A brief but careful review of the fluctua tions of the English cases concludes that without special covenants the measure of protection resulting from the sale of the good will is merely to prevent the vendor from soliciting his former customers, whether they have of their own accord become customers of the new competing firm or not, but he may deal with the old customers or set up a sim ilar business next door, so long as he does not represent it to be the same business as the old one ; 25 Can. L. T. & Rev. 484.
The question is frequently raised whether a covenant not to engage in the same busi ness is violated by the covenantor's accepting employment from a rival in business of the covenantee. • The test is found in the nature of the employment ; Nelson v. Johnson, 38 Minn. 255, 36 N. W. 868 ; and in most cases such employment is held to be a breach, par ticularly when it is as manager, or in such capacity as will result in a substantial inter ference ; Wilson v. Delaney, 137 Ia. 636, 113 N. W. 842 ; Boutelle v. Smith, 116 Mass. 111; Jefferson v. Market & Co., 112 Ga. 498, 37 S. E. 758; American Ice Co. v. Meckel, 109 App. Div. 93, 95 N. Y. Supp. 1060; Merica v: Bur get, 36 Ind. App. 453, 75 N. E. 1083; 14 Ont. L. Rep. 685; and such an agreement was broken by engaging in business as trus tee ; Geiger v. Cawley, 146 Mich. 550, 109 N. W. 1064 ; and the court will see to it that the contract is complied with (as is said in varied terms in many cases) not only in letter but in spirit ; Kramer v. Old, 119 N. C. 1, 25 S. E. 813, 34 L. B. A. 389, 56 Am. St. Rep. 650;. Emery v. Bradley, 88 Me. 357, 34 Atl. 167 ; Finger v. Hahn, 42 N. J. Eq. 606, 8 Atl. 654; Siegel v. Marcus, 18 N. D. 214, 119 N. W. 358, 20 L. R. A. (N. S.) 769, and note. In the comparatively few cases where the em ployment has been held not to be a breach, it has been because the employment has been of such minor or unimportant character as not to occasion mischief ; Grimm v. Warner, 45.Ia. 106 ; Battershell v. Bauer, 91 Ill. App. 181; or where the agreement was construed as only forbidding the engaging in a rival business as principal ; Tabor v. Blake, 61 N. H. 83; or for profit as distinguished from salary ; Haley Grocery Co. v. Haley, 8 Wash.
75, 35 Pac. 595 ; Eastern Express Co. v. Me serie, 60 N. H. 198.
In this country the expressions of the courts as to what the precise effect of a sale of good will, without restrictive covenants, vary as much as might be expected from the in definable nature of the subject. The opinion of Lord Eldon has been, in the main, very closely followed, though often criticised in both countries. Such'a sale has been said to carry with it only the probability that the business will continue in the future as in the past ; Bell v. Ellis, 33 Cal. 620 ; or the favor which the management has won from the pub lic and the probability that the customers will continue their patronage ; Chittenden v. Witbeck, 50 Mich. 401, 15 N. W. 526 ; and commend it to others ; Myers v. Buggy Co., 54 Mich. 215, 19 N. W. 961, 20 N. W. 545, 52 Am. Rep. 811. It has been said that it amounts to nothing more than the right to succeed to the business and carry it on as a successor to the old concern ; 33 Am. L. Reg.
N. S. 217 ; and a federal court terms it "those advantages which may inure to the purchaser from holding himself out to the public as succeeding to an enterprise which has been identified in the past with the name and the repute of his predecessors ;" Knoed ler v. Boussod, 47 Fed. 467, affirmed Knoed ler v. Glaenzer, 55 Fed. 895, 5 C. C. A. 305, 20 L. R. A. 733. The principle of Labouchere v. Dawson that the vendor would not be per mitted to solicit trade from the customers of the old business may seem to be maintained in this country in cases prior to the English decisions ; Palmer v. Graham, 1 Pars. Eq. Cas. (Pa.) 476 ; Angiet v. Webber, 14 Allen (Mass.) 211, 92 Am. Dec. 748 ; Burckhardt v. Burckhardt, 36 Ohio St. 261; and in some later cases it was so held upon the ground that there was an implied contract not to so licit, or that by so doing the value of the thing sold was impaired ; Foss v. Roby, 195 Mass. 292, 81 N. E. 199, 10 L. R. A. (N. S.) 1200, 11 Ann. Cas. 571; Townsend v. Hurst, 37 Miss. 679 ; Ranft v. Reimers, 200 Ill. 386, 65 N. E. 720, 60 L. R. A. 291; Zanturjian v. Boornazian, 25 R. I. 151, 55 Atl. 199 ; but other courts have held that the vendor is not barred from soliciting his old customers ; Wil liams v. Farraud, 88 Mich. 473, 50 N. W. 446, 14 L. R. A. 161; Cottrell v. Mfg. Co., 54 Conn. 122, 6 Atl. 791; Close v. Flesher, 8 Misc. 299, 28 N. Y. Supp. 737. The rule against canvass ing old customers applies in cases of part ners ; Althen v. Vreeland (N. J.) 36 Atl. 479 ; contra; Fish Bros. Wagon Co. v. Wagon Works, 82 Wis. 546, 52 N. W. 595, 16 L. R. A. 453, 33 Am. St. Rep. 72 ; Williams v. rand, 88 Mich. 473, 50 N. W. 446, 14 L. R. A. 161; but not in case of a sale for benefit of creditors ; Iowa Seed Co. v. Dorr, 70 Ia. 481; 30 N. W. 866, 59 Am. Rep. 446 ; or where the firm is dissolved by death and at a sale forc ed by tne administrator of the deceased part ner the good will is sold as part of the as sets ; Hutchinson v. Nay, 187 Mass. 2B2, 72 N E. 974, 68 L. R. A. 186, 105 Am. St. Rep. 390 ; nor has the vendor the right to hold himself out as the successor of the old firm or as con tinuing its business ; Appeal of Hall, 60 Pa. 458, 100 Am. Dec. 584 ; Dwight v. Hamilton, 113 Mass. 175 ; Knoedler v. Boussod, 47 Fed. 465 ; affirmed, Knoedler v. Glaenzer, 55 Fed. 895, 5 C. C. A. 305, 20 L. R. A. 733 ; Smith v. Gibbs, 44 N. H. 335 ; 3 L. T. N. S. 447 ; 11 id. 299; but, in the absence of express con tract to the contrary, he may set up a sim ilar business ; Bergamini v. Bastian, 35 La. Ann. 60, 48 Am. Rep. 216 ; Washburn v. Dosch, 68 Wis. 436, 32 N. W. 551, 60 Am. Rep. 873 ; Bassett v. Percival, 5 Allen (Mass.) 345 ; White v. Trowbridge, 216 Pa. 11, 64 Atl. 862; Jackson v. Byrnes, 103 Tenn. 698, 54 S. W. 984 ; Williams v. Farrand, 88 Mich. 473, 50 N. W. 446, 14 L. R. A. 161; Hoxie v. Chaney, 143 Mass. 592, 10 N. E. 713, 58 Am. Rep. 149; Rupp v. Over, 3 Brewst. (Pa.) 133 ; Moreau v. Edwards, 2 Tenn. Ch. 347 (but in this case there was no conveyance of the good will in terms).