The alleged contract to sell and purchase was oral. Was it for goods, wares, and merchandise to the amount of $50 or more? It is averred in the petition that the subject-matter of the sale was “a pressing club,” and “that said pressing club consists of two Hoffman presses; one Tantex press; one 10-horse boiler; one G. E. washing machine; one Hoffman dry terminal; one Butler cabinet; one Hoffman dry cleaner; one Hoffman extractor; one Butler ñlterer; two fаns, one upright and one suction; one tailoring machine; several hat blocks; all fixtures located in the building at No. •— Bailroad Street in the City of Thomson, Georgia, being a complete dry-cleaning plant; and the good will of J. A. Davidson and оf said pressing club; and the established business and patronage and reputation of said pressing club.” It will be here noted that the pressing club is alleged to consist of certain articles of personalty “and the good will of J. A. Davidson and оf said pressing club; and the established business and patronage and reputation of said pressing club.”
The specific tangible articles here mentioned are included within the terms, “goods, wares, and merchandise,” as those words are used in the statute of frauds. Many courts have held that those words mean all movable property that is ordinarily bought and sold. See 18 Words & Phrases (Perm, ed.), pp. 541 et seq. But we are aware of no decision holding that by the use of the words “goods, wаres, and merchandise,” the statute contemplates only goods that are usually sold on the market, and ’that may be easily sold and resold.
Cason
v. Cheely, 6
Ga. 554,
relied on by counsel for the plaintiff in error, does not so rule. There the subject-matter was the whole of a crop of cotton for the year 1846. The contract was made on September 23, 1846. A reading of the opinion, which was by Judge Nisbet, shows that he was answering the argument that, first, the contract was executory, and, as was urgеd, therefore without the statute; and second, that the contract was in reality one for labor. The court ruled that such contracts are not excluded from the operation of the statute merely because they are еxecutory; that contracts for goods not in esse at the time and of a peculiar character so as to be unsuited to the general market, to be made by the work and labor and with the material of the vendor, at the instanсe of the purchaser, are not within the statute of frauds; and that cotton prepared for market was goods
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and merchandise within the meaning of the statute. Bearing in mind the foregoing, the language of the learned judge that “cottоn is, beyond any other merchandise in this country, salable in the general market and in prompt demand,” does not have the significance which counsel apparently attaches to it. In
Walker
v.
Supple,
54
Ga.
178, it was held that a contract to purchasе an account for $50 or more is within the reason and spirit of the statute of frauds and must be in writing. In
Hightower
v.
Ansley,
126
Ga.
8 (
There was also purchased .and sold, however, the good will of the business, all for the lump sum of $3600. Does the inclusion of “good will” in the sale take the transaction without the statute of frauds ? It has been held that “good will,” as the term is used when speaking of the good will of a business, is not corporеal property; but it has been often defined as advantage or benefit acquired by an establishment, beyond the mere value of property employed in a business, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers on account of its local position, or for other reasons. See the many cases collected in 18 Words and Phrases (Perm, ed.), pp. 555 et seq. A like definition may be found in the opinion of this court in
Armstrong
v.
Atlantic Ice & Coal Corp.,
141
Ga.
464 (
There is no allegation that the “good will” had a separate value, and it is not to be presumed that in the minds of the parties it was so regarded, the petition being construed most strongly against the pleader. The price was fixed on the tangible properties, whose value may have been increased by reason of the good will attached thereto.
This court in
Porter
v.
Gorman, 65 Ga.
11, used the following language: “Good will is defined by Lord Eldon to be ‘nothing more than the probability that the old customers will resort to the old place/ No subsequent definition has changed in any material respect this rendition, and all the writеrs seem to have recognized and adopted it. See BouviePs 'Law Dictionary, title ‘Good-will/ ” One court has said that the good will of a business is not the business, but one result springing out of it. McGowan
v.
Griffin,
The added words, “and the established business and patronage and reputation of said pressing club,” do not enlarge the meaning of “good will.” Whether they mean an advantage, or benefit, or favor; or a probability of continued patronage; or merely the best wishes of the former owner; or are to be regarded as signifying a mere incident adhering to the value of the physical properties of a going concern — we are satisfied, and so rule, that when there is an oral contract to sell for a lump sum of $3600 what is referred to as a business, consisting of certain articles of personalty used therein, which are definitely described, the addition of the words, “and the good will of [the owner],” does not reliеve the transaction of its invalidity when attacked on the ground that it is invalid under the statute of frauds, being a contract for the sale of goods, wares, and merchandise to the amount of $50 or more. Under the prior decisions of this court, hеreinbefore referred to, the meaning of the words, “goods, wares, and merchandise,” is not so restricted as to include only tangible articles.
The plaintiffs in error rely upon part performance, and for that reason urge that thе Code, § 20-402, is not in their way. The petition alleges that one of the plaintiffs, Mrs. Smith, had a lucrative position with The Thomson Company, and at the suggestion of the defendant she gave that up, in order to consummate the trade a few days latеr, and as a result, she is now out of employment. It is also alleged that the other plaintjff ordered
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and paid for more than $100 .worth of equipment, under the direction of the defendant, who told Smith that the latter would need these in the new business. Thе part performance with which the statute deals is “part performance of the contract.”
Neely
v.
Sheppard,
185
Ga.
771 (
We do not overlook the fact that the petition as amended contains an allegation that all the aсts alleged to have been done by the plaintiffs between March 3 and March 9, 1944, were done in pursuance of and as part of the oral agreement and contract entered into between the plaintiffs and the defendant. The acts here referred to are mentioned above, to wit, that one of the plaintiffs at the suggestion of the defendant gave up a lucrative position, and that the other plaintiff ordered certain equipment under the direction of the defendant. To allege that these were part of the oral agreement to purchase, if such be the purpose of the amendment, is to allege a conclusion, and an unsound conclusion. The oral agreement set out in the petition was to purchase, on March 9, 1944, for the sum of $3600, the properties mentioned. That these other acts would not have beep done but for the contract, may be true, but it can not be true that they werе a part of the contract to purchase. The plaintiffs on their part contracted to pay the defendant $3600. The defendant on his part contracted, on that being done, to sell certain property to them, and to deliver possession thereof on March 9, 1944. None of the acts hereinbefore referred to was any part performance of the promise to pay the defendant the $3600, and an allegation to that effect can not so convert it. The demurrer was properly sustained. Judgment affirmed.