Lazar v. Berg

Eschweiler, J.

Defendant contends that the existence of the written bill of sale with its recital of the consideration, the personal property sold, and the warranty of title excludes as incompetent the oral testimony upon which alone the answers to the first two questions of the verdict relating to the alleged sale of the good will and agreement not to engage in the same business can be supported, if at all.

Very clearly here was a situation where no one or more writings showed on inspection that the agreement was all therein contained. The answer admitting as it did that defendant agreed to stay with the,plaintiff for three weeks to teach him the business, as was stated in the complaint, and reciting that defendant carried out this part of the agreer ment, such promise not appearing in any of the writings, was an express recognition that some at least of their agreement rested in parol. The bill of sale signed by defendant alone was but the means by which a part of the agreement was effectuated. None of the oral evidence received impeached, impaired, or contradicted any of the terms of the bill of sale. The usual warranty of present good title, to the personal property contained in that instrument in no wise included or excluded the other conditions the oral evidence tended to show. •

There was therefore no violation of the established rules of evidence in the admission of the evidence on ahy of the grounds of the objections by defendant. Kipp v. Laun, 146 Wis. 591, 597, 131 N. W. 418, and cases there cited; Red Wing Mfg. Co. v. Moe, 62 Wis. 240, 22 N. W. 414; Pierce v. Woodward, 23 Mass. 206; Locke v. Murdoch, 20 New Mex. 522, 151 Pac. 298, L. R. A. 1917B, 267, note at p. 276; Fusting v. Sullivan, 41 Md. 162.

The cases cited by defendant on this proposition are none contrary to or inconsistent with the position here taken. In some, other writings than a mere conveyance were construed, in others the bill of sale included by express language the good will of the business, and the question was then presented and discussed whether such express clause would permit of reliance upon an alleged implied covenant or an oral promise that the vendor would not enter into, competition. One such cited case, Bassett v. Percival, 87 Mass. 345, has been expressly modified or in effect overruled by later cases, as it is pointed out in Marshall Eng. Co. v. New Marshall Eng. Co. 203 Mass. 410, 421, 89 N. E. 548.

Defendant further contends that the oral evidence; if admissible, does not warrant the sustaining of the jury’s two findings to the effect that as a part of the consideration paid by plaintiff to defendant there was included the sale by defendant of the good will and a further agreement on his part not to engage in competition.

There was but slight reference made, according to all of the testimony, to the phrase “good will of the business” during the negotiations, nor was there an express promise by defendant that he would not thereafter engage in competition in Appleton. The plaintiff’s testimony is that he asked the defendant whether he was going away from the city permanently; that defendant said he was, and was planning to accept a position selling machinery and supplies in California; that he also asked if the sale included the customers, good will, and trade, that defendant said that it did; and that finally, before signing the papers, plaintiff said: “You are selling me your business, your customers, and your good will; it is your intention to leave here and not come back again and engage in the laundry business;” defendant said “Yes, I do,” and that plaintiff then said, “On that basis I will not ask- you to sign an agreement to- that effect; as long as it is understood you do not intend to return and enter into competition with me, then I am willing to proceed with this business.”

The defendant, on the other hand, denied having made such answers, but admitted that at the time of the sale he did not intend to go back into the laundry business in Appleton. He also testified that the good will was never discussed, but that he does not think plaintiff would have bought if he knew that defendant was coming right back to go into competition; and also admitted speaking of his leaving Appleton.

We think this testimony, together with a consideration of the surrounding circumstances, was sufficient to warrant the conclusions arrived at by the jury on these two questions, even though express language to that effect was not used. Zitske v. Grohn, 128 Wis. 159, 161, 107 N. W. 20.

How far the sale of the good will of a business carries with it any limitation as to the right of the vendor thereafter to compete, a discussion of which may be found in Marshall Eng. Co. v. New Marshall Eng. Co. 203 Mass. 410, 89 N. E. 548; Von Bremen v. MacMonnies, 200 N. Y. 41, 48, 93 N. E. 186, and note in L. R. A. 1918F, 1179, it is not here necessary to determine, the two elements being separately found to exist in the case at bar.

Defendant contends that the damages are excessive. After plaintiff purchased in September, the income of the business seems to have rather steadily increased until defendant re-engaged in the same line, and the amount found by the jury approximates the subsequent decrease. We cannot say that the assessment is unreasonable or without support.

By the Court. — Judgment affirmed.