author: Spear, J.

text:
    The Cincinnati, Hamilton & Dayton Railroad Co. v. Bank.

      Negotiable paper — Bank check — Holder cannot maintain action against the bank.

    An action cannot be maintained against a bank by the holder of a check for refusal to pay it unless the check has been accepted, although there stands to the credit of the drawer .on the books of the bank a sum more than sufficient to meet the check.
    (Decided January 21, 1896.)
    Error to the Superior Court of Cincinnati.
    The action below was by the plaintiff in error against the defendant in error to recover on a bank check. The petition was in words and figures following:
    “The plaintiff is a corporation duly organized and existing under the laws of the state of Ohio. The defendant is a corporation duly organized and • existing under the laws of the United States.
    ‘ ‘There is due to the plaintiff from the defendant, upon the check a copy of which, there being no credits nor endorsments thereon, is hereto attached, made part hereof, and marked “Exhibit A,” the sum of three hundred and thirty-eight 31-100 dollars ($338.31), with interest from May 11, 1886. The plaintiff is the owner and holder of said cheek, and on May 11, 1886, presented it for payment to the defendant, who at that time, and at the time of the drawing of said check, had-funds of said J. E. Ash on deposit, more than sufficient to pay the same, but the defendant refused to pay said check.
    “Wherefore the plaintiff prays judgment against the defendant for said sum of $338.31, with interest from May 11, 1886, for its costs, and all other relief to which it may be entitled.-
    “EXHIBIT ‘A.’
    Cnsrcnsnsrati, May 10, 1886.

      “Metropolitan National Bank :

    “Pay to the order of C. H. & D. R. R. Co., three hundred and thirty-eight 31-100 dollars.
    “$338.31 (Signed) J. E. Ash.” .
    A general demurrer was interposed by the bank, and the holding of the superior court at general term was, in effect, to sustain the demurrer. Judgment for the bank followed, to reverse which the present proceeding is prosecuted.
    Ramsey, Maxwell <& Ramsey, for plaintiff in error.
    The single question presented for adjudication is, whether, in Ohio, the payee of a check can maintain an action upon it against the bank which wrongfully refuses to pay it. The right of action was denied by the general term upon the ground that no privity of contract exists between the holder of a check and the bank upon which it is drawn, and, therefore, that no right of action exists in the holder against the bank, until the bank has accepted the check. 27 W. L. B., 105; Covert v. Rhodes, 48 Ohio St., 66; the latter ease upsets the rule established in McGregor v. Loomis, 1 Disney, 247.
    The case of Covert v. Rhodes does not decide that an action may not, under any circumstances, be maintained against a bank by the payee of an unaccepted cheek, but simply that the drawer may revoke the check by notice to the bank prior to its presentation. Morrison v. Bailey, 5 Ohio St., 13; Stewart v. Smith, 17 Ohio St., 82 ; Kahn v. Walton, 46 Ohio St., 195.
    All the authorities agree that the implied contract of a banker with his depositor is to pay the depositor’s checks when presented. It is a breach of this implied contract, and a clear wrong, for the banker to refuse .to pay, when there are funds on deposit applicable to the check ; but it is said that the payee of the check can not complain nor maintain an action for breach of this contract, because he is not a party'to the. contract, but a third-party, between whom and the bank there is no privity of contract.
    This is a good objection to the action in those states which deny the right of a third party, for whose benefit a contract is made, to maintain an action upon it. All the cases cited by opposite counsel proceed upon this ground. Carr v. National Security Bank, 107 Mass., 45. In England the doctrine is carried to great extremes. Wald’s Pollock on Contracts, 204.
    But in Ohio the objection of want of privity cannot prevail, for it is the settled law of this state, contrary to the rule in England, in Massachusetts, and in the supreme court of the United States, that a third person for whose benefit a contract is made may maintain an action at law upon it. Thompson v. Thompson, 4 Ohio St., 333; Bagalay v. Waters, 7 Ohio St., 367; Trimble v. Strother, 25 Ohio St., 381; Brewer v. Maurer, 38 Ohio St., 543; Emmitt v. Brophy, 42 Ohio St., 82.
    It is true, as held in several of these cases, that the third, person’s right of action is lost if the original parties revoke the contract before the third party gives notice of his rights. And the case of Covert v. Rhodes is but the logical application of this doctrine to the case of a check revoked before presentation. Munn v. Burch, 25 Ill., 35; Insurance Co. v. Stanford, 28 Ill., 168; Bank v. Bank, 80 Ill., 212; Roberts v. Corbin & Co., 26 Iowa, 315; Lester v. Given, 8 Bush., 358; Gordon v. Muchler, 34 La. Ann., 608; Fonner v. Smith, 47 N. Y. Rep., 632; Fogartie v. State Bank, 12 Rich. Law, 518; Daniel on Negotiable Instruments, volume 2, section 1638.
    Many of the cases cited ag’ainst us hold merely, as was held in Covert v. Rhodes, that an action does not lie where the check has been countermanded before presentation. They are not authorities against the right to sue where there has been a wrongful refusal to pay, as at bar.

      Pogue, Pottenger & Pogue, for defendant in error.
    The payee of a check cannot maintain an action on it against the drawee, the bank, when the bank refuses to accept it. From the time of the earliest opinion expressed by Judges Storer and Spencer in McGregor v. Loomis, 1 Disney, 247 (1856), up to the present day, tlie views of many of the courts of our country have changed on this question of the right of the payee of a check to sue the drawee of a cheek who refuses to accept it, though he may have sufficient funds to pay it, and nearly every court of last resort in the United States and England which has passed upon this question for the first time since the decision on Bank of Republic v. Millard, 10 Wall., 152 (1869), has said that the payee has no . right to sue the drawee on failure to accept either at law or in equity. Covert v. Rhodes, 48 Ohio St., 66; Bank v. C. H. & D. R. R. Co., 27 W. L. B., 105; Bank of Washington v. Whitman, 94 U. S., 343; Laclede Bank v. Schuler, 120 U. S., 514; Florence Mfg. Co. v. Brown, 124 U. S., 391; Essex v. Bank, 7 Biss., 195 (U. S. Circ. Ct. Northern District Ill.); Dykers v. Leather Mfg. Co., 11 Paige, 616; Bank v. Bank, 46 N. Y., 82; Attorney General v. Life Ins. Co., 71 N. Y., 325; Risley v. Bank, 83 N. Y., 318; Ballard v. Randall, 67 Mass., 605; Carr v. Bank, 107 Mass., 48; Jermyn v. Maffitt, 75 Pa. St., 399; Saylor v. Bushong, 100 Pa. St., 23; Kuhn v. Bank, 11 Atl. Rep., 440; Bank v. Shoemaker, 117 Pa. St., 94, 101; Creveling v. Bank, 46 N. J. Law, 255; Moses v. Bank, 44 Md., 580; Purcell v. Allemong, 22 Grat., 742; Harrison v. Wright et al., 100 Ind., 538.
    This latter case is an exhaustive review of all the decisions on this question and was argued bysomeof the most prominent legal counsel of the day. Bank v. Williams, 13 Mich., 283; Grammel v. Carmer, 55 Mich., 201; Brennan v. Bank, 62 Mich., 343; Bank v. Coates, 17 Missouri, Rep., 17; Bush v. Foote, 58 Miss., 5; Bank v. Merritt, 7 Heisk., 177; Pickle v. Muse, 88 Tenn., 380; Cuchman v. Harrison, 90 Cal., 297: Boettcher v. Bank, 24 Pac. Rep., 582; Satter white v. Melezer, 24 Pac. Rep., 184; Hopkins v. Foerster, L. R. 19 Eq., 74.
    It is argued by counsel for plaintiff in error that the supreme court of the United States, maintaining the distinction between courts of law and courts of equity, has decided the proposition advanced, “that the payee of a check cannot sue the drawee for failure to accept a check, though he may have sufficient funds of the drawer to pay it — only as to an action at lato, that it has not decided that he can not maintain an action in equity. ”
    • An examination of authorities from other states which make no distinction between a legal and an equitable interest as our state does, and also of states and courts where the question has arisen, both in courts of law and equity, shows there is neither a legal nor an equitable interest in the payee which entitles him to sue the bank, the' drawee, and we refer to:

