218 Ill. App. 577 | Ill. App. Ct. | 1920
delivered the opinion of the court.
The United Romanian Meat Market and Grocery Store, a corporation, as complainant, filed a bill in equity in the circuit court of Kane county against the appellant, Louis Abramson, as defendant, praying for an injunction to restrain him from engaging in the meat business within five blocks of its place of business, namely No. 70 North Broadway, in Aurora; also praying for an accounting. Afterwards the appellee obtained leave to file an amendment to the bill, and an amendment was filed. The appellant thereupon demurred to tie bill as amended, and the demurrer was overruled, and then upon the motion of the appellee the court ordered a temporary injunction to issue in accordance with the prayer of the bill. From the order for the temporary injunction as well as the order overruling the demurrer, the appellant prosecutes this appeal. The order overruling the demurrer being an interlocutory order, is not subject to review on this appeal. We shall therefore confine our consideration of the case to the question raised concerning the appellee’s right to a temporary injunction, which is based upon the facts which appear on the face of the bill. It appears from the bill that on February 10, 1919, and for some time prior thereto, the appellant Abramson conducted a retail meat business at No. 70 North Broadway in the City of Aurora, and on that day made a bill of sale to Louis Kish and Griogor Mateiu by.which he sold and transferred to the parties named, certain goods and chattels which are specified in a bill of sale, including meats, canned goods, counters, shelves, meat blocks, scales, knives and other implements used in the meat business, and a heating stove, all located at 70 North Broadway. The bill of sale also contained the following covenant: “And in consideration of the purchase of the above described goods and chattels, said Louis Abramson agrees not to engage himself in the meat business within five blocks of said store for a period of five years,” The purchasers took immediate possession of the goods and chattels sold and transferred to them, also took possession of the store in which the chattels and goods were located, and conducted a meat business at the same place for about a month thereafter. Thereupon ’ Bash, one of the parties to whom the sale had been made, sold out his interest to his partner Mateiu, who continued in the business until July 19. On July 19, Mateiu made a bill of sale to the appellee, which is as follows:
“Know All Men by These Presents, That the Undersigned G-riogor Mateiu of the City of Aurora in the County of Kane and State of Illinois, party of the first part, for and in consideration of the sum of Two Thousand Four Hundred and Ninety-two Dollars, lawful money of the United States of America, to be paid, by the United Romanian Meat Market & Grocery Store, a corporation, of the second part, has granted, bargained, sold and delivered, and by these Presents does grant, bargain, sell and deliver, unto the sáid party of the second part, all the following Goods, Chattels, and Property, to-wit:
“4 counters (3 of them with glass covers) with marble tops; 2 counter-scales; one ice-box; 5 meat blocks; one slicing machine; one sausage stuffer; one platform scale; one lard press; one smoke house; four meat hangers; one lard kettle; six tin boxes; one Mc-Kaskey register system; one looking glass; one bench; one clock; one awning; two gas lamps; one step ladder; 2 back benches; 2 cleavers; 2 small knives; 2 large knives; 2 wash tubs; one grind-stone; one heating stove; one chicken coop; all shelving; also all meats, canned goods, groceries and merchandise, fixtures and all personal property owned in and by me used in the operation of my meat-market and grocery store at No. 70 N. Broadway, Aurora, Illinois.
“The consideration, $2,492.00, above mentioned, to be paid as follows: The sum of Six Hundred Ninety-two Dollars has been hereto paid; the said United Romanian Meat Market and Grocery Store hereby assumes and agrees to pay Four Hundred Dollars to Loui Hudei, and Four Hundred Dollars to Mike Codrina, and the balance, namely, One Thousand Dollars, to be paid by note with approved sureties.
“To Have and to Hold the said Goods, Chattels and Property unto the said party of" the second part, its heirs, executors, administrators and assigns, to and for its own proper use and behoof, forever.
“And the said party of the first part does vouch himself to be the true and lawful owner of the said goods, chattels and property, and have in his full power, good right and lawful authority, to dispose of the said goods, chattels and property, in manner as aforesaid; and he do for himself, his heirs, executors and administrators, covenant and agree to and with the said party of the second part, to warrant and defend the said goods, chattels and property to the said party of the second part, its executors, administrators, and assigns, against the lawful claims and demands of all and every person and persons whomsoever.
“In Witness Whereof, I have hereunto set my hand and seal the........day of July in the year One Thou-
sand and Nine Hundred and Nineteen (1919).
