The good will of a trade or business is a valuable right of property ; Senter v. Davis, 38 Cal. 450; 10 Exch. 147; Howard v. Tay lor, 90 Ala. 244, 8 South. 36 ; 2 Ves. & B. 218; 16 Marv. L. R. 135; it is an asset of the business; Wallingford v. Burr, 17 Neb. 137, 22 N. W. 350; or of partnership ; 27 Beay. 456 ; or of a corporation; Washburn v. Paper Co., 81 Fed. 17, 26 C. C. A. 312 ; or of a decedent ; Succession of Journe, 21 La. Ann. 391; but it does not include the use of the name of a deceased person, though the good will of the business is an asset to be accounted for ; In re Randell's Estate, 2 Cow. Surr. 29, 8 N. Y. Supp. 652. It may be bequeathed by will; 27 Beay. 446. It may be sold like other personal property ; see 3 Mer. 452; 1 J. & W. 589 ; 2 B. & Ad. 341; McFarland v. Stewart, 2 Watts (Pa.) 111, 26 Am. Dec. 109; 1 S. & S. 74 ; Car ruthers & Murray v. McMurray, 75 Ia. 173, 39 N. W. 255; Appeal of Musselmau, 62 Pa. 81, 1 Am. Rep. 382.
The good will of a liquor business is an asset to be sold with fixtures and the un expired term of the lease; Asehenbach v.
Carey, 224 Pa. 303, 73 Atl. 435. The right to use a name on a medicine may be assigned to an outgoing partner or to a successor in business, as an incident to its good will ; Brown Chemical Co. v. Meyer, 139 U. S. 540, 11 Sup. Ct. 625, 35 L. Ed. 247. In the United States the subject of good will has in the original technical sense less relative prom inence than in England, but the subject has developed very great importance in connec tion with the use of trademarks and trade names, which titles see.
A good will may be mortgaged, assigned, or taken in execution, in connection with the business ; id.; 39 L. J. Ch. N. S. 79; and passes under a general description in a mort gage 'of a newspaper plant ; Vinall v. Hen dricks, 33 Ind. App. 413, 71 N. E. 682, or a lease; Lane v. Smythe, 46 N. J. Eq. 443, 19 Atl. 199; or a conditional sale of one ; Boon v. Moss, 70 N. Y. 465 ; but not if dependent on the ability and skill of the proprietor; 25 Ch. D. 472 ; Slack v. Suddoth, 102 Tenn. 375, 52 S. W. 180, 45 L. R. A. 589; 73 Am. St. Rep. 881; or not necessarily connected with the establishment itself ; MacMartin v. Stevens, 27 Wash, 616, 79 Pac. 1099.
The good will passes under a general as signment for the benefit of creditors, though not specifically mentioned; Lothrop Pub. Co. v. Lothrop, Lee & Shepard Co., 191 Mass.1 353, 77 N. E. 841, 5 L. R. A. (N. S.) 1077 ;1 Iowa Seed Co. v. Dorr, 70 la. 481, 30 N. W. 866, 59 Am. Rep. 446; Wilmer v. Thomas, 74 Md. 485, 22 Atl. 403, 13 L. R. A. 380; Hegeman v. Hegeman, 8 Daly (N. Y.) 1; Bank of Tomah v. Warren, 94 Wis. 151, 68
N. W. 549; but although the good will pass ed, the members of the assigning firm could afterwards use trademarks consisting of words and pictures, to such limited extent as not to impair the good will of the business in the hands of the receiver ; Fish Bros. Wagon Co. v. Wagon Works, 82 Wis. 546, 52 N. W. 595, 16 L. R. A. 453, 33 Am. St. Rep. 72. The vendor of a business• and good will who stip ulates against carrying on tho business in the same place, may be enjoined from doing so as the agent of another ; Emery v. Brad ley, 88 Me. 357, 34 Atl. 167; but individual stockholders are not bound by a contract for the sale of the good will of a corporation, al though as agents of the latter they sold the business ; Hall's Safe Co. v. Safe Co., 146 Fed. 37, 76 C. C. A. 495, 14 L. R. A. (N. S.) 1182; The purchaser who finds there is no good will is without remedy unless he can show fraudulent representation or suppres sion of fact by the vendor ; Johnson v. Fried- I hoff, 7 Misc. Rep. 484, 27 N. Y. Supp. 982.
The purchaser of a good will and firm name is entitled to ,receive letters and tele grams addressed to it and to the advantage of business propositions from customers of the old firm contained in them ; J. G. Mat tingly Co. v. Mattingly, 96 Ky. 430, 27 S. W. 985.
r The measure of damages for the breach of a contract of sale of good will is the suffered by the vendee, not the profits made by the vendor; Gregory v. Spieker, 110 Cal. 150, 42 Pac. 576, 52 Am. St. Rep. 70.
English courts have adopted an arbitrary rule of limiting the value of good will 'to one year's purchase of the net annual profits, calculated on an average of three years ; 28 Beay. 453 ; or that three years' net profits represents the value of good will ; 75 L. T. Rep. 371; but it was said that American courts had not adopted it ; Von Au v. Mogen heimer, 115 App. Div. 84, 100 N. Y. Supp. 659, where an attempt was made to prescribe a rule for ascertaining the value of a good will by multiplying the average annual net profits for a suitable number of' years with refer ence to the business. It would seem, how ever, difficult to deal with the question of value, where it arises, otherwise than to leave it to be determined as other matters of fact. See 20 Harv. L. Rev. 235. In estimat ing its value it is proper to consider the con tinued use of the firm name as an element; Moore v. Rawson, 199 Mass. 493, 85 N. E. 586.
See, generally, 14 Am. L. Reg. N. S. 1, 329, 649, 713 ; 33 id. 216; 30 Cent. L. J. 155 ; 34 Sol. J. 294; Lindl. Partn. Wentworth's ed. 440-9; Allan, Law of Goodwill.