      Bank v. Bank. 46 N. Y., 82; Risley v. Bank, 82 N. Y., 318; Bank v. Shoemaker, 117 Pa. St., 94; Carr v. Bank, 107 Mass., 48; Ames on Bills and Notes, vol. 2, 735.
    Again it is argued by counsel for plaintiff in error that all the cases cited by opposing counsel proceed upon the ground that in those states which deny the right of a payee of a check to sue the drawee of a check on his refusal to accept a check, also deny the right of a third party, for whose benefit a contract is made, to maintain an action upon it, and for this latter reason a payee of a check cannot sue the drawee.
    To refute the statement of plaintiff’s counsel, we refer to decisions from the same states. Lawrence v. Fox, 20. N. Y., 268.

      Where one person makes a promise to another for the benefit of a third person, that third person may maintain an action on it. Burr v. Beers. 24 N. Y., 178; Campbell v. Smith, 71 N. Y., 28; Coster v. Albany, 43 N. Y., 411.
    Nor need the third person be privy to the consideration. Pike v. Brown, 61 Mass., 133; Mellin v. Whipple, 67 Mass., 317; Crawford v. Edwards, 33 Mich., 354; Miller v. Thompson, 34 Mich., 10; Merriman v. Moore, 90 Pa. St., 80; Huyler v. Atwood, 26 N. J. Eq., 504; Heim v. Vogal, 69 Mo., 529; Fitzgerald v. Baker, 70 Mo., 685; Bassett v. Bradley, 48 Conn., 225; Day v. Patterson, 18 Ind., 114; Deval v. McIntosh, 23 Ind., 529; Cross v. Truesdale, 28 Ind., 45; Brice v. King, 1 Head, 153; Moore v. Storall, 2 Lea, 543; Thompson v. Thompson, 2 Lea, 127: O’Neal v. County, 27 Md., 227; Green v. Morris, 5 Col., 18; Hutchinson v. Simon, 57 Miss., 628.
   Spear, J.

The question presented is whether or not a payee of a bank check can maintain an action against the bank, where the latter, on presentation, refuses to pay it, the drawer having at the time a credit on the books of the bank more than sufficient to meet the cheek?

Questions bearing some relation to this have been considered by this court, but the precise question has not heretofore been determined.

Authority is found supporting’ the affirmative of this proposition. The grounds' urged are not identical in all cases, nor is the reasoning wholly consistent, but the following is believed to be a fair resume of the conclusions: Because of the universal usage of banks to cash the checks drawn by a depositor, where he has sufficient unincumbered balance standing to his credit, a duty is implied on the part of the bank to so pay, and the holder takes the check relying upon this usage. Serious injury may result to the holder by the bank’s refusal to' pay, for, while he may have an action against the drawer, that would prove delusive in the frequent instance of the drawer’s insolvency, and the bank’s wrongful action would be the real cause of the loss. The law, therefore, implies a contract on the part of the bank with its depositors to pay their checks as presented so long as the fund is sufficient, and should, for like reasons, imply a contract with whomever may become the holder of such cheek to pay on presentation. The check is treated as an equitable assignment pro tanto of the fund in the hands of the bank, and, by the act of presentation the check-holder is brought in privity with the bank, his right to sue completed, and he may sue the drawer and the bank in one action, the former as drawer and the latter as an implied acceptor. He may also sue the drawer on the check’s dishonor, or the bank for money had and received.

Forcible and ingenious arguments in support of the right to maintain the action are presented by Mr. Morse, in his valuable work on Banking, by Mr. Daniels in his treatise on Negotiable Instruments, vol. 2, section 1638, where the arguments pro and con are stated and ably reviewed, and by a number of decisions, some of which áre the following: Munn v. Burch, 25 Ill., 35; Ins. Co. v. Stanford, 28 Ill., 168; Bank v. Bank, 80 Ill., 212 (but see opinion in Bank v. Bank, 7 Bissell, U. S., 195); Roberts v. Corbin, 26 Iowa, 315 Lester v. Given, 8 Bush, 358; Fogarties v. Bank, 12 South Carolina, 518 ; Gordon v. Muchler, 34 La. Ann., 608; Fonner v. Smith, 31 Neb., 107.

The contrary doctrine is maintained by many text writers and decisions. Following are some of the authorities: -Randolph on Commercial Paper, vol. 2, p. 280; Pomeroy’s Equity Jurisprudence, section 1284 ; Van Schaack on Bank Checks, 212; Bank v. Millard, 10 Wallace, 152; Bank v. Whitman, 94 U. S., 343; Bank v. Schuler, 120 U. S., 514; Mining Co. v. Brown, 124 U. S., 391; Bank v. Bank, 46 N. Y., 82; Attorney-General v. Ins. Co., 71 N. Y., 325; Bullard v. Randall, 67 Mass., 605; Carr v. Bank, 107 Mass., 48; Saylor v. Bushong, 100 Pa., St., 23; Kuhn v. Bank, 11 Atl. Rep. (Pa.), 440; Bank v. Shoemaker, 117 Pa. St., 94; Creveling v. Bank, 46 N. J., Law, 255; Moses v. Bank, 34 Md., 580; Purcell v, Allemong, 22 Grat., 742; Harrison v. Wright, 100 Ind., 538; Grammel v. Carmer, 55 Mich., 201; Brennan v. Bank, 62 Mich., 343; Bush v. Foote, 58 Miss., 5; Bank v. Merritt, 7 Heisk, 177; Pickle v. Muse, 88 Tenn., 380; Cashman v. Harrison, 90 Cal., 297; Boettcher v. Bank, 15 Col., 16; Satterwhite v. Melczer, 24 Pac. Rep. (Arizona), 184; Hopkins v. Forester, L. R. Eq., 74; Wald’s Pollock on Contracts, 190, 204; 2 Ames’ Bills and Notes, 735.

