Foss v. Roby

• Decision Date: 14 May 1907
• Citation: 81 N.E. 199,195 Mass. 292
• Parties: FOSS et al. v. ROBY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 292

81 N.E. 199

FOSS et al. v. ROBY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 14, 1907

COUNSEL

C. R. Weston, for plaintiffs.

Fred H Williams and Frank M. Copeland, for defendant.

OPINION

BRALEY J.

The title of the plaintiffs to maintain their bill, although questioned by the defendant, is not affected by the intervening bankruptcy of Foss, for by the conveyances described in the fourth paragraph, the firm has become vested with his interest. The Lothrop Publishing Co. v. Lothrop Lee & Shepard Co., 191 Mass. 353, 77 N.E. 841, 5 L. R A. (N. S.) 1077; Jenkins v. Eliot, 192 Mass. 474, 78 N.E. 431. And the evidence taken by a commissioner not having been reported, the case is before us on the pleadings, the interrogatories, answers, and findings of fact. It appears that the plaintiff, Foss, and the defendant were partners engaged in the practice of dentistry, at 132 Court street in the city of Boston, and upon a dissolution of the firm, the defendant sold to him his interest in the office furniture and dental equipment, with the good will of the business. Having formed subsequently a partnership with the plaintiff, Marston, to whom he conveyed a half interest in the personal property, including the good will, they have continued business at 101 Tremont street. After a lapse of about three years, the defendant opened an office at 88 Boylston street, where he has since carried on the practice of his profession. By solicitation, he has obtained many of the patients of the old firm, and his business substantially consists of this patronage. The important questions for decision are, whether the defendant is precluded by his agreement from setting up a competing business, and the measure of relief to which the plaintiffs are entitled. By the contract of sale, while the defendant explicitly conveyed his interest in the good will, he did not expressly covenant to refrain from competition, either as to time, or territory. But the sale being of an established practice, described in the instrument as 'the dental business' then carried on at 'Court street in said Boston,' it was implied, even if not expressed, that thereafter the defendant would so practice his profession as not to injure and perhaps destroy the business he had sold. Dwight v. Hamilton, 113 Mass. 175; Munsey v. Butterfield, 133 Mass. 492. In a mercantile partnership the sale of the good will conveys an interest in a commercial business, the trade of which may be largely, if not wholly, dependent upon locality, and the right which the vendee acquires under such a purchase, is the chance of being able to retain the trade, connected with the business where it has been conducted. Bassett v. Percival, 5 Allen, 345; Hoxie v. Chaney, 143 Mass. 592, 10 N.E. 713, 58 Am. Rep. 149; Webster v. Webster, 180 Mass. 310, 316, 62 N.E. 383; Hutchinson v. Nay, 187 Mass. 262, 72 N.E. 974, 68 L. R. A. 186, 105 Am. St. Rep. 390; Trego v. Hunt, [1896] A. C. 7. But in a partnership for the practice of dentistry, the personal qualities of integrity, professional skill, and ability attach to, and follow the person, not the place. Dwight v. Hamilton, ubi supra; Austen v. Boys, 2 De G. & J. 626. See Smale v. Groves, 19 Ch. J. 157; Palmer v. Mallett, 38 Ch. D. 411. The object to be obtained was the protection of the vendee, and the agreement is to be construed as if the defendant had expressly convenanted, to render the old practice secure, by not competing himself, under conditions by which it might either be impaired or destroyed. If this were permitted, then while retaining the consideration, the defendant might also deprive the plaintiffs of the benefit of their purchase by regaining the customers. Neither is the agreement, under this construction, invalid because unlimited in time, for the consideration paid must be treated as having been accepted by the defendant as a full equivalent for a release of his right to compete within a restricted area, if by such competition the good will sold was, or might be rendered insecure. Dwight v. Hamilton, ubi supra; French v. Parker, 16 R.I. 219, 14 A. 870, 27 Am. St. Rep. 733; Bunn v. Gay, 4 East, 190. Nor is any principle of public policy violated, by unduly restricting lawful competition. Gilman v. Dwight, 13 Gray, 356, 74 Am. Dec. 634; McClurg's Appeal, 58 Pa. 51; Whittaker v. Howe, 3 Beav. 383. See Roussillion v. Roussillion, 14 Ch. D. 368; Underwood v. Barker, [1899] 1 Ch. 330.

Upon resuming practice the defendant sent out printed circulars to former patients, giving the name of the old firm, with the street and number, and announced, that having opened an office in the city, he solicited their custom. By this scheme of advertising he sought to regain the good will with which he had parted, and his efforts...