Gill v. Ferris

• Decision Date: 30 April 1884
• Citation: 82 Mo. 156
• Parties: GILL et al. v. FERRIS, Appellant.
• Court: Missouri Supreme Court

82 Mo. 156

GILL et al.

v.FERRIS, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Audrain Circuit Court.--HON. ELIJAH ROBINSON, Judge.

AFFIRMED.

Gilliam & Ferriss and W. H. H. Russell for appellant.

The court should have sustained the motion to dissolve the injunction. Mortland v. Holton, 44 Mo. 58. Where several join in a bill, if either is not entitled to relief, the bill must be dismissed as to all. Jones v. Quinnipiack B'k, 29 Conn. 25; Hudson v. Madison, 12 Sun. 416; High on Injunc., § 1613. Allowance of demurrer to the whole bill puts an end to injunction obtained. No suit was maintainable on the second count of the petition. The court erred in permitting any testimony on the bill. The court erred in finding for plaintiffs and in decreeing the injunction. Courts of equity will not enforce specific performance by injunction when the relations of the parties are so changed that it will be an unreasonable hardship on the defendant. Duke of Bedford v. Trustees, 2 My. & K. 552; Davis v. Hove, 2 Sch. & Lef. 341; City v. Nash, 3 Atk. 512; Pomeroy on Specific Perform., 258, 262, 263, 265. Plaintiffs allege they are prosecuting business as Gill & Garrett. They must allege they are prosecuting it as T. M. Gill & Co. Berger v. Armstrong, 41 Iowa 447. Good will expires with the firm, and the firm expires by dissolution or taking in a new partner. Mudd v. Bart, 34 Mo. 465; Spaunhorst v. Link, 46 Mo. 197; Collyer on Part., 163. The contract of 1874 was with the distinct legal entity, T. M. Gill & Co., and was a personal contract with that legal entity and not assignable. Stevens v. Benning, 6 DeG. M. & G. 223; Boykin v. Campbell, 9 Mo. App. 495; Robson v. Drummond, 2 Barn. & Adol. 303; Leahy v. Dugdale, 27 Mo. 439; Davis v. Coburn, 8 Mass. 299; Hall v. Gardner, 1 Mass. 172; Hurd v. Curtis, 19 Pick. 459; Emerson v. Bayliss, 19 Pick 55; Lansden v. McCarthy, 45 Mo. 106. “Where a party enters into an agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he will not of his own mere motion do anything to put an end to that state of circumstances under which alone the agreement can be operative. 1 Addison Cont., § 236; 1 Chitty Cont., p. 89; Stirling v. Maitland, 5 Best & Smith 840; St. Louis & Denver L. & M. Co. v. Tierney, 5 Colo. 582. The plaintiffs are estopped by their own declarations of dissolution. Talcott v. Brackett, 5 Brad. 60; International B'k v. Bowen, 80 Ill. 541; Quirk v. Thomas, 6 Mich. 76; Dezell v. Odell, 3 Hill 222; Pilkington v. Ins. Co., 55 Mo. 172; Chouteau v. Goddin, 39 Mo. 229; Garnhart v. Finney, 40 Mo. 449; Taylor v.Zepp, 14 Mo. 282; Newman v. Hook, 37 Mo. 207. The laches of plaintiffs in standing by for so long a time, while defendant was incurring such large expense in advertising and investing such a large amount of money in his enterprise, is sufficient for a court of equity to refuse an injunction, even if they had a genuine cause of action. State v. West, 68 Mo. 232; Butler v. Lawson, 72 Mo. 227; Landrum v. Union B'k, 63 Mo. 48; Moreman v. Talbot, 55 Mo. 392; Bradshaw v. Yates, 67 Mo. 221; Bliss v. Pritchard, 67 Mo. 181. The injunction should not have been granted, because in the most favorable aspect for plaintiffs it was a case of doubtful equity; they showed no appreciable damage, and the injunction would necessarily work a great hardship to defendant without any corresponding benefit to plaintiffs. Story's Eq. Jur., § 959 b; High on Injunc., § 720; Grey v. Railroad Co., 1 Grant 412; Richards' Appeal, 7 P. F. Smith 105; Harkinson's Appeal, 78 Pa. St. 204.

Macfarlane & Trimble and Forrist & Fry for respondents.

