tion officers, the indictment, to be good under section 5515 of the Revised Statutes of the United States, under which it is framed, must state that it was with the intent to effect the election, or the result thereof, otherwise it would be insufficient and quashable. These allegations must, on the trial, be proved to the satisfaction of the jury, beyond a reasonable doubt; if not, no conviction can be had. I am satisfied that the offense is sufficiently charged under the section above referred to and under which it is framed; and that the motion to quash must be overruled.
BARBER V. OONNECTICUT MUTUAL LIFE INS.
(Circuit Court, N. D.Ne1/) York.
BALE AND DELIVERy-GOOD-WILL OF BUSINESS.
The good. will of an established business, is a common subject of contract, although it is nothing but the chance of being able to keep the business which has been established, yet the rights of a purchaser of such good-will will be enforced in equity and recognized at law as effectual between the parties to the contract.
2. INSURANCE COMPANy-AUTHORITY OF GENERAL AGENTS.
Where the general agents of an insurance company, by their representations, induced complainant to invest money in the purchase of the good-will of a special insurance agency; if without right he was deprived of an opportunity of transferring his interest to another, he is entitled to compensation to the extent of his loss.
3. BAME-HESTRICTION ON Am'HORITY.
The general agents of a foreign insurance company in a state other than the state of its creation, having authority to solicit applications for insurance and collect the premiums therefor, and authorized to appoint local agents and pay them reasonable commissions, and obligated to bear all the expenses of the business within their territory, cannot bind the company by their conduct or representations respecting the purchase of the good.wllI of a local agency.
4. SAME-CONTRACT NOT BINDING ON COMPANY.
A contract. which would create the relation of vendor and purchaser between an insurance company and a third !Jarty, and as such outside the ordinary and customary contracts, which are within the implied authority of the generul agents of the company, ill not binding on the company.
Sedgwick, Ames J; King, for complainant. Pratt, Brown J; Garfield, for defendant.
WALLACE, J. The proofs establish, in substance, the theory of the bill that the complainant purchased the good-will of Marvin and of Carr iri their business as local agents for the defendant, upon
BARBER V. CONNECTICUT HUT. LIFE INS. CO.
the faith ·of the assurances of Peck & Hillman, the general agents of the defendant in this state. These representations were to the effect that it had been their uniform practice, while having charge of the local agencies within their territory, to permit their subagents, when desiring to relinquish their agencies, to sell the good-will of the agency business to some acceptable successor, and that the right of the local agents to make such transfers was always recognized and protected by the general agents, and that complainant might rely upon this privilege when he wanted to relinquish his agency. The value of thls right is apparent,' in view of the peculiar character of the interest of the local agents in the business of their agencies. They were not appointed for any definite period of time, they 'received no salary, and their only compensation was by commissions upon premiums collected by them ,while they continued to act as such local agents. They were expected to solicit insurance upon lives for a commission upon the original premiums, and the renewal premiums which might be paid during the continuance of their employment. In view of this uncertain tenure, and, doubtless, in order to stimulate them to make their agencies valuable, the custom of permitting them to dispose of the gooel-will of their agencies had been sanctioned by the general agents. Purchastlrs could be found who would be willing to pay a large consideration for the interest in an established agency business, which was producing a revenue from the commissions to accrue upon the renewal premiums paid in from year to year by those who had of finding such a insured with the agency. The purchaser, and the assurance that the general agents would co-operate in making this a practical and valuable possibility, was a substantial incident of the relation between the subagent and the general agent. Notwithstanding the precarious value of such a right, there seems to be no good reason why it should not be recognized and protected by the law. The good-will of an established business, which is a common subject of contract, is nothing but the chance of being able to keep the business which has been established. The sale of a mere chance, which vests in the purchas!'lr nothing but the possibility that a preference which has been usually extended to those whose rights he acquires will be extended to him, has been enforced in equity, and recognized at law as effectual between the parties to the contract. Phyfe v. Wardell, 5 Paige, Armour v. Alexander, 10 Paige, 571; Hathaway v. Bennet, 10 N. Y. 108. The complainant having been induced by the representations of
