the persons in whom they have professional and personal confidence.

out in this court." The clerk reported the facts as already stated, and that defendant should pay to the complainant $500 for his interest in the lease, upon the ground that it was valuable, and enabled the holder to appear to the public as the successor of the old and well-established firm, and procure a release of the property. This was excepted to, and exception overruled by the chancel-goodwill between these parties after the dislor, and there was an allowance of $500 in favor of complainant for his interest in the remainder of the rental or lease contract reciting that it was the value of the goodwill attached to the offices. From this much of the decree the defendant appealed, and this presents the only question before us.

It will be seen, from this brief mention, what an unreliable—and, we might say, imaginary-value could be placed upon what is called "goodwill” in this case. East Tennessee Nat. Bank v. First Nat. Bank, 7 Lea, 420. Certain it is that there was no actual solution. On the contrary, they were hostile in their views. It was not the case of one professional retiring, and recommending his successor to his old customers, which is the principal feature in sales of goodwill, when voluntarily made. But, in this instance, the defendant was not recommended by complainant. On the contrary, he entered immediately into open and aggressive com

hope to reap much, if any, advantage from occupying the same quarters; for the complainant, as an active competitor, was hard by in the next room, and as likely to get the old customers, perhaps, as was the defendant. The clerk and master and chancellor evidently fixed the value of this "goodwill," as it is termed, from the circumstance that complainant had expressed a willingness to pay defendant $500 for the use of the offices for the remaining term of seven months unexpired. But it must be evident, on the one hand, that he might be willing, after having secured his own office adjoining, to pay this sum to have the old offices closed, and defendant removed entirely from the premises, and never use the rooms himself; and, on the other hand, defendant did not stand upon an equal footing in bidding for the use of the offices, because, if he failed to get them, he must go off into some other locality, while, if complainant failed to get them, he had only to step into the next room, and, according to the proof, be as favorably located, if not more so, than in the old offices. The complainant could thus set himself up in the premises of the old firm, and, inasmuch as defendant had gone out of the building, he might be taken as the successor of the old firm. But defendant could not do this, because complainant was located at his very threshold, to rebut such an inference by the public. We do not think this offer was any criterion of value of the use of these rooms. It might more properly be said to be complainant's estimate of benefit to be secured from closing them up.

The rental paid the landlord for the rooms under the lease to the firm was $49 per month, and after the firm dissolved defend-petition with him. Neither could defendant ant continued to pay this amount of rental, and after the expiration of that lease he rerented at the same rate. It appears that the complainant also tried to rerent the rooms at the same price after the firm lease terminated. The chancellor, as well as counsel, have treated the item of $500 as the "goodwill" of the firm. It is difficult to define what goodwill is. Lord Eldon said that it was simply "the probability that the old customers will resort to the old place." Cruttwell v. Lye, 17 Ves. Jr. 335; Moreau v. Edwards, 2 Tenn. Ch. 349. But in Churton v. Douglas, Johns. V. C. (Eng.) 174, it was said that this was too narrow a view to take of it, and there it was said that it was every positive advantage acquired, arising out of the business of the old firm, whether connected with the premises where it was carried on, with the name of the late firm, or with any other matter carrying with it the benefit of the business of the old firm. But it is evident that this definition is too narrow, when applied to the good will of a partnership to practise a profession, since it leaves out of view the advantage to be gained from the professional standing and reputation of the partners themselves which constitutes the principal feature of value in such partnership. Accordingly, it is insisted that there is no such thing as goodwill attaching to professional partnerships. Certainly, there can be no forced sale or transfer in invitum of such goodwill, so far as it is based upon professional reputation and standing, such as arises from the skill of physicians, dentists, attorneys, etc., whatever may be done as to such goodwill as arises out of location. Still, in the sense in which Lord Eldon uses the term "goodwill of the premises," there may be an advantage of pecuniary value in occupying premises which have been occupied by skilled professional men, and to which the public has resorted, or has been attracted by advertisements, or prior visits, or general reputation of prior occupants. Many persons, attracted to the place by the reputation of former occupants, might remain, no matter who might be in occupancy, and others might leave so soon as it was ascertained they were not occupied by

But we think the principle back of all is that no forced sale or transfer can be madeof a goodwill, when it is based upon professional reputation and standing, or upon business connections. Goodwill implies something gained by consent, not something realized by force or coercion. We do not mean to hold that goodwill has no value, and may not be the subject of a voluntary sale. On the contrary we think it might be sold, and is a valid consideration for a contract: and it has been so held in a number of cases. 8 Am. & Eng. Enc. Law, p. 1372, note 7. In Bunn v. Guy, 4 East, 190. a contract by a practising attorney to relinquish his busi

1899.