It is not doubted that, as a general proposition, there can be no cause of action upon a contract unless there is privity of contract between the obligor and the party complaining. But it is urged in argument here that while the want of privity is a good objection to the action in those states which deny the right of a third party for whose benefit a contract is made to maintain an action upon it, in Ohio the objection of want of privity cannot prevail for the reason, as held bjr this court in a number of cases, that an agreement made on a valid consideration by one person with another, to pay money to a third, can be enforced by the latter in his own name, and that the third person is not named does not affect the right to enforce it. The most recent case involving this principle is that of Emmitt v. Brophy, 42 Ohio St., 82. The action was upon a bond given by Emmitt to the county commissioners in the sale of a bridge by the Scioto Bridge Co., in which Emmitt obligated himself “to pay off and liquidate all claims and demands, whether in judgment or otherwise, existing against said bridge, so that the full use of said bridge may enure to the public without let or hindrance. ’ ’ Brophy at the time was a judgment creditor and the owner of all of the claims enumerated in the bond. Owen J., in the opinion, after reciting the facts, observes : “These facts are strongly suggestive that it entered into the contemplation of the parties to this bond at the time of its execution, that this particular lien of the plaintiff upon the bridge was to be ' discharged by Emmitt. Its existence was known to them, and they seem to have left nothing to conjecture. Indeed, if Brophy and Potter had been expressly named as the lien-holders, it is difficult to see how this would have added to the definiteness of the bond, or made more certain the intention of the parties. This seems *to be a conclusive answer to the suggestion that there is want of privity.”

No one of the cases cited carries the doctrine farther than the foregoing. In no one of them is it held that a right to sue in a stranger can be raised by mere implication. No where is it held that the obligation will attach in favor of future creditors not named and not known, and as to amounts not specified or then ascertainable, to the extent of giving to such creditors a right of action on the contract. It must be apparent, even on brief reflection, that it does not follow from these decisions that there is privity between check-holder and bank before acceptance, and that in order to cover the case at bar a marked extension of the doctrine must be made. Reasons urged for such extension, however plausible, do not seem sufficient.

On the contrary, strong reasons against the proposition may be adduced, among others, this: The transaction of giving the check does not, as will be shown further on, substitute the check-holder for the drawer. The latter may maintain an action for the breach of the contract to honor his check, and if the holder has a similar right, the result is that two persons may maintain separate actions upon the same instrument at the samé time to recover against the same defendant as a principal debtor. The inference that the right to recover by the check-holder is denied only in the states where a right of recovery is refused to one for whose benefit a contract is made by another, arises from a misapprehension of the authorities. In many states where the right of a check-holder to sue the bank is not assented to, the right of one for whose benefit* a contract is made to recover upon it is recognized. See Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 N. Y., 178; Coster v. The Mayor, 43 N. Y., 399; Merriman v. Moore, 90 Pa. St., 78; Huyler v. Atwood, 26 N. J. Eq., 504; O'Neal v. Commissioners, 27 Md., 240; Crawford v. Edwards, 33 Mich., 354; Miller v. Thompson, 34 Ib., 10; Heim, v. Vogel, 69 Mo., 529; Fitzgerald v. Baker, 70 Ib., 685; Cross v. Truesdale, 28 Ind., 44 ; Brice v. King, 1 Head’s (Tenn.), 152; Greeny. Morrison, 5 Col.,. 18.

It is insisted that the ease should not turn alone on the legal idea of privity, for, under our system of procedure, it is immaterial whether the interest of the paj^ee against the hank is legal or equitable, and that the action here may be maintained on equitable grounds. In a well-considered case, Covert v. Rhodes, 48 Ohio St., 66, this court held that ‘ ‘a bank check or draft for a part of the sum due the drawer, does not, before acceptance by the drawee, constitute an equitable assignment of the amount for which-it is drawn.” The conclusion is amply sustained by the reasoning’ of the opinion, and no discussion is necessary. If there is no equitable assignment of the debt pro tcmto, how can equitable considerations prevail? The proceeding is not an equitable one; and .if it were, we do not understand that equity has different rules from thosé of law with respect to the rights and obligations of parties to negotiable paper. As applicable to such case we believe that reason, and the great preponderance, of authority,- establish the following conclusions : The relations of bank and general depositor is simply the ordinary one of debtor and creditor, not of agent and principal, or trustee and cestui que trust. The bank agrees with its depositor to receive his deposits, to account with him for the amount, to repay to him on demand, and to honor his checks to the amount of his credit when the checks are presented; and for any breach of that agreement the bank is liable to an action by him. The deposits become the absolute property of the bank, impressed with no trust, and the bank’s right to use the money for its own benefit is immediate and continuous, which right constitutes the consideration for the bank’s promise to the depositor. The bank’s agreement with the depositor involves or implies no agreement with the holder of a check. The giving of a check is not an assignment of so much of the creditor’s claim; it passes no title, legal or equitable, to the holder in the moneys previously deposited, nor ■ does it create a lien on the fund, for there is no special fund out of which the check can.be paid, nor does it transfer any money to the credit of the holder ; it is simply an order which may be countermanded and payment forbidden by the drawer any time before it is actually cashed or accepted. If accepted, then the agreement is to pay according to the terms of the check or acceptance; but until then the payee looks exclusively to the drawer. He can maintain no action against the bank, for the bank owes to the payee no legal duty, and an action at law cannot be maintained except there is shown to have been a failure in the performance of 'legal duty. Being liable to the drawer to account with him for failure to honor his check, the bank cannot, either on legal or equitable considerations, be held at the same time liable to the holder of the check.

Tested by these rules, the plaintiff could have, no cause of action against the bank, and the superior court committed no error in the judgment rendered.

Judgment affi/rmed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Letts v. Kessler.

      Property rights — Slmiting off light and air from neighbor’s window — Motives of malice — Action to compel removal of fence— Law and eqtuty.