Peck & Hillman to invest several thousand dollars in the purchase of this property interest, acquired as against them what he purchased, and if without right he was deprived of an opportunity of transferring his interest to another, he is entitled to compensation to the extent of his loes. It hits been objected; however, that the complainant's remedy is at law, and as there is no relief to which he is entitled except a recovery of damages, the objection seems unanswerable. He cannot to equity upon the ground of fraud or. trust. found his right to His case must rest upon the plain theory of the violation of a contract. There are allegations in the bill that he was deprived of vouchers relating to his agency business by the false representations of the general agents. These vouchers were. the property of the defendant. upon them. The complainant does not assert that he had any There are no difficulties in the way of establishing his damages at law, which would not be encountered in equity. Doubtless it would be difficult in either jurisdiction to determine the just measure of his compensation, but his recovery would depend upon the same rule of damages in both. There is another ground upon: the complainant must fail, and that is because· he has selected' the wrong party as defendant. Peck & Hillman had no authority to bind the defendant by their conduct ot representations respecting the purchase by the complainant of the good will of his predecessors. They were the agents of the defendant for this state to solicit applications for insurance, and collect the premium paid by persons insuring in their territory. They were authorized to appoint subagents and pay them reasonable commissions,and were obligated to bear all the expenses of soliciting insurance and collecting premiums within their territory, including the commissions and expenses of the subagents. Although they were termed general agents, the complainant had no right to assume that they possessed unlimited authority and could bind their principal in a transaction so far outside the scope of the usual powers of agents of their description. The state agents of insurance companies ordinarily exercise limited powers, although they represent their principal throughout an extensive territory. It is stated in May, Ins. § 125, that their powers differ from those of local agents principally in theit geographical extent, except that they may, generally, appoint local or subagents, which local agents cannot. They have a wider field of action tllan local agents, and are expected to exercise a supervisory authority over them.
BARBER V. CONNECTICUT MUT. LIFE INS. 00.
It may for present purposes be assumed that the defendant would be responsible for the contracts made by Peck & Hillman respecting the compensation to be paid to the subagents they were authorized to appoint, but it would not be responsible for a contract made by them giving an extraordinary compensation too. subagent. The limto charge their prinitation upon the implied powers of such cipals is well illustrated by the case of Anchor Life Ins. 00. v. Pease, 44 How. 385, where it was held that the general agents of a life insurance company had no implied authority to make an agreement with a physician employed by them in examining applicants for insurance, whereby the company were obligated to accept his services in payment of the premium on a policy issued to him by the company. The contract to which it is sought to hold the defendants is one which would create the relation of vendor and purchaser between the company and the complainant, and, as such, is quite outside the ordinary and customat·y contracts which are within the implied authority of such agents to make. Furthermore, the proofs' show that Peck & Hillman did not assume to speak for the insurance company in the negotiations respecting the purchase by complainant. The representations made by Hillman were concerning the course which Peck & Hillman had adopted in the past, and would adher.e to in the future, respecting the transfer by their subagents of the good-will of their agencies, and related solely to their personal conduct and intentions. The case is destitute of evidence to show that complainant ever had any reason to suppose that he was dealing with the defendant in the purchase of the agency business. The theo,ry that the complainant was justifiably removed as local agent, for dereliction of duty, has not been considered, because it has not been deemed necessary to the decision of the controversy. Whether there was any misconduct on the part of the complainant, and, if so, whether the right to terminate his agency would relieve Peck & Hillman of liability for refusing to permit him to transfer the good-will of his agency business, are questions which ought not to be determined unnecessarily. The bill is dismissed.