The amendment of the original bill leaving Garrett out was a proper one. R. S. § 3569; also Ib. 3565, et seq; Hillard on Injunctions, 365; Beard v. Dennis, 6 Ind. 200. The contract was not within the statute of frauds, Self v. Cordell, 45 Mo. 345; Lyon v. King, 11 Met. 411; Blonding v. Sargent, 33 N. H. 239; Blanchard v. Weeks, 34 Vt. 589; Hill v. Jameson, 16 Ind. 125. The contract was reasonable and valid; it only bound the defendant to keep out of the business in Mexico, while plaintiffs were engaged in the same business there. 2 Parsons on Conts. 253, 260; Billings v. Ames, 32 Mo. 265; Presberry v. Fisher, 18 Mo. 50; Long v. Lamb, 42 Mo. 545; Peltz v. Eichle, 62 Mo. 171. The defendant was not released from his contract when the firm of T. M. Gill & Co., was changed to Gill & Garrett. Generally the rights and liabilities of a firm cannot be affected by a change of its name, unaccompanied by a change amongst its members. 1 Lindley on Part., p. 211. Garrett was not a partner in the business of Gill & Garrett. He received as compensation for his services, one-third of the net profits, and was to bear none of the losses; this did not constitute him a partner. Cope v. Eyre, 1 H. Black. 49; Wiggins v. Graham, 51 Mo. 17; Campbell v. Dent, 54 Mo. 325. That the introduction of a new member into a firm would work a dissolution of the partnership is not disputed, but that such dissolution would, necessarily, operate as a release of a third party from a contract made with the old firm does not follow. Ordinarily such a contract as this is assignable and passes with a transfer of the business and especially would that be the case if one of the original parties to the contract continued in the business. Peltz v. Eichle, 62 Mo. 171; Bryant v. Davis, 6 Ind. 200; Morgan v. Perhamus, 36 O. St. 517; Guerand v. Daudelet, 32 Md. 561. If defendant sold to plaintiffs as a part of his assets the good will of the business, then all controversy ends. Good will may be sold like other personal property. Chenton v. Douglass, Johns, Ch. 174; Crutwell v. L'ze, 17 Ves. 335; Mussulman's Appeal,62 Penn. St. 81; 14 Am. Law Reg., 328 and authorities cited. When a partnership is dissolved by death or bankruptcy of a partner, the good will should be sold as an asset of the firm and the proceeds distributed among the partners. Crawshay v. Collins, 15 Ves. 218; Willett v. Blankford, 1 Hare, 253; Brodberry v. Dickens, 27 Beav. 53; 14 Am. Law Reg. 334 et seq. When a partner sells out all his share in a going business it will be presumed that such sale includes the good will. 14 Am. Law Reg. 649 and authorities cited. Contracts like the one in suit should receive a liberal construction, so as to carry out the evident intention of the parties as in case of other contracts. Wiggins Ferry v. Railroad Co. 73 Mo. 389.

NORTON, J.

On the 24th of June, 1881, the plaintiffs, Thomas M. Gill and Richard W. Gill, filed in the circuit court of Audrain county their second amended petition sworn to by T. M. Gill, containing two counts, the first of which is as follows: That prior to March 4th, 1874, they were residents of St. Louis, Mo., and defendant, George D. Ferris, was a resident of Mexico, Mo., engaged in the sale of hardware, cutlery, hollow-ware, stoves, manufacturing tinware, selling wagons and agricultural implement business; that defendant did a large business, and had a large and commanding influence throughout a large area of country surrounding said city of Mexico; and they allege his stock was not worth more than $12,000, but that defendant wanted to sell it with the good will for $15,000; that plaintiffs formed a co-partnership, consisting of Thomas M. and Richard W. Gill, under the firm name of T. M. Gill & Co., and bought out defendant for the sum of $15,000, which they allege included his good will, and a memorandum of said agreement was made, as follows:

“MEXICO, March 4th, 1874.

Having this day sold to T. M. Gill & Co. (which firm is composed of Thomas M. Gill and Richard W. Gill), my entire stock of goods and merchandise contained in my four-story brick building and warehouses adjacent, which buildings were lately occupied by me, in consideration of the sum of $15,000, payment of which is hereby acknowledged: Be it known, as a part of this contract, I have this day leased to said T. M. Gill & Co., for a term of three years, commencing from the 4th day of March, 1874, the said buildings, consisting of the four-story brick lately occupied by me, together with all warehouses adjacent, for the sum of $600 per annum; and it is also agreed, that at the expiration of said three years, from March 4th, 1874, that the said T. M. Gill & Co. are to have a further lease of two years, commencing from March 4th, 1877, of said premises, at an annual rent to be fixed as to the amount thereof upon the basis of a fair estimate of the rent annual which said premises will bring, and which may be decided, if necessary, by referee, to be appointed by said T. M. Gill & Co. and myself. It is a part of this contract also that I agree not to engage in the same line of business I have been conducting heretofore in Mexico, Mo., either directly or indirectly, so long as T. M. Gill & Co. shall prosecute it there.

G. D. FERRIS.”

And plaintiffs allege that by some mistake of the scrivener who wrote the same, the good will of said trade and business was omitted, and also the tools and implements, which said tools and implements were actually delivered at time of sale. That plaintiffs made large additions to their stock, and ran said business until the _____ day of _____, 1879, when they took in with them one Garrett, a former salesman, and changed the firm name to Gill & Garrett, and which was done for plaintiffs convenience and that they might more successfully prosecute their business, and they are still doing business in that name, and that they, in 1879, bought and built, 300 feet from Ferris' building, another building at an expense of $12,000, and moved into it and have been there ever since, which defendant well knew at the time.

That in the early spring of 1880 defendant and his son, as G. D. Ferris & Co., opened out in the store of Ferris (formerly occupied by T. M. Gill & Co., but vacated by them, they having removed into...