Competition may, however, be prohibited without express covenant, if from the nature of the business an agreement to refrain from it is naturally implied ; Wentzel v. Barbin, 189 Pa. 502, 42 Atl. 44 ; as in the sale of his practice by a physician ; Dwight v. Ham ilton, 113 Mass. 175 ; or engaging in competi tion would necessarily derogate from the grant ; Gordon v. Knott. 199 Mass. 173, 85 N. -E. 184, 19 L. R. A. (N. S.) 762 ; as to establish a newspaper of the same name ; Lawrence v. Printing Co., 90 Fed. 24 ; or if there was an agreement not to do anything in conflict with the transfer ; Hitchcock v. Anthony, 83 Fed. 779, 28 C. C. A. 80. The vendor may bind himself not to engage in the same business within a limited time or distance, by express covenant, which, if reasonable, is valid. See RESTRAINT OF TRADE.
The question has been much discussed whether good will is an incident of the business, of the premises, or of the person. It has been held in the case of a stand in a public market to be personal and not local ; Succession of Journe, 21 La. Ann, 391; 25 L. J. N. S. 194 ; but it is said to be the gen eral rule that the good will is an incident of the premises; Appeal of Elliot, 60 Pa. 161; Mitchell v. Read, 84 N. Y. 556 ; Bergamini v. Bastian, 35 La. Ann. 60, 48 Am. Rep. 216 ; and a devise of real estate, on which a busi ness is located, and its stock and equipment passed the good will as an incident ; Brad bury v. Wells, 138 Ia. 673, 115 N. W. 880, 16 L. R. A. (N. S.) 240; or, at least, the good will of a newspaper is not to be treated as of value apart from the plant and ownership of the business itself; Seabrook v. Grimes, 107 Md. 410, 68 Atl. 883, 16 L. R. A. (N. S.) 483, 126 Am. St. Rep. 400; but where a wid ow carried on the business of a licensed victualler on leased premises and assigned all her goods, stock in trade, etc., without mentioning the good will, In trust prior to her second marriage, the good will passed by the assignment as an incident to the stock and license, and not to the husband with the premises ; 6 Beay. 269. It is said that good will is only • an incident, as connected with a going concern, of business having lo cality or name, and is not susceptible of be ing disposed of independently ; Metropolitan Nat. Bank v. Despatch Co., 149 U. S. 436, 13 Sup. Ct. 944, 37 L. Ed. 799. See Metropol itan Nat. Bank v. Despatch Co., 36 Fed. 722. So in [1901] A. C. 217, holding that the statu tory phrase "property locally outside of the United Kingdom" may include good will, aft er premising that the term is difficult to de fine, the court said that it is property that has no independent existence, "it must be at tached to a business" and "the attribute of locality" is involved in it.
To this variety of expressions may be add ed the decision of a federal court that good will is property and may have an independ ent value without reference to tangible prop erty or locality, and stock of a corporation may be issued for it; Washburn v. Wall Pa per Co., 81 Fed. 17, 26 C. C. A. 312 ; and in New York it was held that the good will of a business may be sold where no material "plant" is involved in the transaction ; Brett v. Ebel, 29 App. Div. 256, 51 N. Y. Supp. 573 ; or where the calling is one which is followed without a business plant; Wood v. White
head Bros. Co., 165 N. Y. 545, 59 N. E. 357.
As between partners, it has been held that the good will of a partnership trade survives ; 5 Ves. 539; but this appears to be doubtful; 15 Ves. 227; and is not in accord with modern authorities ; 27 Beay. 446. A distinction in this respect has been suggested between commercial and profes sional partnerships; 3 Madd. 79; 2 De G. & J. 626 ; but see 14 Am. L. Reg. N. S. 10, where the distinction is said to be untenable. It has been held that the firm name con stitutes a part of the good will of a partner ship ; 6 Hare 325 ; contra, Howe v. Searing, 19 How Pr. (N. Y.) 14. Where a partner sells out his share in a going concern, he is presumed to include the good will ; Johns. (Eng. Ch.) 174; certainly so where he ac quiesces in the retention of the old place of business, and its future conduct by the other partners under the old name ; Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526 ; and he cannot use the firm name in a business of like character carried on by him in the vicinity ; Brass & Iron Works Co. v. Payne, 50 Ohio St. 115, 33 N. E. 88, 19 L. R.
A. 82; or a name so similar to that of the first as to mislead and draw off business ; Myers v. Buggy Co., 54 Mich. 215, 19 N. W. 961, 20 N. W. 545, 52 Am. Rep. 811. When a partnership is dissolved by death, bankrupt cy, or otherwise, the good will is an asset of the firm, and should be sold and the pro ceeds distributed among the partners ; 15 Ves. 218 ; Holden's Adm'rs v. McMakin, 1 Pars. Eq. Cas. (Pa.) 270. In such case the sale of the good will may include the right to use the old firm name which is inseparable from it and part of the assets ; Slater v. Slater, 175 N. Y. 143, 67 N. E. 224, 61 L. R. A. 796, 96 Am. St. Rep. 605; Snyder Mfg. Co. v. Snyder, 54 Ohio St. 86, 43 N. E. 325, 31 L. R. A. 657 ; though in New York it had been earlier decided otherwise ; Mason v. Dawson, 15 Misc. 595, 37 N. Y. Supp. 90; but in this case the question did not arise in a precisely similar manner. On the death of a partner the good will does not go to the survivor, unless by express agreement ; 22 Beay. 84; 26 L. J. N. S. 391. It has been held, however, that on the dissolution of a partnership by the death of one of its mem bers, the surviving partners may carry on the same line of business, at the same place, without liability to account to the legal rep resentative of the deceased partner for the good will of the firm, in the absence of their own agreement to the contrary ; Lobeck v. Hardware Co., 37 Neb. 158, 55 N. W. 650, 23 L. R. A. 795. And where on the death of a partner the business was sold to a corpora tion organized to carry it on, there remained nothing to be accounted for to the estate of the deceased partner, the good will passing with the property under the sale ; Didlake v. Roden Grocery, 160 Ala. 484, 49 South. 384, 22 L. R. A. (N. S.) 907, 18 Ann. Cas. 430. The dissolution of the firm during the life time of all the partners gives each of them the right to use the firm name; 34 Beay. 566; contra, Williams v. Wilson, 4 Sandf. Ch. (N. Y.) 379; 35 Am. Rep. 546 note.