There is hardly space enough within the limits of a note to a case fully to set forth the law of good-will with all its distinctions and details. But the authorities rna;}' be collected, and the general principles stated and partially
illustrated. This will be attempted in the present note. Probably there can be no better definition of good-will than that framed by Mr. Justice STORY, who says: .. Good-will may properly enough be described to be the advantage or benefit which is acquired by an establishment, beyond the mere value of the capital stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of Us local position or common celebrity, or reputation for skill or affluence or punctuality, or from other accidental circumstances Or necessities or even from ancient partialities or prejudices." Story, Partn. § 99. Other definitions are met with in the books; as, for example, in G-rutwell v. Lye, 17 Vest 335, by Lord ELDON; Ohurton v. Douglas, .Tohns. Ch. 174, by Vice-Chancellor Sir W. PAGE WOOD; Wedderburn v. Wedderburn, 22 Beav.84, by Sir .TOHN B.OMILLY, M. R.; Ohissum v. Dewes, 5 Russ. 29, by Sir JOHN LEACH, M. R. See, also, (}iblet v. Read. 9 Mod. 460. Lord ELDON, in Kennedy v. Lee, 3 Mer. 440, says: "There is another way in which the good-will of a trade may be rendered still more valuable; as by certain stipulations entered into between the parties at the time of the one relinqUishing bis sbare in the business; as by inserting a condition that the withdrawing partner shall not. carryon the same trade any longer, or that he shall not carry it on within a certain distance of the place where the partnership tradll was carried on, and where the continuing partner is to carry it on upon his sole and separate account." To this interest or advantage transferred by the retiring partner, JUdge STORY, follOWing Lord (Partn. § 99,) has applied the name "good-will;" but this is not quite accurate. Good-will denotes a relation existing between a man or firm and the public with reference to a particular business. It is the good-Will of the pUblic to the man or firm. All the partner.; in a firm have an interest in the lirm's good-will, and when they withdraw they may take their interest in the goodwill with them, or .sell it to such partners or purchasers as remain to carryon the firm business. But a part of a thing is not the whole of it; no more is a partner's interest in his firm's good-will the good-will, and it cannot properly be so called. Good-will has been held to be purely local; that is, so attached to the house or premises wherein the business was carried on as to pass by a lease or conveyance of such house or premises, (Chissum V. Dewes, 5 Russ. 29; Dongherty v. Van Nostrand, 1 Hoff. 68; Williams v. Wilson, 4 Sandi, Ch. 379; Elliott's Appeal, 60 Pa. St. 161 ;) but the weight of modern authority is clearly against this Reg. view. It is, as has been aptly said by Mr. A. S. Biddle, (14 Amer. 8, " Good-Will,") "a species of incorporeal personalty, subject, with but few exceptions, to the general laws which regulate that kind of property." It may be sold or giyen away, like othllr personal property. MeFarlan v. Stewart, 2 Watts, 111; Holden v. MaMa-kin, 1 Pars. Eq. Cas. 27; Howe v. Searin,q, 19 How. PI'. 14; Dolt.qherty v. Van Nostrand,1 Hoff. 68; Williams v. Wilson, 4 Sandf. Ch. 379; Mussellma.n's Appeal, 62 Pa. St. 81; Sluzckle v. Baker, 14 Ves. 468; 01'utweU v. Lye, 17 Ves. 335; lr[ellersh v. Keen, 28 Beay. 453; B1'adbury v. Diekens,27 Beav. 53; Johnson v. Helleley, 34 Beav. 63; Wcdde1'bu1'1I, v. Weddel'burn, 22 Beav. 84; Turnei· v. Major, 3 Giff. 442; Clmrton V. Douglas, Johns. Ch. 174; Banks v. Gibson, 11 JUl'. pt. 1, 680; Hitchcock v.
BABBEB V. CONNEOTIOtlT MUT. LIFE INS. CO.
