As a preliminary to considering what contracts may be made on the sale of a business, it is desirable to observe what obligapartner on dissolving partnership may make a similar contract limited to a city or town. These statutory provisions have been copied in Oklahoma, Rev. L. (1910), Sec.Sec.978-980, and in South Dakota Civ. Code, Sec.Sec.1277-1279; North Dakota Comp. L., Sec.Sec. 5928-5930. See Strobeck v. McWilliams, (N. Dak. 1919), 171 N. W. 865.

In Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596, 49 N. E. 1030, 41L. R. A. 185, 63 Am. St. Rep. 736, the court held that a covenant by the seller of a business that he would not engage in the same business in the United States for a period of twenty-five years was invalid as necessarily tending to create a monopoly whether it was necessary or not to the reasonable enjoyment of the good will purchased. See also the following cases tending to show that an absolute territorial limitation is essential: Lanzit v. J. W. Sefton Mfg. Co., 184 111. 326, 56 N. E. 393, 75 Am. St. Rep. 171; Union Strawboard Co. v. Bonfeld, 193 111. 420, 61 N. E. 1038, 86 Am. St. Rep. 346; Tiinneman v. Allison, 142 Ky. 309, 134 S. W. 134; Boone v. Burnham, 179 Ky. 91, 200 S. W. 315; Western Woodenware Assoc, v. Starkey, 84 Mich. 76, 47 N. W. 604, 11 L. R. A. 503, 22 Am. St. 686; Clark v. Need-ham, 125 Mich. 84, 83 N. W. 1027, 51 L. R. A. 785,84 Am. 559; Mallinckrodt Works v. Nemnich, 83 Mo. App. 6; Mallinckrodt Works v. Nemnich, 169 Mo. 388, 69 S. W. 355; Henschke v. Moore, 257 Pa. 196, 205, 101 AtL 308, 311; Berlin Works ». Perry, 71 Wis. 495, 38 N. W. 82, 5 Am. St. Rep. 236.

On the other hand, in several cases in the Federal courts, the modern English test has been adopted, which altogether discards arbitrary limitations and makes validity depend on what is necessary for the protection of the promisee, providing no injurious monopoly is attempted.

In Cropper v. Davis, 243 Fed. 310, 156 C. C. A. 90, one employed for five years covenanted that if released therefrom to enter another line of business it must be with an employer which did not use the plans or forms of the National Rating League, in competition therewith. The court said (p. 314): "It appears from the bill and is admitted that the defendants were carrying on business in Nebraska, North and South Dakota, Iowa, Kansas, and Oklahoma, and this is a part of the territory in which according to the admitted allegations the plaintiff was doing business." An injunction was accordingly granted, and the court said in supporting its conclusion: "The rule is that a restrictive contract should be tested by determining on the facts of the particular case whether the restriction upon one party is greater than is reasonably necessary for the protection of the other party. Hall Mfg. Co. v. Western Steel & Iron Works, 227 Fed. 588, 142 C. C. A. 220, 227, L. R. A. 1916 C. 620."

In Frame v. Ferrell, 166 Fed. 702, 92 C. C. A. 374, it was held that, though there was no specific limitation as to territory in the contract, it was valid at least throughout the United States; and under the circumstances should be regarded as intended to apply only to the United States.

In Harrison v. Glucose Sugar Refining Co., 116 Fed. 304, 308, 53 C. C. A. 484, 488, 58 L. R. A. 915, it was said: "It is urged that the contract in question is one in restraint of trade because of the covenant that during the tions arise on such a sale without express promises. Good will which has been defined as "The probability that the old customers will resort to the old place," 61 but which includes unquestionably not only the probabilities attaching to a location, but those attaching to an established business wherever it may be situated,62 is protected as a kind of property. It forms part of the assets of a partnership which must be accounted for as such.63 A contract to sell or a sale of the business includes impliedly as part of the subject-matter of the bargain, the good will;64 and a sale of good will, either in express terms or implied from a sale of a business by the owner (whether an individual or a partnership) carries with it certain implied obligations on the part of the seller. Unless some express restriction is stipulated time of service the appellant would not, directly or indirectly, become interested in the specified business within a radius of 1,500 miles from the city of Chicago otherwise than under his engagement with the appellee. . . .

