Zeigler v. Sentzner , 8 G. & J. 150 ( 1836 )

Chambees, Judge,

delivered the opinion of the court.

The bill in this case does not claim a specific performance of the contract charged. That is impossible, inasmuch as the defendant, now the appellant, has not and never had the title to the property or thing in relation to which, or to the rights attached to it, the contract is said to have been made.

It cannot be sustained as claiming an account for property belonging to an infant, upon which.the appellant enter- , ed,. thereby making himself liable as guardian, bécause the title to the property occupied never was in the complainant.

Fraud is not alleged in the bill, nor does it profess to be a bill for a disclosure. We have not been able to discover to which head of Chancery jurisdiction we áre to refer for the authority to grant the relief claimed in this bill.

The argument for the appellee seems to assume, that there is something in the character of what is termed in the bill, “ good will,” to vest such jurisdiction in regard to a contract for the sale of it. In Cruttwell vs. Lye, 17 Ves. 335, good will is defined to be, “ the probability that the old customers will resort to the old place,” and considering this to be what is intended here, we perceive nothing in its character requiring us to adopt such a doctrine upon principle. A careful examination qf the cases referred to, and others, has not resulted in finding any decision, asserting that courts of equity ‘will assume jurisdiction over contracts because they relate to good will. They countenance rather the contrary opinion. 1 Chit. Gen. Prac. 858, 859, and the cases there cited.

For the purpose of the argument we will concede the utmost, which the complainant, the appellee, here can claim, that good will is as much the proper subject of contract and sale as another vendible property — that the contract of sale is distinctly and sufficiently alleged in the bill and proved by the testimony; yet we think this must be considered a bill claiming damages for the violation of a contract, the appropriate and ample redress for which is to be found in a court of law, at the hands of a jury.

With this view of the case it is unnecessary to enter into a minute examination of the facts as alleged, or to attempt a reconciliation of the testimony.

If a valid contract has been made, and can be established to entitle the appellee to recover for its violation, his remedy is at law, not in equity; if no such contract can be established, he can have no ground of claim before either tribunal.

The decree in this case is accordingly to be reversed; and the bill dismissed; but under all the circumstances of the case without costs. The court will sign a decree accordingly ; and also an order directing the money deposited by the appellant to be repaid to him.

DECREE REVERSED.