106 Minn. 129 | Minn. | 1908
This action was brought to restrain and enjoin defendants from engaging in or conducting a retail furniture and undertaking business in the city of Minneapolis, and for other relief. Plaintiffs moved the court for the issuance of a temporary injunction pending the suit, which, after hearing, was granted as to defendant Sundseth, but denied as to defendant Sundseth Furniture & Undertaking Company. Defendant Sundseth appealed.
The facts are as follows: On July 5, 1905, defendant Sundseth was, and for some time prior thereto had been, engaged in conducting the business of a retail dealer in furniture and undertaking in the city of Minneapolis. He had established a large and profitable trade, and was successfully carrying it on. On the day stated, after some negotiations, he sold out his business to Haugen & Meier, a copartnership composed of Thomas A. Plaugen and John Meier, for the consideration in round numbers of $7,000 in money and the execution by Sundseth of the following contract, by which he transferred to his grantees the good will to the business and agreed not to enter into the same in :said city for the term of five years thereafter:
*131 “This agreement, made this 10th day of July, 1905, by and between Thomas A. Haugen and John Meier, copartners as Haugen and Meier, parties of the first part, and Andrew Sundseth, party of the second part.
“Witnesseth: Whereas the said parties of the first part have taken and purchased from the party of the second part the business and store of said second party in the city of Minneapolis, which said business includes the business of retailing furniture, house furnishings, stoves and ranges; and also general undertaking and embalming business; and also including the good will of said second party, in the said city of Minneapolis, in connection with said business; and whereas said first parties wish to protect the interest of said copartnership, in the conduct of said business, now
“Therefore, as a part of the consideration of said purchase and sale, the said second party hereby agrees to and with the first parties that he will not engage in the business of selling or retailing furniture, or house furnishings, stoves and ranges; or in the business of undertaking or embalming either directly or indirectly, in the city of Minneapolis for a period of five (5) years from the date of this contract; that he will not own or control any stock in any corporation engaged in said business, and will not become interested in any copartnership engaged in said business during a period of said five (5) years, and will not become an employee of any copartnership, corporation or individual engaged in said business at any time during said period of five (5) years; or will not give or lend his influence, either directly or indirectly to the support or promotion of said business.
“The term ‘said business’ shall include the business or businesses herein above described, and all lines of business usually carried on in connection therewith.”
[Signed] “A. Sundseth.”
The transaction was completed on July 10, 1905, and Haugen & Meier then took possession of the business, and thereafter managed and conducted it until some time in March, 1906, when the firm was dissolved, and the business, including all rights under the contract above set out, sold to the plaintiffs herein, a copartnership composed of Tollef K. Haugen and John Meier, under the firm name of Haugen & Meier Company. Thereafter the defendant Sundseth Furniture &
Several questions are discussed in the briefs of counsel, only one of which requires special mention. By the action of the court in granting a temporary injunction against defendant Sundseth, it must tíe taken that the issues of fact presented by the pleadings and affidavits were resolved in favor of plaintiffs. That conclusion cannot be disturbed on this appeal; the showing made by defendants not being clearly against'the view taken by the trial court. O’Brien v. Oswald, 45 Minn. 59, 47 N. W. 316; Hamilton v. Wood, 55 Minn. 482, 57 N. W. 208; Gorton v. Town of Forest City, 67 Minn. 36, 69 N. W. 478; First Nat. Bank of Mankato v. Buchan, 76 Minn. 54, 78 N. W. 878. So we come directly to the principal question involved, viz., whether defendant’s contract and agreement not to enter again into the furniture business for a period of five years was assignable and passed by the dissolution of the firm of Haugen & Meier and the sale and transfer to the new firm. The only change in the copartnership was the retirement of Thomas A. Haugen; he having sold his interest to Tollef K.
It is insisted by defendant Sundseth that the rights of Haugen & Meier in and to the good will of this business did not pass to the new copartnership, for the reason that it was personal to the old firm so long as they should continue to conduct the business, and was not assignable by them to other persons. We are unable to concur in this view of the question. The good will of a business is the favor won
The fact that the contract in question did not run to Haugen & Meier “and their successors and assigns” does not affect the question -in the least. While perhaps the use of those words or their equivalent may in instances be essential to confer the right of alienation in the grantee, their use is wholly unnecessary in a case like that at bar. But specific property or substantial property rights which survive to an executor or administrator — in which classification good will, trademarks, and trade-names must be included — may be transferred from person to person where an indefeasible title passes from the original owner without reference to the language of the different transfers. In other words, an unconditional sale of specific property to A. passes an indefeasible title and empowers him to sell and transfer to B., whether the original muniment of title ran to A. and his heirs and assigns or not. The rule applies to sales of good will. Fleckenstein v. Fleckenstein, 66 N. J. Eq. 252, 53 Atl. 1043; Swarts v. Narragansett, 26 R. I. 436, 59 Atl. 111; Salem Capital Flour Mills Co. v. Stayton Water-Ditch & Canal Co. (C. C.) 33 Fed. 146; Sheppard v. Stites, 7 N. J. L. 90, 91.
Nor was the good will in the case at bar limited by the contract, properly construed, to the original grantees Haugen & Meier,.but, on the contrary, was attached to and an incident to the business transferred and passed to the new firm. Pease v. Rush, 2 Minn. 89 (107);
Affirmed.