Coker, 6 Adol. & E. 438; BeaZ v. Chase,31 Mich. 490; 14 Amer. Law Reg. 561. It may be bequeathed. Hitchcock v. Coker,6 A.dol. & E. 438. See, also, Smith v. Everett, 27 Beav. 446. But see Robertson v. Quiddington, 28 Beav. 529. A few cases hold that good-will is not a partnership asset. See Howe v. Searing, 19 How. Pro 14,an<l cases referre<l to therein. But the clear weight of authority holds that good-will is a partnership asset. Lewis v. Lan,gdon, 7 Sim. 421; Banks v. Gibson, 11 Jur. pt. 1.680; Johnson v. HellelBY, 34 Beav. 63; Macdonald v. Richardson, 1 Giff. 81; Williams v. Wilson,4 Sandt. Cb. 379; Martin v. Van Shaick. 4 Paige, 479; Case v. Abell, 1 Paige, 401; Dougherty v. Van Nostrand. 1 Hoff. 68; MU8sellman's Appeal,62 Pa. St. 81; McFarlan v. Stewart, 2 Watts, 111; Holden v. McMakin, 1 Pars. Eq. Cas. 270; Willett v. Blandford, 1 Hare, 271; WedderbnTn v. Wedderburn,22 Beav.84: Turner v. Major, 3 Giff.442; AU8tenv. Boys, 2 De Gex & J. 626; Bradburyv. Dickens, 27 Beav. 53; Mellersh v. Keen, 28 Beav. 453; Bininger v. Olark, 10 Abb. Pro (N.S.) 264; Shepherd V. Boggs, 2 N. W. Rep. (N.S.) 370; S. C. Neb. 258. Being a partnership asset the question arises whether it survives in case of the death of a partner. Lord LOUGHBOROUGH held that it survived. Hammond V. Douglas, I) Ves. 539. This was the position taken by Vice-Chancellor Sir L. SHADWELL in Lewis v. Langdon, 7 Sim.421. But Lord ELDON, in Crawshay V. Collins,15 Ves. 218; doubted whether Lord LOUGHBOROUGH was correct as to the good-will surviving, and held that it did not survive. 'fo the same effect see Wedderburn V. Wedderburn,22 Beav. 84; Smith V. Everett, 27 Beav. 446; Holden V. McMaki'n. 1 Pars. Eq. Cas. 274; Howe V. Searing, 19 How. Pro 14. In Webster V. Webster, 3 Swanst. 490, :lote, the court refused the suit of surviVing partners to enjoin executors of a deceased partner from the name of the testator in the trade carried on by them in partnership. See, also, Bradbury v. Dickens, 27 Beav. 53; Turner v. Majer, 3 Giff. 442; Williams V. Wilson, 4 Sandf. Ch. 379; Scott V. Rowland, 26 Law T. (N. S.) 391. Upon the point whether, where a partnership is dissolved during the life of the partners, they have each a right to continue business under the old firm name, Sir J. ROMILLY, M. R., in Banks v. Gibson, 34 Beav. 566, said: "If two persons carried on business as Child & Co., and they thought fit to separate, each might call himself Child & Co., and there is nothing to prevent him from so doing." But in Williams V. Wilson, 4 Sandf. Ch. 405, it was decided that one partner could not exclude the others from the business and continue it alone under the old firm name. See, also, Van Dyke V. Jackson, 1 E. D. Smith, 419; Fenn V. Bolles, 7 Abb. Pro 202; Staats V. Howlett, 4 Denio, 559; McGowan, etc., CO. V. McGowan, 22 Ohio St. 370; Bowman V. Floyd, 3 Allen, 76; Spann V. Nance, 32 Ala. 527; Ralnmelsber,q V. Mitchell, 29 Ohio St. 22. Good-will passes to assignees in bankruptcy, (Ex parte Thomas, 12 Mont., D. & De G. 294,) who may sell it, (Crutwell v. Lye, 17 Ves.335,) and pending sale a receiver may be appointed to carryon the business and preserve the good-will, (Martin V. Van Schaick, 4 Paige, 479.) Since it is intangible, or incorporeal, there must be some way by which the person, firm, or corporation possessing the good-will can indicate to the world that such corporation,
FEDERAL REPORTER. "
