public as the successor of the old and well-established firm and procure a re-lease of the property. This was excepted to and exception overruled by the chancellor, and there was an allowance of five hundred dollars in favor of complainant for his interest in the remainder of the rental or lease contract, reciting that it was the value of the "goodwill" attached to the offices. From this much of the decree the defendant appealed, and this presents the only question before us.

The rental paid the landlord for the rooms under 378 the lease to the firm was forty-nine dollars per month, and after the firm dissolved defendant continued to pay this amount of rental, and after the expiration of that lease he rerented at the same rate. It appears that the complainant also tried to rerent the rooms at the same price after the firm lease terminated.

The chancellor, as well as counsel, have treated the item of five hundred dollars as the "goodwill" of the firm. It is difficult to define what "goodwill" is. Lord Eldon said that it was simply "the possibility that the old customers will resort to the old place": Cruttwell v. Lye, 17 Ves. 335; Moreau v. Edwards, 2 Tenn. Ch. 349. But in Churton v. Douglas, 1 John. 174, it was said that this was too narrow a view to take of it, and there it was said that it was every positive advantage acquired, arising out of the business of the old firm, whether connected with the premises where it was carried on, with the name of the late firm, or with any other matter carrying with it the benefit of the business of the old firm. But it is evident that this definition is too narrow when applied to the goodwill of a partnership to practice a profession, since it leaves out of view the advantage to be gained from the professional standing and reputation of the partners themselves, which constitutes the principal feature of value in such partnerships. Accordingly, it is insisted that there is no such thing as "goodwill" attaching to professional partnerships. Certainly, there can be no forced sale or transfer in invitum 379 of such goodwill so far as it is based upon professional reputation and standing, such as arises from the skill of physicians, dentists, attorneys, etc., whatever may be done as to such goodwill as arises out of location. Still, in the sense in which Lord Eldon, uses the term "goodwill" of the premises, there may be an advantage of pecuniary value in occupying premises which have been occupied by skilled professional men, and to which the public has resorted or has been attracted by advertisements, or prior visits or general reputation of prior occupants. Many persons attracted to the place by the

reputation of former occupants might remain no matter who might be in occupancy, and others might leave so soon as it was ascertained they were not occupied by the persons in whom they have professional and personal confidence.

It will be seen from this brief mention what an unreliable, and we might say imaginary, value could be placed upon what is called "goodwill" in this case: East Tennessee Bank v. First Nat. Bank, 7 Lea, 420. Certain it is that there was no actual goodwill between these parties after the dissolution. On the contrary, they were hostile in their views.

It was not the case of one professional retiring and recommending his successor to his old customers, which is the principal feature in the sales of goodwill when voluntarily made. But in this instance the defendant was not recommended by complainant. On the contrary, he entered immediately 880 into open and aggressive competition with him. Neither could defendant hope to reap much, if any, advantage from occupying the same quarters, for the complainant, as an active competitor, was hard by in the next room, and as likely to get the old customers, perhaps, as was the defendant. The clerk and master and chancellor evidently fixed the value of this goodwill, as it is termed, from the circumstance that complainant had expressed a willingness to pay defendant five hundred dollars for the use of the offices for the remaining term of seven months unexpired. But it must be evident on the one hand that he might be willing, after having secured his own office adjoining, to pay this sum to have the old offices closed and defendant removed entirely from the premises, and never use the rooms himself, and, on the other hand, defendant did not stand upon an equal footing in bidding for the use of the offices, because if he failed to get them he must go off into some other locality, while, if complainant failed to get them, he had only to step into the next room, and, according to the proof, be as favorably located, if not more so, than in the old offices. The complainant could thus set himself up in the premises of the old firm, and, inasmuch as the defendant had gone out of the building, he might be taken as the successor of the old firm. But defendant could not do this, because complainant was located at his very threshold, to rebut such an inference by the public. We do not think this 881 offer was any criterion of value of the use of these rooms. It might more properly be said to be complainant's estimate of benefit to be used for closing them up. But we think the principle back of all is that no forced sale or transfer can be made

of a goodwill when it is based upon professional reputation and standing or upon business connections. "Goodwill" implies something gained by consent, not something realized by force or coercion. We do not mean to hold that "goodwill" has no value and may not be the subject of a voluntary sale. On the contrary, we think it might be sold and is a valid consideration for a contract, and it has been so held in a number of cases: 8 Am. & Eng. Ency. of Law, 1372, note 7.

In Bunn v. Guy, 4 East, 190, a contract by a practicing attorney to relinquish his business and recommend his clients to two other attorneys, and that he would not re-enter the practice in certain localities, was held a good contract. So in Whittaker v. Howe, 3 Beav. 383. In Hoyt v. Holly, 39 Conn. 326, 12 Am. Rep. 290, there was a similar contract made by a physician with a brother physician, and it was sustained. So in the case of Warfield v. Booth, 33 Md. 63. In all these cases there was a voluntary sale and an obligation to aid the purchaser or not to enter into competition with him for a certain time or in certain localities. No doubt, in this case complainant could have made a valid agreement with defendant for a consideration to leave the old offices 882 and let him have the advantage of their use, but this was not done.

