The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1894-07-03
LWFlCCenl , HE PROGRESSIVE FARMER. !
POPUL4& TALKS ON LAW,
'od Will.
BY @. SPRAGUE.


connection with business. 1t is our
purpose to discuss briefly the nature
OF this Intangible asset as viewed in
law. y
1t is defined in several cases as the
advantage or benefit which is acquired
by an establishment beyond the mere
value of the capital, stock, funds or
property employed therein, in conse-
quence OF the general public patronage
and encouragement which it receives
from constant or habitual customers
on account Of its local position or com
mon celebrity or reputation for skill or
athuence or punctuality or from other
accidental circumstances or necessities,
or even from ancient partialities or
prejudices. This is definition given
by Story and followed in several cases.
Boiled down, this definition would
seem to mean simply that the good
will Of business consists in the proba
bility that customers will continue to
come to the old place of business. At
best, it is the sale of mere chance,
which vests in the purchaser nothing
but the possibility that a preference
which has usually been extended may
continue.
Every sort of business does not of
necessity possess good will that courts
will protect. It thas been asserted that
good will has no application to the
professions of law, medicine and other
learned professions, inasmuch as the
business of a professional man has no
local existence, and is entirely person
al, depending upon the trust and con
fidence which persons may repose in
his integrity and ability to conduct
their legal affairs. However, of late
sales of professional business have been
held to include good will, so that it
may be said that the law now recog
nizes such business as possessing a
god will. Good will itself, apart from
the business, cannot be sold, it being
mere incident of other property, and
only capable of being sold in connec
tion with it.
AS to it's value, this depends entirely
upon the circumstances of the case. 1t
may be more or less valuable, accord
ing to location, personnel OF its owner
ship, or special advantages in the pro
prietor's mode of conducting it, Not
only may the good will be sold as any
other asset, but also it may be mort
gagged or sold under proceedings of
court in connection with the property
of which it is an incident.
The name of a firm is very import
ant part of the good will of business
carried on by the firm. Persons be-
come accustomed to buying at certain
houses, or houses in a certain locality
or known by a certain name, and be-
ing so accustomed, will resort to such
places, Notwithstanding a change OF
ownership. The name itself becomes
an intangible asset of more or less value,
according to circumstances So in the
case of trade marks, which are an i'm
portant part of the good will of busi
ness. In parting with the good will of
a business the seller means to part with
all that good disposition which custom
ers entertain toward the business iden
titled by the name, trade mark, loca-
ton, etc. It is because Of this value OF
the name that very many firms exist
which do not contain single member
of the Individual name expressed in
the firm.
When one sells a business, he does
not thereby agree not to engage in a
similar business. Contrary to the gen
eraI view, one in selling his business
may agree not to engage in it again,
provided there be a reasonable limit to
the time and place within which he is
not to so engage in the business II
there be no stipulation to the contrary,
the vendor may lawfully establish a
similar business next door to the one
he has sold and invite every body to
come and purchase. although he must
not hold out himself as the successor
to the business of the old firm. 1t is
oenerallv understood that old custom
erg may be solicited, although several
of the older cases hold that they can
not be personally solicited. The ten
dency of the law, however, is to hold
that in the absence of positive agree
ment the vendor may solicit trade from
old and new customers alike either oy
indirect or direct means.
The sale of good will does not trans
fer to the purchaser any right to use
tho name where the name is the name