firm, or person has a right to it. This is done by the use of some symbol or name or trade-mark. A sale or other transfer of the good-will passes the right to use the name or trade-mark which symbolizes it. Indeed, the name Qr trade-mark is considered to be a part of the good-will. The name of a literary production constitutes part of the good-will of the publishers thereof. Thus Bradbury v. IJickens, 27 Beav. 5a, holds that the title of a work," Household Words," forms part of the firm assets. See, also, Hogg v. Kirby, 8 Ves. 215: Bell v.Locke, 8 Paige, Ch. 75: Holden's Adm'r v. McMakin, 1 Pars. Eq. 270: Byron v. 2 Mer. 29: Keene v. Harris, 2 Ves. 342: Seeley v. Fisher. 11 Sim. 582: Spotti,'1Woode v. Cla.rke. 2 Phill. Ch. 154: Prowett v. Mortimer, 2 Jur. (N. S.) 414: Clement v. Maddick. 1 Giff. 98; Chappell v. Sheard. 2 Kay & J. 167: Same v. Id. 123; 8 De Gex. I M. & G. 1; Ingram v. Stiff, 5 Jur. (N. S.) 947; Max-well v. Hogg. L. B. 2 Ch. App. 307; Sheldon v. Houghton, 5 BIatchf. 285. The name under which a business is conducted is part of the good-will of the business. John Douglas, a member of John Douglas & Co., having sold to his partners all his share in the gOOd-will of the firm, was restrained by injunction, at the suit of snch partners, from using the firm name of John Douglas & Co. And the vice-chancellor said that if the old firm had been merely .. John Douglas," and a person -of that name had sold all his share in the good-will of the firm, and" had secured the three managing men in the former business, and was going, as here, to set up the old firm of John Douglas with these three men, I should hold then,' as I hold now, that he was not at liberty to trade under such misrepresentation," (Churton v. Johns. Ch. 174; see, also, Rogers v. Nowill,3 De Gex, M. & G. 614; 6 Hare, 325;) and, generally, if a name be valuable, even another person ot the same name will not be aliowed fraUdulently to use it. Rod.qers v. Nowill, 6 Hare, 325: 3 De Gex. M. & G. 614: Holloway v. Holloway, 13 Beav. 209; Burgess v. Burgess, 3 De Gex, M. & G. 896; Taylm' v. Taylor, 23 Law .1. Ch. 255: IJent v. Turpin, 2 Johns. &; H. 139: Churton v. Douglas, Johns. Ch. 174: Sykes v. Sykes, SBam. & C. 541: Fott v. Lee, 1311'. Eq. 490; Croft v. Day. 7 Baav. 84; Funthom v. Reynolds, 12 Law T. (N. S.) 75; Lee v.Haley, L. R. 5 Ch. App.154. So a person will he restrained from representing himself as in business with. or the successor of, another. Harper v. Pearson. 3 Law T. (N. S.) 447; Edgington v. Edgington. 11 Law T. (N. S.) 299. Where the name. trade-mark, or symbols are words publici jUris,-that is. words which the public have a right to l1se,-their use will not be enjoined. The following words have been held publilJi jU1'is: "Pennsylvania Wheat," "Kentucky Hemp,"" Virginia Tobacco," "Sea-Island Cotton," IJ. H. Canal Co. v. Clark. 13 Wall. 311; "Lackawanna Coal," Colladay v. Baird, 4Phila.139; " Extract of Night-blooming Cereus," 5 Phila. 464; "Glendon," (the name of a town,) glendon hon Co. v. Uhler, 13 Amer. Law Reg. 543; but see Hirst v. IJenham, L. R 14 Eq. 542: Rudde v. Norman, L. R.14 Eg. 348. As to the word " Eureka," see Ford v. Foster, 27 Law T. (N. S.) 219. The useof "Bolton's L. L." wail restrained on account of similarity with" Kinihan's L. L .... Kinihan v. Bolton, 1511'. Ch. 75. The use of the word "Anatolia," as applied to licorice, was restrained in McAndrews v. Bassett, 10 Jur. (N. S.) 540;" Onondaga Akron Cement or Water Lime" was enjoined because of similarity with ,. Akron Ce-
BARBER V. CONNECTICUT MUT. LIFE INS. CO.