    L. and K. owned adjoining lots, and L. erected on his lot a board fence reaching to the roof of K’s house which stood on the line of the two lots, which fence shut off light and air from the windows of the house of K. to its injury, which fence was so erected by L. for no useful or ornamental purpose, but from motives of unmixed malice toward K. In an action by K. against L. to compel the removal of the fence, Held: That L. had a legal right to erect and maintain such fence, and that neither law nor equity could compel its removal.
    [Decided January 21, 1896.]
    ■ Error to the Circuit Court of Cuyahoga county.
    The plaintiff below, defendant in error here, filed her petition in the court of common pleas against defendant below, plaintiff in error here, averringthat she was the owner by purchase under a land contract of certain premises in the city of Cleveland, that defendant owned and occupied the lot on the east side thereof, that she used her premises as a hotel and boarding house, that he was erecting a high board fence on his ground which would obstruct her windows and deprive her of light and air, that said fence was not being erected for any useful or ornamental purpose, but from motives of pure malice alone, and for the express malicious purpose of annoying plaintiff, and excluding light and air from her house so as to render her house uninhabitable, to injure the value thereof, and that said fence would exclude the light and air.and thereby greatly injure the value of her house. She prayed that he might be restrained from completing said fence, and that upon the final hearing a mandatory injunction might compel its removal.
    Defendant below demurred to this petition, and the demurrer was overruled and exceptions taken. The ruling upon this demurrer is reported in 7 Circuit Court Rep., 108.
    He then filed an answer in substance a general denial, with an averment that the fence was erected • to prevent the rush of water and eve drip from her premises onto his. This she denied in her reply. The case went to the circuit court on appeal, and that court overruled the demurrer, and on the trial made a finding- of facts containing- in substance the allegations of the petition. The following is the finding- of facts and the judgment:
    “This cause came on to be heard upon the petition of the plaintiff, the answer of defendant, the reply of the plaintiff thereto, and the testimony, and the court being requested by the defendant to make a finding of facts in the case find the conclusions of fact as follows: That the plaintiff owns and occupies premises, situated on Lake street, in the city of Cleveland, known as “The Osborn,” and said plaintiff owned and occupied said premises at the time of the erection of the structure hereinafter described. Said premises were used by plaintiff as a boarding house. Defendant owns and occupies premises adjoining-plaintiff on the east. Between the two houses is a driveway and open space about twenty feet wide. Plaintiff and defendant had litigation in May, 1891, on account of defendant’s having attached a shed roof to her building without consent of said plaintiff. About two weeks after the trial of said lawsuit, the defendant took down said shed roof, and built up against the house of said plaintiff a tight board fence. The said fence was eighty-six feet long. The scantlings were placed against the wall of said plaintiff’s house and reached up under the eves of the same. Boards were, nailed onto the said scant-lings, beginning about two feet from the ground and extending to the sills of the second story windows. Defendant nailed onto the rear portion of said fence and extending about forty feet toward the front, a shed roof. Under this shed roof defendant had lumber piled. Said board fence completely covered up the bath room, kitchen, bed room and library windows, rendering said portion of the house dark, damp and uninhabitable, and causing substantial damage to the same. Said structure was erected upon the land of the defendant and belonged to him. The structure was erected by said defendant from motives of unmixed malice toward said plaintiff and for no useful or ornamental purposes of the property of said defendant, except said shed roof and its back wall below the shed roof, which may subserve some useful purpose of defendant, in the use of his property by protecting his lumber pile thereunder. The court, upon the foregoing facts, finds and decrees that said defendant be and is hereby enjoined from proceeding further with the erection of said fence. Adjudged and decreed that said defendant, within twenty days from the entering of this decree, take down all of said fence and scantling projecting above the roof of said shed, and all the remainder of said fence outside of and beyond said shed, and it is considered that the plaintiff recover her costs expended in the case, taxed at $-, and that the defendant pay his own costs, for which it is ordered that execution issue;, to all of which the defendant excepts.”

      A motion for a new trial was made, overruled and exceptions taken. Thereupon a petition in error was filed in this court to reverse the judgment of the circuit court.

      L. A. Willson and Edward David, for plaintiff in error. e
    ■ When we let down the bars and begin to inquire into men’s motives, we enter upon dangerous ground. The law is that the motive makes no difference. Frazier v. Brown, 12 Ohio St., 294. The act, to-wit, the use of his own property being lawful in itself, the motive with which the act was done is amatterof indifference. Mullen v. Stricker, 19 Ohio St., 134.
    An easement of light and air, to be supplied to one’s windows from the premises of another, cannot be acquired in Ohio, by use or prescription. Washburn on Easements, 2 ed. top p. 458 — star p. 380, chapter on rights in subterranean waters.
    We claim the fence in the ease at bar is not a nuisance. Falloon v. Schilling, 29 Kans., 289.
    If the improvement itself is legitimate and lawful, is not per se a nuisance, the law will not inquire into the motives with which he acts. It is true the law will interfere to prevent the erection of a nuisance such as a stable, outbuildings, etc., but not to prevent the erection of a store, tenement, or anything of that nature, even where the building may or may not become a nuisance, according to the manner in which it is used, the erection of the building will not be restrained. High, on Injunctions, section 438.
    We find no case in which a party seeking to place an improvement upon his own land, an improvement which will increase his income, which improvement is not a nuisance;, which, does not endanger the physical health or comfort of his neighbor, or disagreeable to such neighbor, that it does not correspond in character and kind with the improvement on such neighbor’s premises, that it will bring a different class of people socially into immediate proximity to his neighbor, and that all this was done or intended through spite against such neighbor. Mahan v. Brownis, 13 Wend., 261; Greenleaf v. Francis, 18 Pick., 123.
    It was a lawful act, and although it may have been prejudicial to the- plaintiff, it is damnum obseque injuria. Chatfield v. Wilson, 28 Vt., 49; Quintini v. Alderman, 60 Am. Rep., 62 Miss., 483.
    A private dwelling may not be declared a nuisance by authority of the legislature, simply because it may injure adjoining property by cutting off the breeze from, and view of the sea. Radcliff v. Mayor, etc., of Brooklyn, 52 Am. Dec., 359.
    But a man may do many things under lawful fj' authority, or in his own land, which may result in f an injury to the property of others, without being ¡¡ answerable for the consequences. Indeed, an act ; done under lawful authority, if done in a proper ‘ manner can never subject the party to an action, •whatever consequences may [follow. Nor will a man be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part. • The maxim: . “So use your own as not to injure another’s property,” extends only to legal .injuries, and does not condemn the darken-; ing of another’s windows, or depriving him of a,: prospect, by building on one’s own land, where no right has .been acquired by grant or prescription.
      Packard v. Collins, 23 Barb., 458; Piere v. Fernald, 46 Am. Dec., 573; Humphrey v. Douglass, 11 Vt., 22.
    Motive with which a lawful act is done, can never alter the character of such an act. The plaintiff’s testimony tended to prove that the defendant acted with improper motives. This can never alter the character of a lawful act. Whatever a man had a legal right to do, he may do with impunity, regardless of his improper motives. Pitts. Ft. W. & C. R. R. Co. v. Bingham, Admx., 29 Ohio St., 369.
    Where no right has been invaded, although one has been injured, no liability has been incurred, any other rule would be manifestly wrong. Mullen v. Stricker, 19 Ohio St., 135; Frazier v. Brown, 12 Ohio St., 311.

