18 S.D. 64 | S.D. | 1904
On the 23d day of July, 1900, plaintiff and defendant mutually dissolved the partnership of Prescott & Bid-well, in the name of which they were engaged for several years immediately prior thereto in the land, loan, abstract and insurance business in the city of Mitchell. The consideration was $5,761, and it is recited in the contract of dissolution that “the said R. D. Prescott sells to said F. A. Bidwell his entire interest in said partnership business which includes the land, loan, abstract and insurance business together with the good will and clientage of said business. * * * It is further agreed that said F. A. Bidwell can conduct the said business in the name of Prescott & Bidwell for two months from this date and the said F. A. Bidwell shall pay the debts which said partnership owe including suit costs in case against Abbie Rhoades and collect all bills owing to said partnership.” The agreement upon which this action is based, and for an alleged breach of which plaintiff recovered judgment, is as follows: “This agreement made this first day of August, 1900, by and between R. D. Prescott and F. A. Bidwell, witnesseth: That R. D. Prescott has this day bought of F. A. Bidwell the abstract books of the records of Davison county, including tax records, judgment docket, small iron safe and letter press, for the sum of two thousand dollars ($2,000), the receipt thereof is hereby acknowledged by said F. A. Bidwell. In further consideration of said sale, said R. D. Prescott agrees to give said F. A. Bid-well the free use of said abstract books at all times, and to keep them in the office of said F. A. Bidwell on lot 17 in block 12, in Mitchell, South Dakota, so long as rent, fuel and lights
“Sec. 1277. Every contract by which any one is restrained from exercising a lawful profession, trade or business of any kind, otherwise than as provided by the next two sections, is to that extent void.
‘ ‘Sec. 1278. One who. sells the good-will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the good-will from him, carries on a like business therein.
“Sec. 1279. Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof.”
The parties to the agreement not being partners at the time of its execution and délivery, the same is clearly void in the particular under consideration, unless appellant sold the good will of the business, and vested the title thereto in respondent. When Bidwell sold the books, letter press and safe to respondent, he owned the established business and everything pertaining thereto, including the important item of good will, which was not mentioned in the. agreement; and his re
The judgment appealed from is reversed, with the direction that the action be dismissed.