"The restraint must not be arbitrary, but should be limited. It must be reasonable with respect to time and to the area within which the covenantee prosecutes his business. . .

"Within the modern doctrine we cannot say that this restraint is invalid."

In Knapp v. S. Jarvis Adams Co., 135 Fed. 1008, 1012, 70 C. C. A. 536, 540, it was said: "With respect to the territory to which the restriction should apply, the rule has always been that it might extend to the limits wherein the plaintiff's trade would be likely to go."

In Carter v. Ailing, 43 Fed. 208, 211, it was said: "The courts have repeatedly recognized the validity of contracts in restraint of trade throughout an entire state or country, where such restraint was not unreasonable, in view of the nature and extent of the business of the covenantee.1' In Harbison-Walker Ac. Co. v. Stanton, 227 Pa. 55, 75 Atl. 088 a covenant, restricting the promisor from doing business in five States was upheld. See also Swigert v. Tilden, 121 la. 650, 97 N. W. 82, 63 L. R. A. 608, 100 Am. St. 374; Kochenrath v. Christman, 180 Ky. 799, 203 S. W. 738.

61 Cruttwell v. Lye, 17 Ves. 335; Luf kin Rule Co. v. Fringeli, 57 Ohio St. 596, 49 N. . 1030, 41 L. R. A. 185, 63 Am. St. Rep. 736.

62 Churton v. Douglas, Johns. (Eng.) 174. See also Trego v. Hunt, [1896] A. C. 7, 16, 17, 23, 27; Bell v. Ellis, 33 Cal. 620; Armstrong v. Atlantic Ice, etc., Corp., 141 Ga. 464, 81 S. E. 212; People v. Roberts, 159 N. Y. 70, 53 N. E. 685, 45 L. R. A. 126; Von Bremen p. MacMonnies, 200 N. Y. 41, 93 N. E. 186, 32 L. R. A. (N. 8.) 293; In re Ball, 161 N. Y. App. Div. 79,146 N. Y. S. 499; Faust v. Rohr, 166 N. C. 187, 81 S. E. 1096.

63 Gilmore, Partnership, Sec. 49.

64 Shipwright v. Clements, 19 W. R. 599; Menendea v. Holt, 128 U. S. 514, 32 L. Ed. 526, 9 Sup. Ct. Rep. 143; Hoxie v. Chaney, 143 Mass. 592, 10 N. E. 713, 58 Am. Rep. 149; Merry v. Hoopes, 111 N. Y. 145, 18 N. E. 714; Steinfeld v. National Shirt Waist Co., 99 N. Y. App. Div. 286, 90 N. Y. S. 964; Dec. Dig., Good Will, Sec.Sec. 1-6.

placed on the seller, however, he may enter into subsequent competition with the buyer.65 But he may not solicit his former customers to do business with him.66 This is on the prin-

65 Churton v. Douglas, Johns. (Eng.) 174; Labouchere v. Dawson, L. R. 13 Eq. 322; Trego v. Hunt, [1896] A. C. 7; Jennings v. Jennings, [1898] 1 Ch. 378; Re David & Matthews, [1899] 1 Ch. 378; Gillingham v. Beddow, [1900] 2 Ch. 242; Curl Bros., Ltd., v. Webster, [1904] 1 Ch. 685; Knoedler v. Boussod, 47 Fed. 465; Knoedler v. Glaenser, 55 Fed. 895, 5 C. C. A. 305, 14 U. S. App. 336, 20 L. R. A. 733; Cottrell o. Bab-cock, etc., Mfg. Co., 54 Conn. 122, 6 Atl. 791; Porter v. Gorman, 65 Ga. 11; Ranft v. Reimers, 200 11l. 386, 65 N. E. 720, 60 L. R. A. 291; Beard v. Dennis, 6 Ind. 200, 63 Am. Dec. 380; Findlay v. Carson, 97 Iowa, 537, 66 N. W. 759; Drake v. Dodsworth, 4 Kans. 159; Bergamini v. Bastian, 35 La. Ann. 60, 48 Am. Rep. 216; Bassett v. Perri-val, 5 Allen, 345; Hoxie v. Chaney, 143 Mass. 592, 10 N. E. 713, 58 Am. Rep. 149; Williams v. Farrand, 88 Mich. 473, 50 N. W. 446, 14 L. R. A. 161; Wessel v. Havens, 91 Neb. 426, 136 N. W. 70, Ann. Cas. 1913 C. 1377; Smith v. Gibbs, 44 N. H. 335; Snyder Pasteurised Milk Co. v. Burton, 80 N. J. Eq.