      C. J. Estep and 8. 8. Ford, for defendant in error.
    We do not insist that when a person is putting his property to some useful or ornamental purpose, however small, that we can inquire into his motives. The doctrine we desire to see established as the law of Ohio, is that a person cannot under cover of ownership of a piece of real estate, use that real estate for the purpose of erecting structures thereon, which subserve no useful nor ornamental purpose, and are erected through motives of unmixed malice towards his adjoining neighbor.
    It is true that plaintiff in error can find cases that hold that an act legal in itself, violating no legal right, cannot be made actionable even though it be prompted by malice and is prejudicial to his neighbor. But many courts have held that if one does an act, wholly on his own land, legal but prejudicial to his neighbor, not for his own ornament, but through unmixed malice to his neighbor, then he has done an injury which is actionable. 74 Me., 164; 7 House of Lords, 387; 18 Pick., 117; 25 Penn., 548; 20 Conn., 533; 29 Pa. St., 559.
    We also do not contend that in Ohio we can acquire by use or prescription, an easement in light and air to be supplied to one’s windows from the premises of another. A person in the proper use of his own premises, for use, ornament or other good purpose, may erect buildings or structures, up to his line, doing no unnecessary damage to his neighbor, even if it closes up his neighbor’s windows or darkens them. The doctrine we contend for is not inconsistent with the law as we concede it to be, when we assert that a man cannot, being actuated by malice alone, and with the purpose of annoying his neighbor, and rendering his property undesirable, and subserving no useful or ornamental purpose, erect a structure to close up his windows. Peck v. Bowman, 22 Law Bulletin, 111.
    The most instructive case on the subject under discussion,' and the one which sustains our position in every particular, is the case of Burke v. Smith, 25 Mich., 595. In that case the civil law recognizes the moral law, and does not permit the owner of land to do an act upon his own premises for the express purpose of injuring his neighbor when the act brings no profit or advantage to himself. The law furnished redress because the injury is malicious and unjustifiable. The moral law imposes upon every man the duty of doing unto others as he would that they should do unto him; and the common law ought to, and in our opinion does, require him to so use his own privileges and property as not to injure the rights of others maliciously and without necessity.
   Burket, J.

The only question in this case arises upon the following findings of fact by the circuit court:

“Said structure was erected upon the land of the defendant and belong-ed to him. The structure was erected by said defendant from motives of unmixed malice toward said plaintiff, and for no useful, or ornamental purposes of the property of said defendant.”

It is not claimed that the person' of the plaintiff was interfered with in this ease, so that we have for consideration only the rights of property.

The fence complained of is upon the land of the defendant and belongs to him. Plaintiff fails to aver, and the court fails to find, that she has any right to, or upon, the lot of defendant below by contract, statute, or any other way known to the law for acquiring a right to, in, or upon lands, unless such right may be acquired by, and transferred to her, by means of the aforesaid “motives of unmixed malice.” This is a manner of acquiring on the one hand, and of transferring on the other, a right to property unknown to the law. .

But it is urged in her behalf,, that even if she had no right of property, and even if he was the owner of the lot, that he could not use his own land for the purpose of erecting structures thereon which sub-serve no useful or ornamental purpose, and are erected through motives of unmixed malice towards his adjoining neighbor.

It is and must be conceded that he might, by erecting a building on his lot, shut off her light and air to exactly the same extent as is done by this fence, and that in such case she would be without right and without remedy, even though done with the same feelings of malice as induced him to erect the fence; thus making his acts lawful when the malice is seasoned with profit, or some show of profit to himself, and unlawful when his malice is unmixed with profit, the injury or inconvenience to her, meanwhile, remaining- the same in both cases. If through feelings of malice he desires to shut the light and air from her windows, it is nothing to her whether he makes a profit or loss thereby. Her injury is no greater and no less in the one case than in the other. As to her it is the effect of the act, and not the motive.

In effect he has the right to shut off the light and air from her windows by a building on his own premises; and she is not in effect concerned in'the means by which such effect is produced, whether by a building or other structure; nor is she concerned as to the motive, nor as to whether he makes or loses by the operation. In the one ease she might have a strong suspicion of' his malice, while in the other such suspicion would be ripened into a certainty. But this is nothing to hér as affecting- a property right. ■ As long as he keeps on his own property, and causes an effect on her property which he has a right to cause, she has no legal right to complain as to the manner in which the effect is produced, and to permit her to do so, would not be enforcing a right of property, but a rule of morals. It would be controlling and directing his moral conduct by a suit in équity, by an injunction.

To permit a man to cause a certain injurious effect upon the premises of his neighbor by the erection of a structure on his own premises if such-structure is beneficial or ornamental, and to prohibit him from causing the same effect in case the structure is neither beneficial nor ornamental, but erected from motives of pure malice, is not p rotecting a legal right, but is controlling his. mo ral conduct. In this state a man is free to direct his moral conduct as he pleases, in so far as he is not restrained by statute.

But it is said that such acts are offensive to the principles of equity. Not so. There is no conflict between law and equity in our practice, and what a man may lawfully do cannot be prohibited as inequitable. It may be immoral, and shock our notions of fairness, but what the law permits, equity tolerates. It would be much more inequitable and intolerable to allow a man’s neighbors to question his motives every time that he should undertake to erect a structure upon his own premises, and drag him before a court of equity to ascertain whether he is about to erect the structure for ornament or profit., or through motives of unmixed malice.

The ease is not like annoying a neighbor by means of causing smoke, gas, noisome smells, or noises to enter his premises, thereby causing’ injury. In such cases something is produced on one’s own premises and conveyed to the premises of another; but in this case nothing is sent, but the air and light are withheld. A man may be compelled to keep his gas, smoke, odors and noise at home, but he cannot be compelled to send his light and air abroad. Mullen v. Stricker, 19 Ohio St., 135.

If smoke, gas, offensive odors, or noise pass from one’s own premises to or upon the premises of another to his injury, an action will lie therefor, even .though the smoke, gas, odor or noise should be caused by the lawful business operations of defendant and with the best of motives. Broom’s Legal Maxims, 372.

In such cases it is the effect or injury, and not the motive, that is regarded. The true test is, whether anything recognized by law as injurious, passes from the premises of one neighbor to that of another. Anything so passing invades the legal rights of him whose premises it reaches, and such rights will be protected. But courts cannot regulate or control the moral conduct of a man, unless authorized so to do by statute.

The following eases, cited by plaintiff in error, bear more or less upon the question involved in this case, and.seem to produce a decided weight of authority in his favor: Frazier v. Brown, 12 Ohio St., 294; Falloon v. Schilling, 29 Kan., 292; Mahan v. Brown, 13 Wendall, 261; Greenleaf v. Francis, 18 Pick., 123; Chatfield v. Wilson, 28 Vt., 49.

