be sold is fixed, is not void as in restraint of trade, unless the product of the business is an article of necessity, or the sale amounts to an attempt to control prices. In a late case it was held that a contract under which two rival manufacturers agree upon a scale of selling prices for their goods, one of them discontinuing his business and becoming a partner with the other for a specified term, is not void as in restraint of trade, provided the goods manufactured were not articles of necessity, and the transaction did not amount to a conspiracy between the parties to control prices by creating a monopoly. In the opinion in this 1 Dolph v. Troy Laundry Machinery Co., 28 Fed. Rep. 553. See also Jones v. Lees, 1 Hurl. & N. 189; Ainsworth v. Bentley, 14 W. R. 630; Marsh v. Russell, 66 N. Y. 292; Perkins v. Lyman, 9 Mass. 522. Where several parties severally engaged in the business of manufacturing and selling balance shade rollers, for the purpose of avoiding competition, organize themselves into a corporation, and severally enter into an agreement with the corporation so organized, that all sales of the shade roller shall be made in the name of the corporation, and at once reported to it; that when either party shall establish an agency in any city for the sale of a roller made exclusively for that purpose, no other party shall take orders for the same roller in the same place; and that the prices for rollers of the same grade, made by the different parties, shall be according to an agreed schedule, subject to changes upon recommendation of three-fourths of the stockholders, the agreement is valid and not void as in restraint of trade. Central Shade Roller Co. v. Cushman, 143 Mass. 353; S. C., 9 N. E. Rep. 629. The defendant entered into the covenant, as a consideration in part of the purchase of his property, by the Swift & Courtney & Beecher Company, presumably because he considered it for his advantage to make the sale. He realized a large sum in money, and on the completion of the transaction became interested as a stockholder in the very business which he had sold. We are of opinion that the covenant, being supported by a good consideration, and constituting a partial and not a general restraint, and being, in view of the circumstances disclosed, reasonable, is valid and not void.” Diamond Match Co. v. Roeber, 106 N. Y. 473, 486. "The respondents were incorporated on the 17th of July, 1888, and on the 8th of August the agreement of the 3d of July was adopted by the company. It is to be noted that at the time when this agreement was entered into, to which the Nordenfelt Company was a party, the appellant was managing director of that company, and that in the memorandum of association of the amalgamated company, which was signed by the appellants, the objects of the company were stated to be, inter alia, not only the adoption of the agree case, the court said: "It is not obnoxious to good morals, or to the rights of the public, that two rival traders agree to consolidate their concerns, and that one shall discontinue business and become a partner with the other for a specified term. It may happen as the result of such an arrangement that the public have to pay more for the commodity in which the parties deal, but the public are not obliged to buy of them. Certainly, the public have no right to complain, so long as the transaction falls short of a conspiracy between the parties to control prices by creating a monopoly." 1 § 71. Contracts for the Sale of a Good Will.-From an early period the good will of a business establishment, and, to a limited extent, that of a profession or trade, has been regarded as a thing of value, and of the nature of property. As such it may be sold or bartered, and contracts relating to such sales or transfers, if not illegal, will be upheld. Where a person engaged in any branch of business or in a profession, disposes of his stock in trade or of his professional practice, he may enter into an agreement ment of the 3d of July, but also 'to acquire, undertake and carry on, as successors to the Maxim Gun Company and the Nordenfelt Guns & Ammunition Company, the good will of the trade and businesses heretofore carried on by such companies, and each of them, and the property and rights belonging to or held in connection therewith respectively. This is of importance, because the appellant, in a forcible argument, pointed out that the judgment of the court of appeal was largely founded on the fact that the covenant in question was entered into in connection with the sale of the good will of the appellants' business, and was designed for the protection of the good will so sold, and he contended that this was an error, inasmuch as there was no sale by him of the good will on that occasion, he having already parted with it to the Nordenfelt Company, the later sale being by that company, and not by him. I think it is impossible to accede to this contention." Lord Herschel, in Nordenfelt v. Maxim-Nordenfelt Company, L. R. (1894) App. Cas. 535, 540. 1 Dolph v. Troy Laundry Machinery Co., 28 Fed. Rep. 553, 555. See also Whittaker v. Howe, 3 Beav. 383; Jones v. Lees, 1 Hurl. & N. 189; Rousillon v. Rousillon, L. R. 14 Ch. D. 351; Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345; Collins v. Locke, L. R. 4 App. Cas. 674; Oregon Steam Co. v. Winsor, 20 Wall. 64; Morse, etc. Co. v. Morse, 103 Mass. 73. ner. with the vendee not to engage in the same business or profession within a designated territorial limit, and for a fixed period, and such covenant will be held valid. In such cases. the position of the vendor is somewhat stronger than where there is a simple contract that the vendee shall discontinue his business or profession with a valid consideration. In a leading English case, Sir John Romilly, M. R., defined the legal idea of a good will, as follows: "The good will of a trade, although inseparable from the business, is an appreciable part of the assets of a concern, both in fact and in the estimation of a court of equity. Accordingly, in reported cases, Lord Eldon held, that a share of it properly and as of right belonged to the estate of the deceased partIt does not survive to the remaining partners, unless by express agreement, but it may by agreement, as it may be agreed that any particular portion of the partnership assets shall so survive. Good will manifestly forms a portion of the subject-matter which produces