Webster v. Webster

• Decision Date: 03 January 1902
• Citation: 180 Mass. 310,62 N.E. 383
• Parties: WEBSTER et al. v. WEBSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 310

62 N.E. 383

WEBSTER et al. v. WEBSTER.

Supreme Judicial Court of Massachusetts, Middlesex.

January 3, 1902

COUNSEL

Burke & Corbett, for appellants.

J. M Lesser and D. B. Gove & Son, for appellee.

OPINION

KNOWLTON J.

The decision of this case depends on the construction to be put upon the sale that was made under that part of the articles of copartnership which provides for a conveyance of the partnership property by the defendant to the plaintiffs on the termination of the partnership by its own limitation. It is contended by the plaintiffs that the defendant has sold to them the good will of the firm, and that a solicitation of trade by him from former customers of the firm is an unlawful interference with their rights of property. The decisions in different jurisdictions touching the rights of the vendor and of the purchaser resulting from the sale of a business with the good will belonging to it are somewhat in conflict. In England the rule now established seems to be that on a sale of a general mercantile business with the good will belonging to it the vendor is not precluded from establishing a new business of the same kind which may come in competition with that which he sold, so long as his efforts are not directed against those activities and projects which, in a sense, may be said to belong to the business for which he has been paid. In a late case (Trego v. Hunt [1896] App. Cas. 7) it was held, overruling Pearson v. Pearson, 27 Ch Div. 145, that a copartner about to leave a firm under a previous arrangement that the good will should belong to his copartners who remain had impliedly agreed to do nothing to deprive the others of the benefit of the good will, and that taking the names of the customers of the firm from the books, with an avowed purpose to solicit their trade for a new business of the same kind which he was about to establish, called for an injunction against such solicitation. At the same time his right to establish a new business in competition with the other, so long as he did not attempt direct interference with the customers of the firm or with the particular business then being done by it, was recognized. The decisions in America are far from uniform. The cases of Cottrell v. Manufacturing Co., 54 Conn. 122, 6 A. 791; Williams v. Farrand, 88 Mich. 473, 50 N.W. 446, 14 L. R. A. 161; Ward v. Ward, 15 N.Y.S. 913; Close v. Flesher, 28 N.Y.S. 737; and Vonderbank v. Schmidt, 44 La. Ann. 264, 10 So. 616, 15 L. R. A. 462, 32 Am. St. Rep. 336,--tend to show that, after having sold the good will of a firm, a former partner in it may endeavor to obtain trade of its old customers, not only by public advertisement, but also by direct and personal solicitation. Cases in New Jersey and in Ohio hold that such solicitation is in violation of his implied contract to do nothing directly to imperil the value of that which he has sold. Coal Co. v. Spangler, 54 N. J. Eq. 354, 34 A. 932; Burckhardt v. Burckhardt, 36 Ohio St. 261. Looking at the reasons that underlie the different decisions, the principal practical questions to be determined in such cases are, what is the nature of the property that has been sold, and what is the intention of the parties as manifested by their contract? The good will to which the contract relates may mean more or less, according to the nature of the business and the relations of the parties. In this commonwealth it was held in Bassett v. Percival, 5 Allen, 345, that a sale of the stock and good will of a grocery store in Boston did not impose any personal restraint on the vendor, nor restrict his right to transact a similar business in another place at a subsequent time. In the report of this case it does not appear that there was any personal solicitation of former customers, although the new store was very near the old one. In Angier v. Webber, 14 Allen, 211, 92 Am. Dec. 748, the business whose good will was sold was that of carriers between Boston and Somerville, who occupied stands in certain streets, and whose business was done with their customers at their houses and shops and on the streets. It was held that the establishment of a new carrying business over the same route was a...