The following additional authorities are to the same effect:

Gould on Waters, section 280, citing: Chasmore v. Richards, 7 H. L. Cas., 349; Dickinson v. G. F. Canal Co., 7 Exch., 282; Acton v. Blundell, 12 M. & W., 324; Hammond v. Hall, 10, Sim., 552; Cooper v. Barber, 3 Taunt., 99; Balston v. Bensted, 1 Camp., 463; Galgay v. G. S. R'y Co., 4 Ir. C. L., 456; Chase v. Silverstone, 62 Me., 175; Roath v. Driscoll, 20 Conn., 533; Brown v. Illius, 27 Conn., 84; O. G. C. M. Ass'n v. A. P. Com'rs, 40 N. J. Eq., 447; Taylor v. Fickas, 64 Ind., 167; Delhi v. Youmans, 45 N. Y., 362; Dexter v. Providence Aq. Co., 1 Story, 387; Wheatly v. Baugh, 25 Pa. St., 528; 64 Amer. Dec., 721, note; Hough’s App., 102 Pa. St., 442; 48 Amer. Rep., 193, note; Haldeman v. Bruckhart, 45 Pa. St., 514; Coleman v. Chadwick, 80 Pa. St., 81; Trout v. McDonald, 83 Pa. St., 144; Lybe's App., 106 Pa. St., 626; Smith v. Adams, 6 Paige, 435; Elster v. Springfield, 49 Ohio St., 82; Ellis v. Duncan, 29 N. Y., 466; Radcliff v. Brooklyn, 4 N. Y., 195, 200; Pixley v. Clark, 35 N. Y., 520; Goodale v. Tuttle, 29 N. Y., 466; Bliss v. Greeley, 45 N. Y., 671; Clark v. Conroe, 38 Vt., 469; Taylor v. Welch, 6 Ore., 198; Mosier v. Caldwell, 7 Nev., 363; N. A. R'y Co. v. Peterson, 14 Ind., 112; Bassett v. S. Mfg. Co., 43 N. H., 573; 30 Cent. L. Jour,, 269; 23 Amer. L, Rev., 376; Davis v. Afong, 5 Haw., 216.

The defendant in error cites the cases reviewed in Frazier v. Brown, 12 Ohio St., 294, and also the case of Burke v. Smith, 69 Mich., 380. Most of the eases cited are cases arising out of interference with wells, springs and percolating waters; such cases bear but slightly upon the question. ^ The Michigan ease is substantially like the case under consideration. In that case the lower court enjoined the defendant, and that judgment was affirmed by an equally divided court. The syllabus says that the court being equally divided, nothing is decided. As nothing was decided, the ease is not an authority on either side of the question.

But it is strongly urged by counsel for defendant in error, that the maxim, ‘ ‘Enjoy your own propperty in such a manner as not to injure that of another person, ” applies in such eases ás this, and that as it must be conceded that the fence in question is an injury to the property of defendant in error, that his acts are in conflict with the above maxim.

At first blush this would seem to be so, but a careful consideration shows the contrary. The maxim is a very old one, and states the law too broadly. In this case, for instance, it is conceded that the plaintiff in error had the right to enjoy his property by erecting a house so as to do the same injury which was done by the fence, and that while that • would be an injury to the property ox defendant in error, she would be without remedy, and Ms act in erecting such house would not be regarded as violating the maxim.

In Jeffries v. Williams, 5 Exch., 797, it was claimed, and in Railroad Company v. Bingham, 29 Ohio St., 369, it was held, that the true and legal meaning of the maxim is, “So use your own property as not to injure the rights of another.” Boynton, J., in that case says: “Where no right has been invaded, although one may have injured another, no liability has been incurred. Any other rule would be manifestly wrong. ’ ’ The maxim should be limited to causing injury to the rights of another, rather than to property of another, because for an injury to the rights of another there is always a remedy, but there may be injuries to the property of another for which there is no remedy, as in draining a spring or well, or cutting off light and air or a pleasant view by the erection of buildings, and many other cases which might be cited.

Thus limiting the maxim to the rights of the defendant in error, it is plain that the acts of plaintiff in error in the use which he 'made of his property did hot injure any legal right of hers, and that therefore what he did, was not in violation of such maxim.

The circuit court erred in overruling the demurrer to the petition, and in rendering judgment in favor of defendant in error upon the facts as found by the court. The judgment of the circuit court is therefore reversed, and proceedings to render such judgment as the circuit court should have rendered upon the facts found, the petition of plaintiff below is dismissed at her cost.

Judgment reversed. ■


author: Williams, J.

text:
    The Snyder Manufacturing Co. v. Snyder et al.

      Co-partnership — Dissolution of firm — Sale of property and assets— Transfer of good mill — Effect of subsequent sale by purchaser to corporation.

    1. Upon the dissolution of a trading co-partnership, its assets, including the good iyill of the business, may be sold as a whole, either by the partners directly, or through a receiver under an order of court in a case to which they are parties ; and a purchaser thereof, under either method of sale, is entitled to continue the business as the successor of the firm, and make use of the firm name for that purpose.
    2. Where the purchaser transfers the property so acquired by^ him, to a corporation of which he is a member, organized to succeed to the business, it may carry on the business in the same manner, under a corporate name including the name which had been used by the firm.
    (Decided January 21, 1896.)
    Error to the Circuit Court of Ashtabula county.
    Action to enjoin use of copartnership name by a corporation. Judgment for the plaintiff by the circuit court, to reverse which this proceeding in error is prosecuted. The case is stated in the opinion.

      Burke <& Ingersolls and A. A. Thayer, for plaintiff in error.
    We have no doubt that the case decided by this court and reported in 50 Ohio St., 115, Brass & Iron Works Co. v. Paine, is decisive of our contention.
    The decree of the court determines two things:
    1. The purchaser of such firm assets and good will has a right to use the name.
    2. The other partner ‘has no right to use such firm name.

      We would be willing to rest our contention upon this authority, but we venture to cite some other authorities not before the supreme court (or at least not cited by the court), in support of our contention. Hudson v. Osborn, L. J. 39 Equity, p. 79; Kerr on Inj., 457; Rogers et al. v. Taintor, 97 Mass., 291; Castwell v. Hasard et al., 121 N. Y., 485; Banks v. Gibson, 34 Beavan, 566.