ment or Akron Water Lime." Aloord v. Newman, 49 Barb. 588. As to ., Christy's Minstrels," see Christy v. Murphy, 12 How. Pro 77. In Wotherspoon;v. Currie, 27 LawT. (N. S.) 393, the defendant was restrained from using the word "Glenfield," the name of a place in Scotland,it having acquired a particular meaning by complainant's U8e of it to designate his man· ufacture of starch. In Bury v. Bedford, 4 De Gex, J. &, S.352, the use of the figure of 'a lion couchant', surmounted by crossed arrows, with four initial letters, J. O. B. S., withil'l the spaces formed by the arrows, was enjoined. Several cases present instances of injunctions granted to enforce contracts relating to the good-will of hotels aadpublic houses. Marsh v. Billings, 7 Cush. 322 ; Howard v. Henriques, 3. Saudf. 725; Stone v. Carlan, 3 Mo, 360; Dei.1J v. Lamb, 6 Robt. 535; Wdodward v. Laza1', 21 Cal. 448. Where the plaintiff held a public house under a lease from the defendant, containing a proviso that at the expiration of the term all such sums of money as could be procured for the good-will of a licensed victualer in raspe.ct of said premises should belong to the plaintiff, at the expiration of the lease the defendant claimed an increased rent, and a sum byway of premium. The plaintiff refused these terms, and the premises were leased to oneB. at an'increased rent, and a premium of £1,300, for a 14-years' lease. Nothing nnder the name of good.will, was paid by B. It was found by an arbitrator that the rent reserved was a sufficient rental for the premises, without any bonus, apart from the special value which the premises possessed, owing to the old and successful business which had been carried on there by plaintiff; and also that the gOOd-will of plaintiff would, if belonging to the defendant, have been worth over £1,300. Held, that the proviso had been broken, and that, in determining the value of the good-will, the arbitrator was not to be gUided abii>olutely by the fact that £1,300 had been paid by B. as premium, and that he was to consider the increased value of the good-will by reason of the general improvement of the locality. Llewellyn V. Rutherford, L. R. 10 C. P. 4;56. A carrier's "route" on a newspaper 1s his property, and may be sold, together with the good-will of the CUii>tomers. It would appear that an adequate remedy existed at law for the breach of contract to sell such a "route," but if it be shown that a breach of such contract would result in exceeding the market value of the route, or that its profits were not ascertainable by a jury, thenspecifie performance will be decreed. Senter v. Davis, 38 Cal. 450. But see Fallon v. Chronicle Pub. 00. 1 MacArthur, 485. Where a corporation, with the consent of its principal stockholders, has embodied their name8 in the corporate name, the right to use the name so adopted will continue during the existence of the corporation, A rival company, subseqnently fOl'med and embracing such stockholders, will have ]]0 right so to use the names of such stockholders as to mislead those dealing with them into the belief that the two companies are the same. Holmes B. & H. v. H. B. & A. M. Co. 37 Conn. 278. It has been doubted whether the good-will oi professional men or firms was a subject of sale or transfer. See .Austin v. Boys, 2 De Gex & J. Farr v. Pierce. 3 Mod. 74. It has been urged that the business of professional
men depended upon tbe confidence of their patrons, and bow, it bas been asked, can this confidence be sold or transferred? Yet it is not unusual for physicians and lawyers to sell their practice. Perhaps sales of interests in .practice and business to younger men who are admitted into the law firm or practice, and thus given an opportunity of acquiring the confidence of patrons, are more frequent than the sales of the entire practice. But the latter is not unusual, and the recommendation of the older practitioner goes. far towards securing for the purchaser the continued patronage and good-will of the circle of patrons. . There is no doubt tbat an attorney's practice may be sold, and a sale of it is not contrary to public policy. Bunn v. Guy,4 East, 190. See, also, Dakin v. Cope, 2 Russ. 170; Thornbu1'1J v. Bevill, 1 Young & C. Ch. 554. But the recommendation of the retiring atttorney may be withdrawn if the purchaser abuses it, (Bunn v. (}"lI,y, supra,) and it appears that such a contract is not specifically enforceable. "The business of an attorney consists in his being employed by others, from the confidence which they repose in his skill and integrity. In what way, then, is the court to decree the transfer of such a business?" Sir WILLIAM: GRANT, in Bozon v. Farlow, 1 Mer. 459. See. also, Baxter v. Connolly, 1 Jacob & W. 580; Candler v. Candler, Jacob, 225; Coslake v. Till, 1 Russ. 376. But an injunction will be issued restraining an attorney who has sold the good-will of his business from practicing. Whittaker v. Howe,3 Bea". 