SLACK V. SUDDOTH.

ness, and recommend his clients to two other
attorneys, and that he would not re-enter the
practice in certain localities, was held a good
contract. So in Whittaker v. Howe, 3 Beav.
383. In Hoyt v. Holly, 39 Conn. 326, 12
Am. Rep. 390, there was a similar contract,
made by a physician with a brother physi-
cian, and it was sustained. So in the case of
In all these
Warfield v. Booth, 33 Md. 63.
cases there was a voluntary sale, and an ob-
ligation to aid the purchaser, or not to enter
into competition with him for a certain time
or in certain localities. No doubt, in this
case, complainant could have made a valid
agreement with defendant, for a considera-
tion, to leave the old offices, and let him have
the advantage of their use; but this was not
done.

We are of opinion it was error to allow this item, and it is stricken out. Judgment will be rendered as may be indicated by the result. This may be agreed on, or the clerk of this court, in the absence of such agreement, will report the amount. The appellee will pay costs of appeal. Costs of court below will remain as adjudged by that court.

William H. COOPER, Admr. of Oscar Cooper, Deceased, Plff. in Err.,

2.

Jesse M. OVERTON et al.

591

Messrs. G. H. Gillham and George Gillham, for plaintiff in error:

If a pond should form upon the vacant property of an owner, situated in a populous district of a city, and near streets and public schoolhouses where many children attend, and which pond is deep enough to drown a child, it is the duty of the owner to abate the nuisance,-to drain the pond, or to fill up the pond.

Whirley v. Whiteman, 1 Head, 610; Pekin v. McMahon, 154 Ill. 141, 27 L. R. A. 206; Price v. Atchison Water Co. 58 Kan. 551; Brinkley Car Co. v. Cooper, 60 Ark. 545; Barthold v. Philadelphia, 154 Pa. 109; Malloy v. Hibernia Sav. & L. Soc. (Cal.) 21 Pac. 525.

The owner has been held liable for allow

ing some dangerous agency to exist on his premises, which was attractive to children.

Siddall v. Jansen, 168 Ill. 43, 39 L. R. A. 112; Schmidt v. Kansas City Distilling Co. 90 Mo. 293; Penso v. McCormick, 125 Ind. 116, 9 L. R. A. 313; Dwyer v. Missouri P. R. Co. 12 Mo. App. 597; Whirley v. Whiteman, 1 Head, 616.

The owners have been held liable for failure to properly protect their premises where children have been injured.

Mackey v. Vicksburg, 64 Miss. 777; Lepnick v. Gaddis, 72 Miss. 200, 26 L. R. A. 686; Bransom v. Labrot, 81 Ky. 638, 50 Am. Rep. 193; Union P. R. Co. v. McDonald, 152 U. S. 262, 38 L. ed. 434; Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175; Hydraulic Works Co. v. Orr, 83 Pa. 332; Powers v. 1. The liability of the owner of dan- Harlow, 53 Mich. 507, 51 Am. Rep. 154; 1 gerous premises to trespassers does Thomp. Neg. 304, 305; Cooley, Torts, 608. Pekin v. McMahon, 154 Ill. 141, 27 L. R. not exist, even in the case of children, unless they are induced to enter on the land by some-A. 206, is almost identical with the present thing unusual and attractive placed upon it by the owner, or with his knowledge, and permitted to remain there. an unfenced city lot, 2. A pond on formed by surface water on account of the damming up of a natural drain therefor, by the dumping of trash and dirt into it by city authorities, without the knowledge of the owner, who did not know of the existence of the pond, will not render him liable for the drowning of a boy while playing on the pond.

case.

