurred.
Judgment affirmed with costs.