Howard v. Taylor

• Decision Date: 29 May 1890
• Citation: 8 So. 36,90 Ala. 241
• Parties: HOWARD v. TAYLOR.
• Court: Alabama Supreme Court

8 So. 36

90 Ala. 241

HOWARD v. TAYLOR.

Supreme Court of Alabama

May 29, 1890

Appeal from circuit court, Morgan county; H. C. SPEAKE, Judge.

This action was brought by the appellee, W. T. Taylor, against the appellant, Frank Howard, to recover for the breach of a contract, alleged to have been entered into by defendant with plaintiff. The defendant requested the following charges in writing: "(1) If for the breach of the promise stated in the complaint the plaintiff has any remedy it is by an action on the case for the recovery of consequential damages; and this being an action of assumpsit, the plaintiff cannot recover, and the verdict of the jury must be for the defendant. (2) The facts in evidence do not entitle the plaintiff to recover, and the verdict of the jury must be for the defendant." The court refused to give these charges and the defendant duly excepted to their refusal, and to the giving of the charges as shown by the opinion.

Brickell & Harris, for appellant.

Wert & Speake, for defendant.

CLOPTON J.

The facts on which the instruction as to the measure of recovery is based are: That there was a sale by defendant to plaintiff of the bar fixtures, the right to lease the house in which defendant was doing business, and the goodwill of the trade or business, for the gross sum of $1,400; that defendant promised to treat and regard his licenses, the estimated cost of which for the unexpired term formed a part of the $1,400, as canceled; also not to engage or continue, after the sale, in the business of retailing in the town of Decatur, but to remove his stock of liquors to Limestone county for sale; and that he subsequently removed them to another house in Decatur, and engaged in and continued the business of retailing. On these facts, hypothetically stated, the court instructed the jury that plaintiff was entitled to recover the difference between the value of the bar fixtures and the right to lease the house, and the sum of $1,400, with interest from the time of payment. The only breach of the contract of sale hypothesized in the charge consists in defendant's engagement in an independent business of the same kind in Decatur. The instruction proceeds on the theory that the total destruction or deprivation of the good-will is the necessary consequence of such breach of the contract, and that, in such case, the law fixed as the standard of recovery the value of the good-will as estimated by the parties to the transaction, such value to be ascertained by deducting from the gross sum paid the value of the property purchased by plaintiff other than the good-will. However difficult it may be to define accurately what is included in the term "good-will," it is recognized as a species of property, the subject of sale and transfer, and is regarded as an appreciable and important interest which the law will protect, though intangible, and, generally speaking, merely an incident of other property. Being the clearest and most comprehensive we have seen, we quote the definition given in Story on Partnership, § 99: "This 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 employed therein, in consequence of the general public patronage and encouragement which it received from constant and 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." It has been held in many cases that a sale or lease of the premises with the stock of merchandise, accompanied by the good-will, does not of itself imply a promise not to engage in business of the same kind in the same locality, or preclude the seller from soliciting the custom of the public by the usual modes of advertisement, or solicitation. In such case the good-will is not regarded as incident of the stock of merchandise, but of the place of business, on account of its advantageous locality and other favorable conditions. Bergamini v. Bastian, 35 La. Ann. 60; Moreau v. Edwards, 2 Tenn. Ch. 347; 8 Amer. & Eng. Enc. Law, 1368, note 3; Labouchere v. Dawson, L. R. 13 Eq. 322. This question we need not decide. Assuming the facts to be as stated in the charge, which we must do in considering its propriety,...