The principle of that case, if followed by this court, must result in a reversal of the present case.

Price v. Atchison Water Co. 58 Kan. 551,. approves and follows the Illinois case.

Brinkley Car Co. v. Cooper, 60 Ark. 545; Barthold v. Philadelphia, 154 Pa. 109; Malloy v. Hibernia Sav. & L. Soc. (Cal.) 21 Pac. 525; Siddall v. Jansen, 168 Ill. 43, 39 L. R. A. 112; Schmidt v. Kansas City Distilling Co. 90 Mo. 293; Penso v. Mcwhether or not boys like to ride on a plank Cormick, 125 Ind. 116, 9 L. R. A. 313; Union

3. Opinions of witnesses attracts children

as to what
to water,
as

in the water, are inadmissible.

or

to

P. R. Co. v. McDonald, 152 U. S. 262, 38 L. ed. 434; Dwyer v. Missouri P. R. Co. 12 Mo. App. 597; Mackey v. Vicksburg, 64 Miss. 777; Sioux City & P. R. Co. v. Stout, 17 ORROR to the Circuit Court for Shelby Wall. 657, 21 L. ed. 745; Lepnick v. Gaddis,.

(April Term, 1899.)

in 200, 26

of defendants in an action brought to hold defendants liable for the death of plaintiff's intestate which was alleged to have been caused by defendant's negligence. Affirmed. The facts are stated in the opinion.

NOTE. On the question of liability for dangerous private grounds, see note to Lepnick v. Gaddis (Miss.) 26 L. R. A. 686.

As to liability for negligence in permitting a pond on one's premises in which children may drown, see, as supporting the liability, Pekin v. McMahon (Ill.) 27 L. R. A. 206; and as deny

Labrot, 81 Ky. 638, 50 Am. Rep. 193; Beck
v. Carter, 68 N. Y. 283, 23 Am. Rep. 175;
Hydraulic Works Co. v. Orr, 83 Pa. 332;
Powers v. Harlow, 53 Mich. 507, 51 Am. Rep..

154.

ing the liability, Moran v. Pullman Palace Car
Co. (Mo.) 33 L. R. A. 755; Dobbins v. Missouri,
K. & T. R. Co. (Tex.) 38 L. R. A. 573; Omaha v.
Bowman (Neb.) 40 L. R. A. 531; Stendal v.
Boyd (Minn.) 42 L. R. A. 288; and Ritz v..
Wheeling (W. Va.) 43 L. R. A. 148.

Negligence cannot be attributed to chil- | Rep. 365; Richards v. Connell, 45 Neb. 467; dren under these circumstances. Klix v. Nieman, 68 Wis. 271, 60 Am. Rep. 854; Ratte v. Dawson, 50 Minn. 450; Clark v. Manchester, 62 N. H. 578; Overholt v. Vieths, 93 Mo. 422; Pierce v. Whitcomb, 48 Vt. 127, 21 Am. Rep. 120; McEachern v. Boston & M. R. Co. 150 Mass. 515; Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175; Cooley, Torts, 606; Shearm. & Redf. Neg. 4th ed. § 505.

ment for defendant, and an appeal by plaintiff, as administrator, and he has assigned

errors.

see.

public to use a pathway across their lots, or that they knew of such use. The deceased was a pupil in the public school, and is shown to have been a boy of average intelligence. It appears that the school children had been playing in a bayou which crossed these lots. They had been forbidden (and the intestate with the others) from going on these lots by the principal, and as a rule these instructions had been obeyed. The deceased, however, with another boy, John Appling, aged about eleven years, and a younger brother of the latter, went over this lot from the sidewalk, about 50 feet, to the edge of the pond. A piece of the plank sidewalk had been torn up and thrown on the water of the pond, by whom does not appear, and appears to have been the only one on the surface of the water. Oscar Cooper got upon this plank and attempted to propel it around the pond, over the water, with a stick. He lost his balance and fell off the plank into deep water and was drowned. It appears that the two Appling boys declined to get on the plank, deeming it dangerous, though invited to do so by young Cooper. It appears that other children had been playing at or in this pond, sometimes bathing and swimming, but whether school children or not does not appear. It is not shown that the pond had any special attraction for boys, but some testimony tending in that direction was excluded, and forms the basis of a part of the assignments. There was no dan ger to anyone on or using the sidewalks. There is testimony tending to show that there was no pond there in the summer, and that it was only formed by heavy rainfalls, and would soon dry up. When the pond was full, it would extend up to and under the sidewalk of Clay street, but was shallow at that point, and generally around the margin of the pond. Various assignments of error are made, principally to the failure of the trial judge to give certain requests asked by plaintiff's counsel, and to the charge as given by him.

