204 N.W. 672 | N.D. | 1925
This is an appeal from a judgment awarding to the plaintiff an injunction restraining the defendant from carrying on a certain implement business within ten years after January 15, 1918 at Ray, North Dakota, or in the territory which had been served by him while engaged in the implement business at Ray prior to January 15, 1918. The case is here for trial de novo. The defendant W.W. Wirtz, for some years prior to November, 1917, had been engaged in the implement and machinery business at Ray. The business was transacted under the name of Wirtz Brothers, but it was under the direct management of the defendant. He testified, however, that two brothers had an equal interest in the business with him. In November, 1917, W.W. Wirtz, the defendant, entered into a contract as the party of the first part with W.J. Hanson, the plaintiff, as the party of the second part. Under the terms of this contract, the latter, for a stated consideration of $14,500.00, purchased certain real property upon which the business in question was located, together with the stock and the good will of the business. The real estate stood in the name of the defendant. The contract *606 contains the following stipulation: "It is mutually understood and agreed between the parties hereto that the sale of real property and merchandise as aforesaid by party of the first part carries with it the good will of the implement business as carried on by the firm of Wirtz Brothers, a partnership, at Ray, North Dakota, and the said party of the first part covenants and agrees with the party of the second part that neither the said party of the first part nor any member of the firm of Wirtz Brothers will engage in the implement business at Ray, North Dakota, nor in the territory that has been served by said implement business at Ray, North Dakota, for a period of ten years from the date of the final settlement as aforesaid." This contract was signed by W.W. Wirtz, the defendant. Within the period of ten years he became interested as an owner in a similar business in Ray.
The appellant raises but a single question on the appeal. It is said that under § 6404, Comp. Laws, 1913 a partner has no authority to dispose of the good will of a business, and it is argued that the contract in question is void as having been entered into by one having no authority. The case of Kelly v. Pierce,
It was suggested on argument that the judgment would amply protect the plaintiff if it restrained the defendant from carrying on the *607 business in Ray and in the tributary country within the county of Williams. The plaintiff's attorney expressed assent to this modification. The judgment, therefore, will be so modified as to limits, and as so modified, affirmed.
CHRISTIANSON, Ch. J., and NUESSLE, BURKE, and JOHNSON, JJ., concur.