323 Mass. 721 | Mass. | 1949
This is a bill in equity to restrain the defendant from operating a garage business in competition with a similar business operated by the plaintiff, and for an award of damages. The defendant has appealed from a final decree which enjoined the defendant and awarded damages in accordance with the prayers of the bill. The case comes to us with a report of the evidence and findings of material facts made by the judge.
Previous to November 15, 1947, the plaintiff operated a garage at 212 Broad Street, Lynn, and the defendant a similar garage at 170 Broad Street, Lynn. The plaintiff
The judge found that the sale “included the good will,” that the “present business [of the defendant] has impaired the good will of his former business and that if he continues it will further derogate from the good will which he sold,” and “that damage suffered by the plaintiff is $420.” A final decree was entered providing that the defendant pay
The defendant contends that the words “good will” are not included in the written agreement for the sale. While the agreement as a whole was typewritten, on careful examination the words “interest and good will” clearly appear to have been written with a pen into the agreement. As there is no rule of presumption in reference to an instrument of this character, the time when the alterations were made would commonly be a question of fact for the judge. Ely v. Ely, 6 Gray, 439, 441, 442. Mindell v. Goldman, 309 Mass. 472, 476. If it be argued, however, that in this case there was no evidence to warrant a finding in favor of the plaintiff that the alteration was made before delivery, there was also no evidence by whom it was made or that it was made in bad faith. Moreover it did not change the meaning of the instrument, since even without the inserted words the instrument would have conveyed the good will by implication. In Canadian Club Beverage Co. v. Canadian Club Corp. 268 Mass. 561, 568, it is stated that where “the sale agreement omits to mention good will in the transfer of a business, it is presumed that the good will passes with the other assets.” In these circumstances the instrument is not rendered invalid in the plaintiff’s hands, even if the alteration is not shown to have been made before delivery. Lee v. Butler, 167 Mass. 426, 430-432. James v. Tilton, 183 Mass. 275, 277-278. As to negotiable instruments (now covered by statute), see Perry v. Manufacturers National Bank, 305 Mass. 368.
It seems evident from the context that words equivalent to “of the business” or “in the business” were omitted by mistake of the scrivener before the word “conducted,” and. the instrument is to be construed as if such words were inserted. Pacific Surety Co. v. Toye, 224 Mass. 98, 99-100. Holt v. Holt, 253 Mass. 411, 413. Revere v. Blaustein, 315 Mass. 93, 96.
Decree affirmed with costs.