The facts, so far as necessary to be stated, are that Oscar Cooper, a boy about ten years of age, was drowned by falling from a plank upon which he was attempting to float upon | a pond of water upon a lot owned by defendant Jesse M. Overton, in Memphis, TennesOverton is a resident of Nashville, Tennessee, and is the owner and in possession of lots Nos. 48 to 53 of block 24 in the tenth ward of Memphis. These lots front about 148 feet on the east line and about 400 feet on the north line of Clay street, They had descended to him from his grandfather. They were unimproved, unfenced, and uninclosed. The property had no other than natural drainage. The lot adjoining these lots is separated from them by a fence, and on it there is a house, about 150 feet from the line of the lots. There are no other houses in the immediate vicinity of these lots, but they are located within a few blocks of a somewhat thickly populated part of the city. About 450 feet northwest of these lots is a public-school building, usually attended by about 370 pupils, and there is a Catholic parish school a few blocks south. This property was looked after by Overton & Overton, real-estate agents, for the owner, Jesse M., who rarely visited Memphis. Surface water from contiguous property flowed across these lots, and gradually cut a gully several feet deep, through which it found vent. The city, it appears, without the knowledge of the owner or his agent, filled up the lower end of this drain by dumping trash and dirt into it, so as to form a dam and cause a pond of water to form or accumulate on the lot. The edge of this pond was about 50 feet from a sidewalk on Lea street, and 150 feet from a sidewalk on Clay street. It appears from the statements in the record that Overton & Overton, agents, were in the habit of inspecting the premises about twice a month, and when last inspected there was no pond upon them; and The first and second assignments will be it is further stated that they had no knowl-treated together, and are refusals to charge edge there was a pond upon the lot until aft- as follows: "(1) The court instructs you er the drowning, which occurred February that it is the duty of all owners of property 10, 1898. It further appears that the pond situated in the city, or where many people would form after a heavy rain, and in a live or travel to take such reasonable care of short time would dry up and disappear, the same as will render it reasonably safe to and at this time there had been a heavy rain the public. (2) It is the duty of any such for two days. When notified of the acci- property owner to abate any dangerous nuident, Mr. Overton went to the city authori- sance which may arise on his premises, and ties, and complained of their action in stop-it is his duty to look after his property; and, ping the drain, and the city at once removed if a nuisance has existed for a considerable the dam and filled up the pond. On both time, he is, in law, presumed to know it, and sides of this property defendant Overton had then it becomes his duty to abate it." caused sidewalks to be laid, and the pond Without stopping to comment on these rewas about 50 feet from the nearest point of quests, which we think are too general and the sidewalk. There appears, also, to have meager in terms, we think the trial judge in been a path or walkway across the lot, which his general charge more correctly stated the was used by a few persons as a cut-off, in-law applicable to the facts of this case, and stead of going around the sidewalks, but the in much better language, as follows: "An public was not in the habit of using it. Its nearest point to the pond was about 25 feet. It does not appear that the owner or his agent had ever given any permission to the

actionable nuisance is anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal right. This necessarily carries you to determining

