MORGAN v. SCHUYLER

DANFORTH, J.

There was nothing in the former relations of the parties, or the express terms of the agreement of dissolution which gave to either one the good will of the business theretofore conducted by them under the firm name of "Morgan Schuyler," nor was either in any way restrained from continuing the practice of his profession on his own account in any place. Yet the defendant became the equitable assignee of the unexpired term of the lease under which the firm held its place of business, and the sole owner of certain partnership property and fixtures. He thereby acquired an advantage over the plaintiff, for he had the exclusive right to occupy the rooms of the late firm, and as incident thereto, the benefit of that good will, which Lord ELDON defines, in Crutwell v. Lye (17 Vesey, 335), "as the probability that the old customers will resort to the old place." The extent of this depends partly upon the force of habit, and in the case of such business as had been carried on by these parties in some degree upon the satisfaction which the patient had received at the hands of one or the other member of the firm, but it is after all a very different thing from the good will which may be said to attach to the person of a professional man, as the result of confidence in his skill and ability. The first is of no value except to the occupant of the place Clussum v. Dewes (5 Russell, 30), while the latter is inseparable from the person, and follows its possessor wherever he goes. So far as it belonged to the plaintiff, it could not have been transferred to the defendant, but the advantage secured to him as the occupant of the old place of business, would doubtless have been rendered more valuable if the plaintiff had retired, not only from the firm, but from the practice of his art. This, however, he not only did not undertake to do, but it was understood by both parties at the time of dissolution, that the plaintiff was at once to open an office, and carry on his business of dentistry, in the same city. This fact precludes the idea that the defendant acquired any good will in the business, except such as was incident to his sole ownership of the property, mentioned in the agreement. It is evident, therefore, that it was not the intention of the parties that the defendant should in the conduct of his business, in any manner use the plaintiff's name either in combination with his own, as "Morgan Schuyler," or in subservience to it, by declaring himself "the successor" to that firm. It is not claimed that there is any express contract to that effect, and none can be implied, either from the language of the agreement actually made, or from any fact or circumstance connected with it.

The case was argued by the learned counsel for the appellant, with much ingenuity, but I do not think that the cases cited by him sustain the appeal. On the contrary in Dougherty v. Van Nostram (1 Hoff. Chy., 70); Musselman Clarkson's Appeal (62 Penn. St., 81); Williams v. Wilson (4 Sandf. Ch., 379), the good will in question was that only which pertained to the place of business, and no case holds that the good will included the right to a continued use of the name of the firm. Indeed in such a case, the retiring partner would have given up the advantages, but remained liable to the risks and burdens of business, for if his name continued upon the signs or other advertisements of the firm he would be bound to every one who gave credit thereto, in ignorance of the real state of the case, and liable for all debts contracted in the firm name. The injury in such a case is obvious. Nor has the defendant any better right to declare himself the "successor of" the firm of "Morgan Schuyler." In so doing he represents not only that the firm is extinguished but that his co-member has quit, or retired from business. The latter therefore will lose the patronage to which he is entitled, for those persons who might otherwise resort to him for assistance will be misled into supposing that his services cannot be obtained. In either aspect the plaintiff's case was made out. It does not follow, however, that the defendant may not avail himself of the full value of his purchase, and to that end by signs and advertisements refresh the memory of those customers who had acquired a preference for the particular locality in which he continues business, or recall to their attention the circumstance to which that preference might be due. He may lawfully describe the rooms as "formerly occupied by Morgan Schuyler," and himself as "formerly" or "late" of that firm, by these or other phrases. He would thus state simply facts, belonging to his own life, or incident to the office, as much so as the time or place of his birth, the name of his father, or instructor, the college from which he graduated, or the time when the premises were first used in the practice of his calling. All this might be done in good faith. What has been done is quite different, and apparently for another purpose, without right, and to the plaintiff's injury.

The conclusion of the court below, was, I think, correct, and the judgment appealed from should be affirmed.

All concur.

Judgment affirmed.