Page:Harvard Law Review Volume 9.djvu/508

480 480 HARVARD LAW REVIEW, the old business {Chiirton v. Douglas^ Johns. 174, at 191), or to deal with his old customers {Leggott v. Barrett, 15 Ch. Div. 306). That the vendee's right cannot be protected to the full, is no reason in the eyes of the court for not extending protection as far as these authorities will allow. The American decisions on this point are few, but emphatically opposed to the conclusion reached in Trego v. Himt. The courts take the ground that it is the vendor, not the purchaser, who should have protection. The vendor has sold the advantage of an established business. It is only fair that he should be given every opportunity to compete on an equal footing with the purchaser. Goodwill, to be sure, is the probability of retaining the concern's customers ; but it is a probability which the ven- dor may diminish by the exercise of certain unquestioned rights. What consistency is there in allowing the vendor to enter into the same kind of business, and to solicit trade publicly, and yet barring him from his most effective means of competing successfully, namely, the solicitation of his old customers ? This is the attitude of the American courts. ( Williams v. FarraJid, 68 Mich. 473 ; Cottrell v. Babcock &>c. Mfg. Co., 54 Conn. 1 22 ; Close V. Flesher, 28 N. Y. Supp. 736.) After all, is it not a question of original definition? Are not the courts, under the guise of deducing conclusions from accepted definitions, in reality defining anew the nature of goodwill? As goodwill is conceived of, on the one hand, as the chance of keeping the old customers subject to unlimited competition on the part of the vendor, or, on the other, as that chance free from such competition, so will the ves^tDT be allowed or denied the right to solicit his old customers. And perhaps the English view of the scope of goodwill is the more just. Eighty years ago, Vice- Chancellor Plumer said : " A person, not a lawyer, would not imagine when the goodwill and trade of a retail shop was sold, the vendor might, the next day set up a shop within a few doors and draw off all the customers. The goodwill of such a shop in good faith and understanding must mean all the benefit of the trade, and not merely a benefit of which the vendor might deprive him the next day." {Harrison v. Gardner, 2 Mad. 198, at 219.) Yet mainly because of a strong aversion to the enforcement of any contract in restraint of trade that was not to be found in express words, the courts declined to adopt the lay conception of good- will so vigorously approved by the Vice-Chancellor. Is not the decision in Trego v. Hunt commendable in that, as far as it is possible, it does adopt the view, then and now prevalent outside the courts, as to what constitutes fair business dealing? It certainly clothes that shadowy, intangible prop- erty, goodwill, stripped of wellnigh all its virtue by unfriendly decisions, with a Httle substance. There is one seeming inconsistency in the law on this point as laid down to-day in the English courts. Solicitation of customers when the business is voluntarily sold is restrained; sohcitation after the business is compulsorily sold in bankruptcy proceedings is not restrained. ( Walker v. Mottram^ 19 Ch. Div. 355.) On what principle can goodwill mean one thing when a man disposes of his business voluntarily, and another when his business is sold out by his assignees in bankruptcy? Money paid on a Bill bearing a Forged Indorsement. — Does the drawee who pays a bill with a forged indorsement upon it have to bear the loss? Is the familiar doctrine of Price v. Neal properly extended to