Johnson v. Friedhoff

27 N.Y.S. 982 | New York Court of Common Pleas | 1894

PER CURIAM.

The good will of a business is the custom which it attracts, and the benefits or advantage it receives from constant or habitual customers, and the probability that the old customers will continue to come to the place. 1 Burrill, Law Dict. 689; Fenn v. Bolles, 7 Abb. Pr. 202. The vendor who sells the good will of a business guaranties nothing, for, in the nature of things, he can give no assurance that' the patronage of the place will continue. It is the sale of a mere chance that a preference which has usually been extended will continue. 8 Am. & Eng. Enc. Law, p. 1366. He sells what he has, and if the purchaser, when he attempts to continue the business, discovers that there is no trade or custom connected with it, he is without remedy, unless he can show some fraudulent representation or suppression of fact on the part of the vendor. In this case there is an allegation of a suppression of fact, but there is evidence that the auctioneer expressly stated at the sale that the license had been revoked. If there were any question of fact upon that point, it was for the jury. The court dismissed the complaint upon the ground that the evidence established that there was no good will to sell. It appeared that the license of the place had been revoked on account of a crime committed there, but there was nothing in the evidence, besides, to show that, if the place were reopened under reputable management, a license could not be procured, and the business conducted so as to attract the trade or custom which it formerly enjoyed, or which it was likely to acquire on account of the location of the premises. Until the defendant had actually attempted to conduct the business upon the premises, there was no means of determining whether the former custom could be induced to return. This was a matter which depended wholly upon experiment, and the experiment had not been tried.

As to the failure to assign the lease, the defendant having refused to complete his purchase, the tender of such assignment was not necessary; and the court having expressly refused to dismiss upon the ground of want of assignment, thereby relieving the plaintiff from the necessity either of proving it or amending his complaint, which he might have asked leave to do, the dismissal cannot be affirmed on that ground. Judgment reversed, and a new trial ordered, with costs to abide the event.