We are of opinion it was error to allow this item, and it is stricken out. Judgment will be rendered as may be indicated by the result. This may be agreed on, or the clerk of this court, in the absence of such agreement, will report the amount. The appellee will pay costs of appeal. Costs of court below will remain as adjudged by that court.

PARTNERSHIP OF PHYSICIANS-SALE OF GOODWILL. It has been held that, on the death of one of two surgeons who were conducting business as partners, the survivor was not obliged, in the absence of a contract, to give up business and sell the practice, but that he might continue the practice and take the emoluments arising therefrom: Note to Tardy v. Creasy, 59 Am. Rep. 689. But a physician may make a voluntary sale of the goodwill of his practice: Hoyt v. Holly, 39 Conn. 326, 12 Am. Rep. 390; and an agreement not to practice medicine in a certain place will be enforced by an injunction: McCurry v. Gibson, 108 Ala. 451, 54 Am. St. Rep. 177, and note.

MEACHAM V. GALLOWAY.

[102 TENNESSEE, 415.]

INNKEEPERS-LIABILITY

FOR BOARDER'S GOODS.

An innkeeper is not liable for the loss, by theft or otherwise, of the baggage or goods of a boarder, unless resulting from the wrongful act of such innkeeper or his servants.

INNKEEPERS-DIFFERENCE BETWEEN GUESTS AND BOARDERS.-A guest at a hotel or boarding-house is one who comes without bargain as to time or price and goes away at pleasure, paying only for the actual entertainment received. A boarder is one who stays for a definite length of time, at a specific price previously agreed upon.

INNKEEPERS-BOARDER, WHO IS.-One who takes rooms in a hotel, in the quarters allotted to regular boarders, for himself, family, and his visitors, for two or three weeks at a special rate, is a boarder and not a guest.

Pierson & Ewing, for the appellant.

Percy & Watkins, for the appellee.

415 MCALLISTER, J. This bill was filed in the chancery court of Shelby county against the defendant 416 partnership, carrying on and operating a public inn in the city of Memphis known as the Peabody Hotel, to hold it liable for the value of a sealskin coat and sealskin cape and a valise, alleged to have been stolen from complainants' room while guests at said hotel. The chancellor, upon final hearing, dismissed the bill. Complainants appealed and have assigned errors.

The first assignment is, the court erred in holding that the relation of innkeeper and guest did not exist between complainants and defendants; second, the court erred in holding that, as boarders, the complainants were not entitled to recover.

The facts may be briefly stated. The complainant and his wife, in December, 1897, were boarding in the suburbs of Memphis, and, desiring to entertain a young lady visitor, engaged three rooms at the Peabody Hotel. At the time Mr. and Mrs. Meacham moved to the hotel, he was told the rate would be two dollars per day if they stayed one week. Mr. Meacham stated that his family might stay as long as two or three weeks. As a matter of fact, the family stayed less than two weeks. There is proof tending to show that complainant and his wife were assigned rooms on the fourth floor, among the regular boarders and families of the hotel, and this was done conformably to the request of complainant, and under an agreement to that effect made by him with the hotel clerk. The proof tends to show that

the rate given, two dollars per day for each person, was a 417 special rate given to all persons who remained longer than a week. Transient guests receiving the same accommodations would have paid higher rates. The proof shows that complainant, his family, and guest occupied three rooms, numbered respectively 139, 140, and 141. Complainant and his wife occupied room 141, while their son occupied room 140, the two rooms being connected by a door. It appears that after complainants had been staying at the hotel about a week, there was stolen from room 141, occupied by complainant and his wife, a sealskin coat valued at three hundred dollars, a sealskin cape valued at two hundred and fifty dollars, a boy's watch and chain valued at twelve dollars, and a gentleman's valise valued at nine dollars.

The larceny was committed after 2 and before 4 o'clock P. M., on December 1, 1897. Mrs. Meacham testified that she had been wearing the sealskin coat during the morning, returned to the hotel about 12:30 o'clock, removed it, and hung it up in the wardrobe where the cape was hanging. She then locked the door, put the key in her purse, and went down to the parlor to see a lady acquaintance; that in about twenty minutes she returned to her room, prepared for lunch, again locked the door, and did not return to her room until 3:30, when she discovered the larceny. Mrs. Meacham testified that the door was locked and her key to the room was in her purse during the time the larceny was committed; that when she returned to her room and made the discovery the door was still locked.

418 There is testimony tending to show that room 140 adjoining 141, with a door connecting, was not locked during the time covered by the larceny. The proof shows that, in addition to the key kept by Mrs. Meacham, there was a key to that room in the hands of the chambermaid, one in the hands of the fireman, and another kept at the office, which might be used by a bellboy, under the direction of the clerk, for the delivery of parcels, etc., into the room. Only one of these keys is accounted for on the day of the larceny-that held by the chambermaid, who testified that the key was in her possession, and that she did not enter the room. She testified that room No. 140, the adjoining room occupied by the boy, was not locked about 9:30 o'clock that morning, but that she did not return to it again until after the larceny.

Mrs. Meacham testified that since the larceny the manner of the chambermaid had undergone a marked change; that, while prior to the larceny she was a very attentive servant, afterward