      Theodore Hall and Dickey, Garr <& Goff, for defendants in error.
    For the defendants in error we maintain that there are three good and sufficient reasons why the decree of the circuit court was correct, and should not be reversed, namely:
    First — That if the term “good will” implies name, then under the contract of copartnership the Snyders contributed their good name to said copartnership business during the term agreed upon as a set-off to the use of Bradley’s plant; and had the same right at the expiration of said term by limitation, to withdraw their name as did said Bradley to withdraw his said plant.
    Second — That the court, in making the order for the sale of the assets, specifically refused to order a sale of the right to use the name ‘ ‘Snyder Manufacturing company.”
    Third — That there was no good will to sell for the reason that by the termination of the partnership bj7- limitation, whatever good will had been acquired by the copartnership during its existence, terminated, and each individual of said copartnership on said dissolution took with him whatever of said good will fell upon his shoulders.
    Now, as to these propositions, the first two are propositions of fact upon which we do not care to cite authorities, and as to the third one, namely, that’Said partnership had expired by limitation, and that there was no good will to sell, we call the court’s attention to the case of Holmes and others against Holmes and others, in the 37th Conn., page 287. Musselman & Clarkson’s Appeal, 66 Pa. St., 81; Wedderburn v. Wedderburn, 22 Bevan’s Rep., 84; Horton Manufacturing Co. v. Horton Manufacturing Co., 18 Fed. Rep., 816; Howe v. Searing, 10 Abbot’s Prac., 264.
    The plaintiff in error in its answer admits that its object in using the term “Snyder Manufacturing Company” and the word “Snyder,” is to gain any benefit that may be derived from the good reputation that name had acquired in the trade. And avers, at the same time, that there is no person by the name of Snyder connected with the corporation. This is practicing such a deception upon the public as courts of equity will not countenance. Morgan v. Schuyler, 79 N. Y., 490; Manhattan Medicine Co. v. Wood, 108 U. S., 218; McLean v. Fleming, 96 U. S., 245; Buckland v. Rice, 40 O. S., 526.
   Williams, J.

The action below was brought by Andrew G. Snyder and William A. Snyder, against the Snyder Manufacturing Company, to enjoin the use by the defendant, of the name Snyder Manufacturing Company, and especially the use of the word Snyder in that name. Certain averments of the petition are denied by the answer, and some allegations of the answer are controverted by reply; but the issues thus raised seem unimportant in the light of the facts admitted by the pleadings, which are, in substance, as follows: The plaintiffs, who are now, and for several years past have been engaged in business as manufacturers of certain kinds of goods at the city of Piqua, in this state, for many years before carried on the same kind of a business at Ashtabula, also in this state, and by their skill and attention to business established a valuable reputation in their business, which was carried on under the name of Snyder & Son. Then, on the 7th day of September, 1887, they, and two other persons formed a copartnership with W. H. Bradley who was the owner of a manufactory at Ashtabula, employed in the manufacture of goods similar to those made by the plaintiffs, for the purpose of combining the business of the parties and thereafter continuing the same as one concern. By the terms of the partnership agreement, Bradley was to, and did contribute one-half - of the capital, and in addition thereto, furnish the use of his manufactory without charge and expend at least three thousand dollars in putting the same in repair; as an offset to which the plaintiffs were to, and did put in the good will óf their business, and they and their two associates were to, and did contribute the other half of the capital and devote their time and skill to the manufacture of goods and the general manag-ement of the business of the partnership, Bradley not being required to give any time or attention thereto. This copartnership, which carried on its business under the firm name of “Snyder Manufacturing Company,” continued for a period of three years, acquiring under that name an extensive and profitable business and a good reputation; and at its termination, the parties being unable to effect a satisfactory settlement, the plaintiffs, to obtain a settlement of its affairs, commenced an action, in which a receiver was appointed at their instance, who took possession of the partnership effects, and afterwards, under an order of the court so directing him, sold the same, with the good will of the firm, at public sale. The order of sale contained an express provision that the purchaser should have the right to carry on the business as the successor of the firm, and was so made without objection from any of the partners, all of whom were parties to the action. The plaintiffs and Bradley were competing bidders at the sale, when the latter, bidding more than his competitors for the assets and good will of the firm, and being the highest bidder therefor, became the purchaser. The sale was duly confirmed by the court and the property transferred to Bradley, who shortly thereafter, with other persons, organized a corporation under the laws of this state, with the name of “The Snyder Manufacturing Company,” for the purpose of continuing the busines at the manufactory which had been operated by the firm, and the partnership effects and good will that Bradley had purchased were transferred with the manufacturing plant to the corporation, which has since, in its corporate name, been doing a business of like character to that formerly done by the copartnership, and claiming to be its successor. That manner of conducting its business by the corporation was enjoined by the judgment which it is sought here to have reversed; and whether there should be a reversal or not, it is conceded depends on the effect of Bradley’s purchase of the assets including the good will of the partnership, and their transfer by him to the defendant corporation. Did the defendant in that way acquire the right, to carry on a business in the name adopted by it, like that which had been done by the previously existirig- partnership, and as its successor? Without attempting- an accurate or exhaustive definition of the g-ood will of a business, it may be said that it practically consists of that favorable reputation it has established creating a disposition or inclination of persons to extend their patronage to the business on that account; and, as the business is always associated with the name under which it is conducted, the name becomes a part, and often an important part of its good will. The good will of a copartnership is regarded in law as property, constituting a part of its assets, and having a saleable value in connection with its tangible property, sometimes exceeding all its other assets, because of the advantag-es afforded a purchaser of retaining an established custom, and enlarging it. As a general rule, - when it becomes necessary to sell the partnership effects the good will should be valued and sold with, and as a part of them, and ordinarily it passes by a sale of them though not expressly mentioned.

It is well settled, that when a partner sells his interest in the business to a copartner, without a reservation or exception of the good will, the purchaser is not only entitled to continue the business in the name of the firm and as its successor, but he may prevent the selling partner or other person from carrying on business in that way; and no good reason is apparent why the same result should not attend a purchase of the entire assets and good will of the firm by one of the partners at a sale thereof made under an order of court in a proceeding to which the'partners were parties; especially if the sale be so made at their instance and for their benefit. Indeed, the authorities appear to go further and maintain that upon the dissolution of a copartnership, there being no agreement between its members to the contrary, the court having the parties before it may order the good will to be sold or disposed of as may be deemed most advantageous to the partners; and, that the purchaser at such sale, though a stranger to the firm, may lawfully continue the use of the firm name in carrying on the business thereafter. And that seems but the logical result of the rule that the rights mentioned belong to a partner who becomes a purchaser at such sale; for, in order to insure a. fair sale, all bidders should stand upon an equality, which would not be so if the rights acquired at the sale were to be varied or made to depend upon the relation which the purchaser had sustained to the partnership, or other individual circumstance. The saleable value of the good will is whatever it is worth in the market when open to untrammeled competition; and when brought to that test for the benefit of the partners, it is not for them to assert that the purchaser obtained less than they authorized to be sold, or induced him to believe he was buying.

