PRECEDENT GOODWILL AND STOCK IN TRADE. 1. Parties. Meaning of "goodwill." Goodwill may be local or personal: - is usually partly local and partly personal; -is property which may be sold; LXXIII. ASSIGNMENT of GOODWILL (a) and STOCK in TRADE to Two COPARTNERS. THIS INDENTURE, made &c., BETWEEN A. B., of &c. [vendor], of the one part; and C. D. and E. F., of &c., (a) Goodwill means every positive advantage as contrasted with the negative advantage of the owner not carrying on the business himself, that has been acquired in carrying on a business whether connected with the premises, or with the name of the firm, or with any other matter carrying with it the benefit of the business: Churton v. Douglas, Johns. 188. It has been said to be the sum of money which any person would be willing to give for the chance of being able to keep the trade connected with the place where it has been carried on: Austen v. Boys, 2 De G. and J. 635. What is called local goodwill, which arises from the habit customers have been in of frequenting the same place, passes naturally on a sale with the premises where the business is carried on: Chissum V. Dewes, 5 Russ. 30 (though the local goodwill of a victualler's business has been held, under peculiar circumstances, to be incident to the stock in trade and furniture, and not to the house: England v. Downs, 6 Beav. 269); but what is called personal goodwill, which is nothing else than the power to recommend the customers of the old concern to the new one (2 M. D. & De G. 296,) has been said to be incapable of sale (see Lord Eldon's observations in Cruttwell v. Lye, 17 Ves. 335; 1 Rose, 123; and see 4 Drew. 139), and does not pass to the assignees in bankruptcy: Ex parte Thomas, 2 M. D. & De G. 294. In most cases, however, goodwill is partly local, and partly personal. The goodwill of a trade is a subject of sale, and property which may be bequeathed, and assets in the hands of a personal representative: 1 Nev. & Per. 814; Giblett v. Reade, 9 Mod. 459; Worrell v. Hand, Peake, N. P. C. 74; Coslake v. Till, 1 Russ. 376; Dakin v. Cope, 2 Russ. 170. And though Lord Eldon doubted whether professional men could be recommended for a sum of money paid instead of for skill in their profession, 1 Jac. 231, it is now well established, that the goodwill of a professional business is a subject of sale equally with the goodwill of a trade: Bunn v. Guy, 4 East, 190; Whittaker v. Howe, 3 Beav. 383; Nicholls v. Stretton, 7 Beav. 42; Swallow v. Wallingford, 12 Jur. 403; and see Austen v. Boys, 24 Beav. 598; 2 De G. & J. 626. ironmasters and colliery proprietors, and copartners [purchasers], of the other part: WHEREAS, by an indenture In the absence of a stipulation to the contrary, the goodwill of a professional partnership survives on the death of a partner, and his representatives have no claim on his copartners, though he may have paid a large premium: Farr v. Pearce, 3 Madd. 74; and the same rule applies to a retiring partner: Hall v. Hall, 20 Beav. 139, and to trade partnerships: Hammond v. Douglass, 5 Ves. 539; but see Lord Eldon's remarks in Crawshay v. Collings, 15 Ves. 227. Where the widow of a dentist, being his executrix, and some of his patients for her sake having promised to support a competent successor named by her, sold his business, and undertook to recommend the purchaser to her friends, it was held that a part, if not the whole, of the price paid belonged to her husband's estate: Smale v. Graves, 3 De G. & S. 706; but the goodwill of a milliner's and dressmaker's business carried on by a woman before her marriage, and by her husband and herself after the marriage, was held to survive wholly to her on his death: Morris v. Moss, 25 L. J. Ch. 194. So far as goodwill is personal, the contract for sale or the assignment must, in order that a Court of Equity may be able to decree specific performance, or secure the vendee in the enjoyment of his purchase, contain express stipulations, as in the text, on the part of the seller to do or abstain from doing particular acts: Bozon v. Farlow, 1 Mer. 459; Dakin v. Cope, 2 Russ. 170: Whittaker v. Howe, supra; it has indeed been said, that a Court of Equity will not, in any case, compel specific performance of a contract for the sale of a goodwill: Baxter v. Conolly, 1 J. & W. 580; Coslake v. Till, 1 Russ. 378; and this may be the case, on account of the uncertainty of the subject matter, where the goodwill is unconnected with the premises, but where a goodwill is mainly or entirely annexed to the premises, and the contract is for the sale of the premises and goodwill, there is not the slightest ground for doubt that such a contract is a fit matter for a decree in a suit for specific performance: Per Kindersley, V. C., in Darbey v. Whitaker, 4 Drew. 134. A contract by a solicitor to recommend to his clients the purchaser of his business is valid: Bunn v. Guy, 4 East, 190: but whether an agreement between two solicitors, that one, on retiring from the business, shall permit the other to carry it on in his name, be or be not within the strict policy of the law, it seems doubtful whether a Court of Equity will assist it: Thornbury v. Bevill, 1 Y. & C. C. C. 554. The Court has decreed specific performance of an agreement to sell the goodwill of a trade, and the exclusive use of a trade secret connected with it: Bryson v. Whitehead, 1 S. & S. 74; and see supra, p. 129, n. (d), and Greer v. Folgham, 1 S. & S. 398; Carter v. Goetz, 2 Ke. 581. PRECEDENT GOOL WILL AND STOCK IN TRADE. 