This аction was brought to enjoin defendant from engaging in the business of grain dealer at Kidder, S. D. Judgment was* fоr plaintiff, and defendant appeals from the judgment and from an order denying a new trial.
The facts are undisputed. Defendant, together with one Johnson, under the firm name and style of Norman & Jоhnson Grain Company, was engaged in the business of buying grain at Kidder. Plaintiff, desiring to purchase an elevator at the said town, entered into negotiations with defendant for the purchase of the elevator wherein the above partnership was doing business, supposing the said elevator to be the property of such copartnership. Norman had charge of the businеss at Kidder. Johnson resided at and had charge of a similar business for said firm- at another town. The firm had in all some four places of business at as many different towns. Plaintiff and defendant entered intо an agreement, of which a memorandum was made, which memorandum was dated July 31, 1917. The substance of such memo^ randum was that the party of the first part, the Norman & Johnson Grain Company, agreed to sell their elevator at Kidder, S. D., for $6,500, and agreed not to enter into the buying or selling of grаin in Kidder, and plaintiff agreed to pay the above amount for the elevator on or bеfore August 4, 1917- This memorandum was signed on the part of the first party as follows: “Norman & Johnson Grain ' Comрany, by G. N. Norman, Mgr.” Plaintiff had prepared a bill of sale in which the copartnership was named as grantor, which bill of sale described the said elevator and contained a clausе to the effect that the grantors conveyed the good will of their business and agreed not to •engage in the buying and selling of grain in and around Kidder, S. D. When this bill of sale was presented to Norman for signature, he advised plaintiff that the elevator was not the property of the partnеrship, but was his sole and separate property, and that therefore he could not sign the -bill of sale as prepared. A new bill of sale was then prepared by Norman, which in no mаn *232 ner referred' to the copartnership, except that in designating said elevator it wаs referred to as the “Norman & Johnson Grain Company.” In this bill of sale there was included the follоwing: ■
“As a further consideration for the sale and purchase of the above-described property, the parties of the first part individually hereby agree not to engage in the buying and selling of grain in and around Kidder, S. D. It being agreed thát all the parties of the first part hereby sell the goоd will of the business as: well as the described property.”
The above-quoted words were in substance identical with the corresponding part of the unexecuted bill of sale. ■ AYhile Johnson wаs advised by Norman that he had contracted to sell the elevator, he never was advisеd of, and he never knew of or gave any authority for, the sale of the business or its good will, and he never authorized an agreement not to eng'age in the business of buying grain at Kidder. The partnership, by Norman, afterwards: entered upon, the business of buying and selling grain at Kidder.
The judgment and order appealed from are reversed