185, 83 Atl. 907; Von Bremen v. MacMonnies, 200 N. Y. 41, 93 N. .

186, 32 L. R. A. (N. S.) 293; Close v. Flesher, 8 N. Y. Misc. 299, 28 N. Y. S. 737, 59 N. Y. State Rep. 283; Farrand v. Farrand, 84 N. Y. Misc. 234, 147 N. Y. S. 89; Faust v. Rohr, 166 N. C. 187, 81 S. E. 1096; Moody v. Thomas, 1 Disney (Ohio), 294; In re Hall's Appeal, 60 Pa. 458, 100 Am. Dec. 584; White v. Trowbridge, 216 Pa. 11, 64 Atl. 862; Zanturjian v. Boomasian, 25 R. I. 151, 55 Atl. 199; Moreau v. Edwards, 2 Tenn. Ch. 347; Bradford v. Montgomery Furniture Co., 115 Tenn. 610, 92 S. W. 1104, 9 L. R. A. (N. S.) 979; Fish Bros. Wagon Co. v. LaBelle Wagon Co., 82 Wis. 546,

52 N. W. 595, 16 L. R. A. 453, 33 Am. St. Rep. 72.

In Massachusetts a stricter rule is laid down: "In each case where the good-will of a business is sold and the vendor sets up a competing business it is a question of fact whether, having regard to the character of the business sold and that set up, the new business does or does not derogate from the grant made by that sale," per Loring, J., in Old Corner Book Store v. Upham,

194 Mass. 101, 105, 80 N. E. 228, 120 Am. St. Rep. 532. See also Gordon v. Knott, 199 Mass. 173, 19 L. R. A. (N. S.) 762; Marshall Engine Co. v. New Marshall Engine Co., 203 Mass. 410, 89 N. E. 548; Batchelder v. Batchelder, 220 Mass. 42, 107 N. E. 455; Hall Mfg. Co. v. Western Steel & Iron Works, 227 Fed. 588,142 C. C. A. 220, L. R. A. 1916 C. 620. And in some States a distinction is observed between the sale of the good will of a mercantile business and that of a professional man. In the latter case "the personal qualities of integrity, professional skill and ability attached to and follow the person and not the place," per Braley, J. Foss v. Roby,

195 Mass. 292, 81 N. E. 199, 10 L. R. A. (N. S.) 1200. See also Beatty v. Coble, 142 Ind. 329, 41 N. E. 590; Brown v. Benanger, 118 Md. 29, 36, 84 Atl. 79, Ann. Cas. 1914 B. 582; Yeakley v. Gaston, 50 Tex. Civ. App. 405, 111 S. W. 768.

66 Labouchere v. Dawson, L. R. 13 Eq. 322; Ginesi v. Cooper, 14 Ch. D. 596; Trego v. Hunt, [1896] A. C. 7 (overuling Pearson v. Pearson, 27 Ch. D. 145, and Vernon v. Hallam, 34 Ch. D. 748); Jennings v. Jennings, [1898] 1 Ch. 378; Gillingham v. Beddow, [1900] 2 Ch. 242; Curl v. Webster, [1904] 1 Ch. 685; Acker Ac. Co. v. McGaw, 144 ciple that the seller may not derogate from his own grant. In an involuntary sale, as by a receiver or trustee in bankruptcy, there is no such implied contract. A discharged bankrupt may compete with the purchaser from his trustee, and solicit his own former customers.67 Though the seller of a business may subsequently use his own name in a competing business,68 he cannot make use of any other trade name under which his former business was conducted.69 Nor can he represent him-self as successor of the old business.70