It is contended that Bradley did not become the owner of the good will of the late firm of which he was a member, by his purchase at the receiver’s sale, because, (1) the good will of the plaintiffs was put into the firm as an offset to the use of Bradley’s manufactory and only for the period ag’reed upon for the duration of the partnership, and therefore, at the expiration of that period the plaintiffs were re-invested with their- good will, as was Bradley with the possession of his property; (2) the order of the court under which the sale was made expressly excludes any right on the part of the purchaser to make use of the firm name; and, (3) the good will ceased upon the termination of the partnership, and consequently could not be sold.

1. With respect to the first of these propositions, it may be observed that what the order of the court directed to be sold, and what the receiver under its authority in fact sold, was not the good will or property of the plaintiff’s, but those belonging to the firm. The plaintiff’s business and its good will as they existed at the formation of the partnership, were absorbed and merged in those of the firm, and went to make up its assets, and, in so far as, they did so, became the property of the firm, subject to sale under the order with its other effects, and with them- vested in the purchaser. Conceding, however, that the plaintiffs, at the expiration of the partnership into which they had entered with Bradley, were restored to the good will which belonged to their business when the partnership was formed, and were entitled to resume that business under the name they had formerly used, it is not perceived how that could operate to vest in them any part of the good will of the firm, or prevent its vesting in Bradley under the receiver’s sale.

2. The order under which the sale was made directs the receiver to sell all of the property of the firm “as a whole including the good will,” and provides that “the purchaser shall have the right to carry on the business as successor to the Snyder Manufacturing Company, ” but states, that “the court does not pass upon or make any order whatever as to what name said purchaser would have the right to use in carrying on said business. ” The last clause of the order is relied upon as excluding any right on the part of the purchaser under it to employ the name of the firm in any business he might choose to carry on after the purchase, and as further excluding any authority to do such business as the successor of the firm. But it is obvious the clause has not that operation. Instead of being an adjudication abridging the rights of the purchaser, with regard to the use of the firm name, its design was to leave the determination of those rights, in any controversy that might thereafter arise concerning them, unaffected by the order. And, as a partner who purchases the property and good will of the copartnership becomes entitled to the use of the firm name in the absence of a stipulation forbidding it, an express provision in the sale, or the order of the court under which it was made, that the purchaser should have that right was unnecessary.

3. The proposition mainly urged in support of the judgment below is, that the good will of a copartnership can exist only so long as it is a g’oing’ concern, and, ceasing upon the termination of the partnership, is not thereafter a subject of sale. It may be that when a firm is dissolved, its effects distributed, or sold in parcels to purchasers not wishing to embark in a similar business, and its affairs are wound up, its good will is dissipated and lost; but that results from the acts of the partners themselves in making such a disposition of the assets as renders the good will unavailable as a saleable article,, for it is not a distinctive article of property which may be sold separate from the tangible effects of the partnership. In that sense the good will may be said to cease when the partnership is so wound up; and that in substance, is the scope and purport of the rule declared in the cases cited in the brief of the defendant in error. In neither of the eases was the question here presented, involved. And, where the copartnership is wound up in the manner indicated, the good will remains the undivided property of the members of the firm, either or any of whom may thereafter lawfully use the firm name if they desire to continue in business, although the name of the partner so using it does not appear in that of the firm. Banks v. Gibson, 34 Beav., 566; Bradbury v. Dickens, 27 Ibid., 53; Caswell v. Hazard, 121 N. Y., 484 Dougherty v. Van Nostrand, Hoff., Ch. 68.

The proposition contended for, if sustained, would practically destroy the value of the good will as an asset of the partnership, and entail upon its members, in many instances, serious loss. As partnerships rest upon the agreement of the parties, expressed or implied, a dissolution occurs and a new partnership is foirned whenever a partner retires, or a new one is admitted; and if, when that occurs, the good will of the dissolved firm should cease, and could neither be acquired by the new firm, nor transferred by any sale made by the members of the old one though expressly included ixx the sale of its effects, its value as an asset of the firm would disappear; yet, it is commonly known that the good will coixstitutes an important, and sometimes a coxxtrolling part of the considex-ation for the purchase, and it has long been the settled law that, ixx _cases of the kind mentioned the purchaser obtains the good will, including the right to the use of the firm name in the contixxued prosecution of the business. In so holdixxg the courts give effect to the intention of the pax-ties as disclosed by the transaction. Where the partners themselves make a sale of the firm effects, including the good will, the intention and understanding is manifest that the purchaser shall acquire and enjoy every advantage and benefit which the firm had, so far as the parties are capable of transferring the same; and when a sale is made under an order of court in a proceeding to which the partners are parties that intention may be not less plainly inferable. The object to be accomplished in making the sale, in either mode, of the good will with the other partnership effects, is to enhance the value of the assets by inducing persons to bid more for them than they otherwise would, under the belief that the purchaser will obtain all the benefits of the good will; and when the sale is made and consummated on that basis, it would be neither just nor equitable to permit the vendors to deprive the purchaser of anything they undertook to sell, and for which they have been paid. The good will being thus sold as a thing of value, and paid for by the purchaser as such, to deny him the benefit of it would operate as a fraud which the law will not sanction.

We are not reluctant, therefore, in holding that upon the dissolution of a trading copartnership, its assets, including the good will of the business, may be sold as a whole, either by the partners directly, or through a receiver under an order made by a court in a case to wjhich they are parties; and that a purchaser thereof under either method of sale is entitled to continue the business as the •successor of the firm, and make use of the firm name for that purpose. And, further, that where the purchaser transfers the property so acquired by him to a corporation of which he is a member, organized to succeed to the business, it may carry on the business, in the same manner, under a corporate name including the name which had been used by the firm. Brass and Iron Works v. Payne, 50 Ohio State, 115.

If it is desired to limit the right of the purchaser or his vendee in the use of the firm name, or exclude such right altogether, it should be done by stipulation in the contract when the sale is made by the partners, or by a.provision to that effect in the order, when the sale is made through the court.

In the case of Horton Manufacturing Co. v. Horton Manufacturing Co., 18 Fed. Rep., 816, cited by counsel for the defendant in error, a copartnership without any consideration obtained the consent of a person not a member to usé his name in, and as part of the firm name. That consent, the court held, amounted to a mere license, revocable at pleasure, and the partnership so obtaining it could not, without the consent of such person, “transfer the right to another company or corporation to make a like use of the name.” But that case cannot be regarded as an authority against the claim made by the plaintiff in error in this case; for, where the partners themselves make a sale of their firm’s good will, which carries with it the right to use the firm name, or authorize such sale to be made it cannot be said that the use of the name, either by the purchaser, or those succeeding to the business, is without their consent. As said by the court in the ease just cited, on page 819: “If one has made of his own name a trade mark, and then transfers to another his business, in which his name has been so used, the-right to continue such use of the name will doubtless follow the business as often as it may be transferred. ”

Upon the facts admitted by the pleadings the judgment of the circuit court must be reversed, and judgment rendered for the plaintiff in error.

Judgment accordingly.