profits, which constitutes partnership property, and which is to be divided between the surviving partners and the estate of the deceased partner, according to the terms of the contract, and when that is silent, according to their shares in the concern. There is considerable difficulty in defining accurately what is included under this term good will; it seems to be that species of connection in trade which induces customers to deal with a particular firm. It varies almost in every case, but it is a matter distinctly appreciable, which may be preserved (at least to some extent) if the business be sold as a going concern, but which is wholly lost if the concern is wound up, its liabilities discharged and its assets got in and distributed. I am of opinion, then, that both on principle, on the authority of the decided cases, and on the ordinary rules of common sense, I must, whenever there is a reputation and connection in business, constituting good will, treat that as part of the assets of the concern."'1 Mr. 1 Wedderburn v. Wedderburn, 22 Beav. 84, 104. "It was argued that, in Shakle v. Baker, 14 Ves. 468; Crutwell v. Lye, 17 Ves. 335, and Kennedy v. Lee, 3 Meriv. 452, Lord Eldon has laid down the Justice Story, defines good will, as follows: "Good will may be properly enough described to be the advantage or benefit which is acquired by an establishment beyond the mere value of the capital, stock, funds or property principle that an assignment of the good will of a trade simpliciter, carries no more with it than the advantage of occupying the premises which were occupied by the former firm, and the chance you thereby have of the customers of the former firm being attracted to those premises. But it would be taking too narrow a view of what is there laid down by Lord Eldon, to say that it is confined to that. Good will, I apprehend, must mean every advantage, every positive advantage, if I may so express it, as contrasted with the negative advantage of the late partner not carrying on the business himself, that has been acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously carried on, or with the name of the late firm, or with any other matter carrying with it the benefit of the business. When Lord Eldon, in speaking of a nursery garden, or a locality which the customers must frequent to look at the flowers and other things, and when Sir Thomas Plumer, in an other case, in speaking of a retail shop which a person must enter in order to buy the goods there exposed-they are only, as it appears to me, giving those as illustrations of what good will is. But it would be absurd to say that, where a large wholesale business is conducted, the public are mindful whether it is carried on at one end of the Strand or the other, or in Fleet street, or in the Strand or any place adjoining, and that they regard that, and do not regard the identity of the house or business, namely, the firm." Churton v. Douglas, Johns. [Eng.] Ch. 174. "Now, what good will did he sell? It was not that of his own stall in the same market where he continued to pursue his occupation. During his quasi management of the stall, formerly Journe's, for the brief period of three months, without having posted his name over the stall, as required by the city ordinance, and never occupying it himself in person, he could not have acquired, on his own account, any appreciable amount of additional patronage or good will for that stall. But it is said that upon the death of Journe, the good will that appertained to his stall ceased, and that nothing of the kind could have gone to his heirs. This position is not tenable. It is not exclusively to the person that what is termed the 'good will' is attached, but it is chiefly to the place." Succession of Journe, 21 La. Ann. 391, 393. Good will,' as property, is intangible, and merely an incident of other property. It was not, in this case, an incident of the stock of hardware, tools and machinery which seems to have been the only tangible property purchased by the appellants from the appellees. As a rule, it may be said that 'good will' is never an incident of a stock of merchandise; but, generally speaking, it is an incident of locality or place of the store room or place of business." Rawson v. employed therein, in consequence of the general public patronage and encouragement, which it receives from constant or habitual customers, on account of its 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. § 72. The Subject Continued.In a recent case in New York, the rule was stated by the court, as follows: "While the law, to a certain extent, tolerates contracts in restraint of trade or business, when made between vendor and purchaser, and will uphold them, they are not treated with special indulgence. They are intended to secure to the purchaser of the good will of a trade or business a guaranty against the competition of the former proprietor. When this object is accomplished it will not be presumed that more was intended,"2 Where a contract of this character Pratt, 91 Ind. 9, 16. The "good will" connected with any trade or occupation is a valuable right, and may be made the subject of barter and sale. If unlawfully taken away or destroyed, the law will award compensation to the injured party. Where customers, who resort to a particular locality, are driven therefrom by reason of an attachment having been levied, the trade loses what is known as "good will," and suffers not merely a loss of profits. Carey v. Gunnison (Iowa), 17 N. W. Rep. 881. 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. Barber v. Conn. Mut. Life Ins. Co., 15 Fed. Rep. 312. 1 Story on Partnership, § 99. See also Smith v. Everett, 27 Beav. 446; Lindley on Partnership, 842. 2 Greenfield v. Gilman, 140 N. Y. 168, 173. See also Chapin v. Brown, 83 Iowa, 156; s. c., 32 Am. St. Rep. 297; Keeler v. Taylor, 53 Pa. St. 467; Rousillon v. Rousillon, L. R. 14 Ch. D. 351; Jacoby v. Whitmore, 48 L. T. 335; Smith v. Martin, 80 Ind. 260; Vickery v. Welch, 19 Pick. 523; Taylor v. Blanchard, 13 Allen, 370; Roller v. Ott, 14 Kan. 609; Warfield v. Booth, 33 Md. 63; Alger v. Thacher, 19 Pick. 51; Mackinnon Pen Co. v. Fountain Ink Co., 48 N. Y. Sup. Ct. 442; Richardson v. Peacock, 33 N. J. Eq. 597; Finger v. Hahn, 42 N. J. Eq. 606; Levy v. Walker, L. R. 10 Ch. D. 436; Labouchere v. Dawson, L. R. 13 Eq. 322; Cruttwell v. Lye, 17 Ves. 306; Price v. Green. 16 M. & W. 346; Gale v. Reed, 8 East, 80. |