, 1876-12-23
AN IMPORTANT DECISION.

Following is the decision of Judge
Lewis in the suit of Keith .. Rob-
bins:
In the District Count of the Third
Judicial District, at chambers, before
Hon. j. Il. Lewis, Chief Justice, Dec.
20. 1876.
Keith Us. Robbins and Siblev. = In
Chancery. Bill for injunction.
The case as made is this In Decem-
Der, 1875. Robbins was in possession of
building on Commercial street. in Sc.
attic, engaged therein in the wholesale
and retail liquor trade. With his con-
sent. Keith leased said building and
some rooms adjoining for two years,
from January, 1876; Keith as lessee pays
ing the whole rent therefore. Robbins
surrendered the possession of the build>
ing to Keith. and also gave to Keith the
good will of his retail liquor trade, and
in consideration therefor Keith agreed
to let Robbins occupy a part of the
building free Of rent" and also to give
to Robbins one half of the nett profits
he Keith should make in the retail
liquor trade to be by Keith carried on
in the building. g
This contract was reduced to writing.
and in pursuance thereof Keith fitted
up the room which Robbins formerly
occupied, and has since thon continued
in the retail liquor trade. Robbins
has been in the occupancy of the other
part Of the building. engaged in the
Wholesale liquor trade. Keith has paid
the whole rents. A short time since
Robbins fitted up the room occupied by
him as a retail liquor saloon, and was
about to engage therein in said retail
trade. as was alleged Robbins denied
that he intended so to do. and stated
that ne intended to lease the room to
Sioley. This Court holds that Robbins
had no authority to underlet. and that
if he put Sibley in he would be tres
passer. On this case the court reused
an injunction.
Robbins afterwards put Sibley in, on
verbal agreement by Sibley to pay
him $40 per month rent. and Sibley is
now in the occupancy of the room. en-
gagged IN the retail liquor trade. Keith
brings his suit against both, and asks
that they be enjoined- and prohibited
from carrying on said retail trade in
said room. That the good will of a
business is proper subject of sale
there is no question. and that equity
will by injunction decree specific per-
formance of such conduct is we'll set
tled.-[3 Parsons Govt 375.
There is no express covenant in the
contract here that Robbins might not
carry on the liquor trade in the build
ing. The law seems to be well settled
that mere sale of the good will of
business does not imply a contract or
part of the seller not to set up a similar
business in the same neigbborhood or
in any other place. ia Lave. ch.
1854; Add. Govt 1O2; Bassett VS.. Perci-
val. Allen 345; Por. Post 1862 note !
1t will be seen that the language OF
these authorities and the reasoning on
which the rulings are based is that mere
sale raised no such implication-thati is
a simple sale, with nothing more. But
here we have more than a simple sale
of the good will. There are mutual
covenants between the parties. Rob-
bins gets -oom rent free and half the
profits of Keith's business, while Keith
gets the good will and possession of the
building. In the case in 5 Allen the
court looked into the written contract
to see if from it, any contract not to SO
engage in the same business could be
so implied. There are no authorities
holding that such contract may not from
all the circumstances be implied. and on
principle think it may be. How is 1t
here ? Robbins is in the wholesale and
retail trade. He sells the retail trade
with good will to Keith. What has he
left ? Most certainly the Wholesale
trade, yet sc 'tis not SO expressed in the
writing"
Keith takes this retail trade and gives
Robbins a room rent free, and divides
with Robbins his profits. Was it in
tended that Robbins should carry on
the same trade in a room furnished him
by Keith, rent free, which would tend
o inj ure the business Of Keith, of which
he vas sharer in the profits Assur-
edly not. Equity and fair dealing would
prohibit it. The conclusion here is irre-
sistible that from the circumstances de-
tailed in this contract there is an i'm
piled covenant on part of Rabbins not
to engage in this retail trade in the
room furnished him by Keith. Has
equity jurisdiction to enforce this con-
tract 1t is said by Lord Ridesdale
that the jurisdiction of court of equity
is to be exercised where the power
of the law courts is not sufficient to af.
ford q complete remedy, and where the
principles of law by which ordinary
lad ryix rInhf. h.1t nm,
the principles of universal justice. the
interference of judicial power is me-
cessary to prevent q wrong, and the po-
sitive law is silent Story Eq sec. 80.
This cause comes exactly within the
principles above laid down. Robbins
however. is not himself engaged in the
retail trade, but has put Sibley in to do
what equity will not permit him to do.
Sibley is before the Court. He went in
with fnll knowledge Robbins could not
lease to him. He is amere trespasser,
and is entitled to no more favor in equi-
~ than Robbins. Sibly can be elected
by Keith in an action at law, bat it is 9
rule in equity in such cases not to ad-
minister partial relief and then turn the
parties over to a court of law, but to re-
tain the case and do complete justice
between the parties. The Legislature
has made the liquor traffic legal. Hence
the parties here are to be treated in the
same manner as if they we're engaged in
any other legitimate business.
l shall order an injunction restrain.
ing both Robbins and Sibly from carry
ing on the liquor trade in said room un-
til further order of the Court.
LEWIS, J.