383; Harrison v. (}a·rdner, 2 Mod. 198. Soaninjunction will be granted restraining the vendor of the lease of an academy from teaching school in the neighborhood. Spier v. Lambden, 45 Ga. 319. And see, Bell v. Locke, 3 Paige, 75. .A suit for damages at law will lie if the contract of sale be broken either by vendor or vendee. Bunn v. Guy, 4 East, 190. As to the vendor going into business after selling the good-will, in Shackle v. Baker. 14 Ves. 468, the Lord Chancellor ELDON said that where there is an undertaking upon the sale of the good-will of a trade not to carryon the same business, and to use the best endeavors to assist the purchaser, the remedy for a breach by enticing the customers of plaintiff was by an action of covenant or issue quantum damnijiaatu,/J. and refused an injunction. See, also, Williams v. Williams,2 Swan, 253; Smith v. Fremont, 2 Swan, 330. The general rule appears to be that the vendor of a business and gOOd-will may set up a business similar but not identical with the one he has sold, but he must not solicit his old customers either to deal with him or to refrain from dealing with his vendee, else he will be enjoined. Crut7JJell v. Lye, 17 Ves. 335; Cook v. Colling1'idge, Jacob, 607. See, also, Rupp v ..Ove1·, 3 Brewst. 133; Churton v. Douglas, Johns. Ch.174; Hall v.Barrows,33 LawJ.Ch. 204; Davis v. Hodgson. 25 Beav; 177; Howe v. Searin.q, 19 How. Pl'. 14; Johnson v. Helleley, 34 Beav. 63; Labo1lT(;!lere v. Dawson, L. R. 13 Eq. 322; Palmer v. (h"aham, 1 Pars. Eq. Cas.476; Hall's Appeal, 60 Pa. St. 458; Augier v. Webber, 14 Allen, 211; Beal v. Chase,31 Mich. 490; 14 Amer. Law Reg. 561; Buckin.qham v. Waters, 14 Cal. 147; Ginesi v. Oooper, 14 Ch. Div. 596. But while it is obviously unfair for a retiring partner who has sold his interest in the good-will of his firm to set up business and to attempt to decoy the old customers from the partner to whom the business has been sold, yet
BARBER V. CONNEOTIOUT, HUT. LIFE INS. 00.
no rule of justice requires that, in the event of these customers coming without solicitation to' the retired partner's place, he 1>& restrained from dealing wi.th them. Laggott v. Barrett, 43 Law T. Rep. (N.S.) 641. If a fraudulent representation be ,made in the sale of'thegood-Will of a business, the contraut of sale may be rescinded. Oruess v. Fessler, 39 Cat 836. Evidence to show; that anew store o.,pened by a retired. partner two doors from that of his former copartners, to whom he had sold out, and with whom he had agreed not to' go into business again, resembled the old store in appearance, is admissible in determining whether there has beell\a breach of the agreement. Dethle/s'v. Tamsen,7 Daly, '354. A physician, purchasing the practice of another, whO' has deceived him by falsely representing such practiee as ,being regular, legitimate, and allopathic, and worth $6,000 a year, may sue damages, and upon trial may show that such practice was irregular and eclectic; that it consisted.in par(; of abortion 'cases; and that the income was less than $8,000 per year. .,Bradbll,ry v. ,Bm'den, 35 Conn. 57!7· .The measure of damages for· a. breach of a covenant not to re..enter business on the sale of the good-will ofatmde is not the actual profit ,made, if title to more can be established through the default of the,vendor· .Beott.v·.Mackintosh, Ves. & B. 503. ,. In an action to recover thebll.lance of purchase money of a school, where the vendor had agreed to sell the-good-will of the institution, circuIarsandad'vertisements of a rival school, containing the name of the vendor as a member of the faculty of such rival institution, are not competent 'and relevanttestimony to show damage by way of set-oif, without first showing that such circulars,- etc., were issued, at the instigation of the vendor. McOO'Tdrv.Williams, 96 Pa. St. 78. !i But the remedy fora breach of a contract of sale of good-will is not confined to an action at law for damages, There is a remedy in equity. Some early decisions base the jurisdiction of equity in good-will and trade-mark cases entirely upowfraud and deceit, but 'in the,light of later decisions thiil 1s.not qUite , true. The jurisdiction of equity rests upon complainant's right, title,or property in the firm name, the trade-mark, or the symbol, and the use of a trademark or firm name will be restrained by injunction, although the person using it did so in good faith, without knowledge that it belonged to another, and supposing the trade-mark was merely a technical term. Millington v. Foy, 3 Mylne & C. 338. See, also, Hall Barrow8,33 Law J. Ch. 204; Farina v. Bilverloek, 6 De Gex, M. & G. 214; Partridge v.Mench,2 Barb. Ch.lOl; Leather Oloth Co. Lim. v. .Amer. L. C. Co. Lim. 4 De Gex, J. & S. 143; 1 Hem. & M. 271; 11 H. L...Cas. 523; Wother$poon v. Ourrie, 27 Law T. (N.S.) 393. Andit .allpears that an injunction will not be granted until a title to the good-will or trade-mark is made out in an action at law. See, as to this, Motley v. Downman, Mylne & C. 1; Bacon Y.JOne8, 4 Mylne' & C. 433.'Sir JOHN ROLTS; Acts 25, 26, Viet. c. 42; Part1'idge v. Mench, 2 Barb.· Ch. 101. The complainant who seel,s to restrain another's use of a particular name .or mark, must cOllie into equity with clean hands, else reIiefwill not be granted to him. Thus, in Leathe1' aZoth 00. Lim. v· .Amer. L. O. Qq. Lim. 1] v.15,no.4-21. .