Signed Griogor Mateiu. (seal) ”
The appellee, upon the delivery of the bill of sale, took possession of the goods, chattels and property therein described, and continued in the meat business at the same place; and was in the conduct of such business at the time of the filing of the bill of complaint. In August, 1919, the appellant, Abramson, again opened and established a meat market at No. 48 North Broadway, which is within five blocks of the appellee’s place of business. •
The main question presented for determination on this appeal is whether the appellee is entitled to the benefit of the covenant, in the bill of sale to Kish and Mateiu, by which the appellant bound himself not to engage in the meat business within five blocks of the store where he had been conducting his business. The covenant in question has reference to the good will of the meat business which appellant had established and was conducting at the store referred to. The good will of a business has been defined to be the benefit which arises from it having been carried on for some time in a particular place, or by a particular person or from the use of a particular trade-mark, and its value consists in the probability that the customers of the old firm will continue to be customers to the new. Potter & Co. v. Wait, 15 Ky. L. Rep. (Abst.) 60. And it has been treated as a distinct entity, as a subject of transfer from one person to another; but it is also held that if a business is sold and transferred from one person to'another, the good will is transferred with the business as an incident to such business. Public Opinion Pub. Co. v. Ransom, 34 S. D. 381, 148 N. W. 838; Gompers v. Rochester, 56 Pa. 194; Didlake v. Roden Grocery Co., 160 Ala. 484.
It is insisted by the appellee that by means of the bill of sale to Kish & Mateiu, the business conducted by the appellant at No. 70 North Broadway was sold and transferred to Kish and Mateiu; and that by means of the bill of sale from Mateiu to the appellee it succeeded to the same business and the good will, the good will being incidental to and a part of the business so transferred; and that the appellee is therefore entitled to the benefit of said covenant, which was made to protect the value of the good will. It becomes important, for a proper determination of the appellee’s right, to ascertain whether the business of appellant was actually sold and transferred to the appellee. Inasmuch as the parties reduced their undertaking to writing by making the bills of sale, this question can be determined only from the instrument itself, and the language used therein must control. 9 Cyc. 577; Walker v. Tucker, 70 Ill. 527. It is clear from the terms and wording of the Mateiu bill of sale- that it does not purport to sell or transfer anything but the goods and chattels therein specified and-described; and there is no language which indicates the transfer of any business or good will from the vendor to the vendee. While it may be true that the parties had such intention, the intention cannot be reasonably drawn from the language or the terms of the instrument. It is well settled that the law looks to what the párties expressed in a contract of sale as their real intention. 9 Cyc. 578; Nichols v. Mercer, 44 Ill. 250; Benjamin v. McConnell, 9 Ill. 536. And a contract which has been reduced to writing cannot be added to or varied by parol or extrinsic evidence. Memory v. Niepert, 131 Ill. 623; Longfellow v. Moore, 102 Ill. 289; Kimball v. Custer, 73 Ill. 389; Moulding v. Prussing, 70 Ill. 151; Emery v. Mohler, 69 Ill. 221; Merchants’ Ins. Co. v. Morrison, 62 Ill. 242. The appellee contends that inasmuch as the bill of sale from Mateiu to the appellee transferred to it all the personal property used in the operation of his meat market and grocery store, that it is a matter of reasonable inference that Mateiu intended thereby also to sell and transfer his business and the good will. We cannot agree to this contention. Even if it is reasonable to draw the inference that the appellee bought the goods and chattels to use them in the meat business, this inference could not be drawn to the extent of assuming that he was thereby entitled to the trade established at the place where they were located. There is nothing in the Mateiu bill of sale which would prevent Mateiu from again establishing himself in the meat business, perhaps next door to appellee, and seek to regain Ms trade or customers; nor is there anything to indicate that appellee had the right even to take possession or continue in possession of the place where Mateiu had conducted the business. An intention on the part of Mateiu to sell the business and good will to the appellee with the goods and chattels sold, if such was his intention, could under these circumstances be established only by parol evidence; and parol evidence would not be admissible for that purpose. The covenant in question being one in restraint of trade, must be construed strictly with reference to any right claimed thereunder. Tarr v. Stearman, 264 Ill. 110; Wiggins Ferry Co. v. Ohio & M. Ry. Co., 72 Ill. 360; M. M. Mitchell Co. v. Mitchell, 134 Ill. App. 214.
For the reasons stated, we are of the opinion that the appellee was not entitled to the injunction ordered.
There is an additional reason, however, why the order granting the injunction cannot be sustained. The record discloses that the amendment to the bill contains matters material to the legal sufficiency of the bill and was not verified. It is indispensable to appellee’s right to a temporary injunction that all the material facts alleged in its bill be properly verified by affidavit. Christian Hospital v. People, 223 Ill. 244.
The order granting the temporary injunction is reversed.
Order reversed.