2. Recital of conveyance of freeholds to uses to bar dower for vendor ; 3. of lease to vendor ; 4. of an agreement for a lease to vendor ; : Street, in the of release dated &c., grounded on a lease for a year, and expressed to be made between [parties], the dwelling-house, garden, factory, and other hereditaments in the same indenture described, situate in the parish of, in the county of were assured and limited to such uses, &c. [Dower uses in favour of A. B., supra, p. 308]: AND WHEREAS, under an indenture of lease, dated &c., and expressed to be made between [parties], the said A. B. is entitled to the messuages, tenements, and hereditaments in in the parish of, in the county of said indenture of lease described, for the residue of a term of twenty-one years, computed from &c., at the rent reserved by, and subject to the covenants by the lessee and conditions contained in the said indenture of lease [similar recital of another lease, dated 31st of March, 1855] AND WHEREAS, by an agreement dated &c., and expressed to be made between [parties] the said [lessors] agreed to grant, and the said A. B. to accept, a lease for twenty-one years from Midsummer-day then last of the lands and hereditaments in the parish of, in the said county of, in the said agreement particularly mentioned, at such rents, and subject to such covenants and agreements by the said A. B., as are in the said agreement particularly mentioned: AND WHEREAS the said A. B. hath heretofore carried on the business of an ironmaster, at aforesaid, and at several other places: AND WHEREAS the said A. B. is possessed of and entitled to an extensive stock in trade, consisting of materials for and book debts; manufacture, manufactured goods, machinery, and implements of manufacture, and trade fixtures, furniture, and other articles at aforesaid and in other places, and is also entitled to book debts due to him to a large amount, and to a sum due to him on the balance of his account at his bankers: AND WHEREAS the particulars of the said book debts due to the said A. B., and also of the said debts owing by the said A. B., are all entered in and appear by the books of account of the said A. B.: AND WHEREAS the said A. B. is entitled to divers other sums due to him on divers securities, including a debt of large amount due 5. of vendor having carried on a trade; --and being entitled to stock in trade -and money of particulars being entered in account books; --of vendor having money owing to him on securities, PRECEDENT LXXIII. GOODWILL AND STOCK IN entitled to from X. Y., Esq., and secured by a mortgage: AND WHEREAS the said A. B. is also entitled to certain contracts or orders connected with the said business: AND WHEREAS the said A. B. is desirous of retiring from the said business of an ironmaster, And an arrangement hath and being been entered into between the said A. B. on the one part, and the said C. D. and E. F. on the other part, for the retirement of the said A. B. from the said business, and for the succeeding of the said C. D. and E. F. to the same in all its branches; and as part of the said ment, it was agreed that the said A. B. should in consideration of £- -(convey the said freehold heredita- for the purpose; ments comprised in the said indenture of the arrange day of unto and to the use of the said C. D. and E. F., their heirs and assigns, and should, in consideration of £, assign the said leasehold premises comprised in the said indenture of the day of to the said assign the C. D. and E. F., their executors, administrators, and VOL. II. L L contracts, business in favour of purchasers; -particulars of arrangement PRECEDENT GOODWILL AND STOCK IN TRADE. 7. that agree ment has been partly effectuated: -as to the freeholds and leaseholds by conveyances, -as to balance by transfer, -by delivery of securities; during his life, And that the said C. D. and E. F. should by their joint and several covenant secure to the said A. B., his executors or administrators, the payment, at or before the expiration of seven years from the death of the said A. B., of the sum of £5000 with interest for the same in the meantime after the rate of 5 per cent. per annum, And that the said C. D. and E. F. should immediately before the execution of these presents pay the further sum of £20,000 (including the said sums of £—, £——, £, and £, agreed to be paid as the consideration for the said freehold and leasehold premises as aforesaid) into the hands of W. C., of and R. H., of P. W., of |