H. L. Cas. 52S, the dismissal of .bill WaB affirmed, on the grouoo that it had beelilguilty ef misrepresentation in usiDgupon goods the words "Crockett & Co.,.Tannoo.Leatfter Cloth, Patented/'and "J. R. & C. C. CrockMahtllfaobuteIs," a.llof which was untrue.!. ' But a' distihotion was pointed out by Lord WESTBURY, .. Suppose," said he, .. a partnellship 'to formed acenbury ago, under a style or firm composed,of the names of the' theJi .partners, and that the partnership has been continuec}' by the "admission of'.new'partners in an unbroken series of 'successiv.e,partnerships, trading under the :same original sty Ie, although the names of the present partners are WhollY' different from those In the original (ii-m. ,Isitianimposltion pn the public that such partners should continue to usetbestyl8' or firm of .tIle originalpartnership?:lrhis question must be answered, without any;doubt, in the negative. ! , suppose Itnind1vidual ora 'firm to have gained credit for a particular manufactu'oo, and thaUlic'g-O"6dsilwa:maTked or stampedih such a way as to denote that they are made by such person or firm, andithat the name has ,gained currency and ,ere6it in ,the market, (there being no secret process or invention.)' 'Gould such'verson or firm, on 'ooasing to Cai'l'Y on business, sell and assign. the to use '8uchname andmatk to another firm, carrying .on the same business in a different place? Suppose a firm of A.; B. & Co. to have ,been" clothiers' in, Wiltshke. fur 50 years;) and..that broadcloth marked "A., B. &; Oo.",Makers,Wilts.,!'.has'obtailled a/great-reputation in the market, and that ,A" Co.,'on discontinuing transfer: the right to useltheir name and mark to the: firm oll'C., D. & Co., who are clothiers in Yorkshire. Would the be proteclJec!i by "court of equityin. their claim to an exclu& Co.?t' r am of opinion. that ,sive riglit.to':usethe no such protection ought to be given. Where any symbol or label claimed as attll;(le.,IIiark is so con9tJ.'tlcted or· worded as 'to make or contain a distinct' assertioll, whic.h.:is false. Iithink nOpl'op.ellty can be claimed for it; or, in other words,therigbt,to the exclusive use'of; ilJ.cannot be maintained." Leather ClothOa., Lim. v· ..4.me1·' LIO. 00. Lim.4'De Ge:x,J.,& S. 143.
Receiver, etc., v.
(Oz'rcuit Oourt, E. D. Wisconsin.
L 8'!iocx Cm'lPANIll:s--SUBSCl,UY.!'ION-How ATTACEQtS. A persoll cannot be held liable as of 8 company until his n8ll).e has signe4 by himSelf or his authorized agentitl the stock-book oftlle company, kept forth8t purpose. 0.zte's naqle in the private memoran'dum-book.of ,8 partysoIiQiting subscriptioD!} the stoc.k of the company is not of itself authority to such person to sign: aJstibscrlption for stock.
'2. SAME";,,,PRon-RATIFltATION OF uNAuTHolnzED ACTS.
The deferidant agreed to subscribe to the stock of' 8· company., providing a . cert81happointment WfiS secured for him, but declaring at the same time that he could not then subscribe for the stock. He subsequently authorized the