what Oscar Cooper's legal rights were. He before he came to place of danger in the had a legal right to pass over and along pond, then there can be no recovery in this either Clay or Lea street in safety. These case from the bare fact of maintaining or were the streets that bounded the lots upon permitting a pond to remain on the lot, for which it is claimed the pond was. Defendant the reason that every owner of real estate Overton had no right to construct, maintain, has the right to use his property just as he or permit a pond upon his lots so near to the pleases, so long as the use which he makes of streets which bounded the lots as to make it it does not endanger anyone else in the endangerous to persons who were using the joyment of their legal rights; and, if any streets. So, if you find from the evidence owner of real estate has a right to use his that the pond was so near to the streets property just as he pleases, you can see that which bounded the lots as to endanger any such owner has the right, if he so desires, to one who was using the streets, and as a con- dig a pond on his lot. The only restriction sequence thereof Oscar Cooper was drowned, which the law imposes upon this right is then the plaintiff can recover." this: that the owner, in digging the pond, The third assignment is that the trial must see to it that he does not put it near judge refused to charge a request as follows: enough to an adjoining lotowner to endanger "If a pond should form upon the vacant the use of his property, and that he does not property of the owner, situated in the popu- dig it near enough to a public street to make lous districts of a city, and near streets or it dangerous to persons using the street. public schools where many children attend, When the lotowner has observed these preand which pond is deep enough to drown a cautions in digging or maintaining a pond child, it is the duty of the owner to abate on his lot, he has complied with the law, and the nuisance, to drain or fill up the pond." no one can legally complain. If he has not This assignment will be considered with the observed the precautions just mentioned, and fourth and fifth, which raise the question of injury results to anyone as a consequence of the correctness of the trial judge's charge as these owners failing to observe them, the ina whole,-upon the duties of the landowner jured person can recover." It will be noted and the rights of the public. The judge that neither in the charge nor the requests charged as follows: "The pleading of de- is the idea prominently presented that this fendant Overton puts upon plaintiff, Cooper, pond was or might be a place attractive to the burden of making out his case upon every children, but the requests are based upon the material point by a preponderance of the idea that there is an obligation resting on the evidence. The material points upon which landowner to keep his premises near a pubthe evidence must preponderate, before it lic school or highway free from dangers authorizes the jury to give plaintiff a ver- which arise from natural or artificial causes. dict, are the following: First, he must es- This feature of attractiveness of the pond tablish the fact that a pond was maintained was made prominent in the declaration, and or permitted to exist upon defendant's lots; some proof was attempted to be introduced second, that the manner or condition in which upon it, but was rejected, so far as based on it was maintained or permitted to exist was opinion. It is, however, pressed in argunegligence in itself; third, that it was be- ment, and will be considered along with the cause of its condition, or the negligent man- other features of the case. As to this feaner in which it was maintained or permit- ture of attractiveness, the record presents the ted, that Oscar Cooper was attracted to it following state of facts: Miss Conway, the and was drowned. Unless these three points principal of the school, testifies that some are established by a preponderance of the boys had been reported to her as having evidence, there can be no recovery. An ac- skated on ice over Overton's lots, and she tionable nuisance is anything wrongfully had forbidden the little boys from going to done or permitted which injures or annoys the bayou to play, because they would get another in the enjoyment of his legal rights. their feet muddy. She had never known This necessarily carries you to determining that the children of the school had been in what Oscar Cooper's legal rights were. He the habit of playing on it. Wall, the janihad a legal right to pass over and along ei-tor ther Lea or Clay street in safety. These were the streets that bounded the lots upon which it is claimed the pond was. Defendant Overton had no right to construct, maintain, or permit a pond upon his lots so near to the streets which bounded the lots as to make it dangerous to persons who were using the streets, so that, if you find from the evidence that the pond was so near to the street that it endangered anyone who might be using the street, and as a consequence thereof Oscar Cooper was drowned, the plaintiff can recover. On the other hand, if you find from the evidence that Oscar Cooper had to leave the sidewalk, and go over on the private property of Overton 30 feet or more,

says he has seen children come into school, and had to strip them; that they had fallen in, and come out, but that he did not know of any of the school children playing there, except from hearsay; that he had to run some children out who were swimming there, but not at the time of the year (February) when this drowning occurred. He had seen some children playing on some planks in the pond, but when this was is not stated. His evidence is largely, if not altogether, hearsay, and is not at all definite.

The case has been very elaborately and ably argued by learned counsel, and we have been furnished with exhaustive printed briefs on each side, and a very full citation of authorities. The plaintiff insists that