Webb v. McCloskey

Decision Date16 December 1887
Citation11 A. 715,68 Md. 196
PartiesWEBB v. MCCLOSKEY.
CourtMaryland Court of Appeals

Appeal from superior court of Baltimore city.

Suit brought by Frank J. McCloskey upon a promissory note executed by James A. Webb, in consideration of the stock and good-will of a business sold him by plaintiff. Judgment for plaintiff and defendant appeals.

Wm. M. Busey, for appellant.

Albert Ritchie, for appellee.

MCSHERRY J.

James Hyland, who was then engaged in business at 119 North Calvert street, in the city of Baltimore, on the last of December 1883, executed and delivered to the appellee a bill of sale of certain personal property pertaining to that business, and some 18 months afterwards sold the same property to the appellee under the following assignment, viz.: "I, James Hyland, trading under the firm name of James Hyland & Company, in consideration of the sum of one thousand dollars to me paid by Frank J. McCloskey, do hereby sell and convey to said Frank J. McCloskey the following personal property, to-wit: The stock, good-will, and fixtures of the store No. 119 North Calvert street, including horse, wagon, and harness, warranted against all adverse claims." On the date of this transfer the appellee sold the same property to Charles W. Webb, received $250 in cash in part payment, and delivered to him the following agreement, viz.: "This is to certify that I have agreed to sell to Chas. W. Webb store No. 119 Calvert street, now occupied by James Hyland; the said Hyland having given me the power to sell, for the sum of $1,100, and to pay one month's rent; possession to be given Saturday, August 14th; two hundred and fifty cash; eight hundred and fifty in thirty days; stock to $150; horse and wagon, $300; fixtures, $50,--and all right, title, and interest in said business." Some days later another paper was executed by McCloskey, which is in these words, viz.: "BALTIMORE, August 13, 1886. Recd. of Charles W. Webb two hundred and fifty dollars in cash, and his note at thirty days from this date, for eight hundred and fifty dollars, drawn to my order indorsed by James A. Webb, in full for purchase money of stock, good-will, fixtures, horse, wagon, and harness, in and about the business conducted under the style of James Hyland & Co., at No. 119 N. Calvert street; full authority to sell and deliver which I possess. And it is hereby agreed that I will not engage in, nor assist James Hyland to engage in, the same business in the neighborhood of No. 119 N. Calvert street." Upon the execution of this last paper, Charles W. Webb delivered to the appellee the promissory note sued on in this case, signed by him, (Webb,) payable to the appellee, and indorsed by the appellant, James A. Webb, for the balance due by Charles W. Webb to the appellee on the above-mentioned purchase. Within two months after these transactions, Hyland opened a competing establishment across the street from 119 North Calvert street, and carried on business there to the detriment and injury of Webb. Upon the maturity of the note, it was protested for non-payment, and suit was instituted upon it. At the trial a single exception was reserved, and that presents for review the rulings of the superior court of Baltimore city upon the prayers set out in the record. At the argument in this court the appellant's counsel abandoned his first prayer, and we have consequently merely to consider his third and the sixth, which were granted at the instance of the appellee.

The appellant's third prayer sought an instruction from the court to the jury, to the effect that the appellant might recoup out of the claim of the appellee upon the note alluded to, such sum as the jury should find from the evidence the "good-will" of the business sold by McCloskey to Charles W. Webb was injured by the competing establishment opened as herein stated by Hyland, if the jury should find that McCloskey, in making the sale to Charles W. Webb, was acting as an agent or representative of Hyland, and not as the owner himself of the property sold. We have been referred to a number of adjudged cases upon the subject of the sales of "good-will;" but we are unable to see what application they have to this case. While it is undoubtedly true that McCloskey sold, under the paper writing of August 13th, to Charles W. Webb the "good-will" of the business conducted at 119 North Calvert street, and that he bound himself not to engage in and not to assist Hyland to engage in the same business in that neighborhood, it is equally true that McCloskey did not engage in the same business, and that he did not assist Hyland to do so. McCloskey had no power to prevent Hyland from going into the business, and he did not agree that Hyland should not do so. His agreement related only to his own acts, and not to Hyland's. While he sold the "good-will" of the business as he owned it, that sale did not imply that Hyland or...

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