SEPARATE DISSENTING OPINION.
NIXON, P. J.This is an action for an injunction in which the petition charges that the defendant was in business in the town of Rogersville in Webster *559county, Missouri, and that on May 22, 1911, by written contract he sold to the plaintiff his wagon, harness, egg cases, chicken coops, telephone, etc., with the building then occupied by him and in which he was doing business; that defendant then contracted with the plaintiff “not to engage in the produce business ‘at Rogersville’ for five years;” that defendant violated such agreement by engaging in the produce business at Rogersville; and plaintiff asked that the defendant be enjoined perpetually from carrying on the produce business at Rogersville.
The question is sharply presented in this case whether the defendant’s agreement not to engage in the produce business “at Rogersville” was an agreement not to engage in the produce business “in Henderson.” Names of towns are properly geographical terms and commonly include not only the dwellings and business houses in the town but also convey the idea of a tolerably well-defined locality where such houses are situated. The litigants in this case at 'the time of making their contract were residents of Rogersville and are assumed to have understood the meaning of the terms “Rogersville” and “Henderson” and that the names designated certain fairly well-defined geographical areas in Webster county and their contract is to be construed with reference to such extraneous facts. If the plaintiff were asked where he is doing business now he would answer, “At Rogers-ville.” If further inquiry was made of him how far that was from Henderson and in what direction, he would reply, “One and. one-half miles, south.” If defendant were asked where he is doing business, he would without hesitation reply, “At Henderson.” If further inquiry was made of him how far that was from Rogersville and in what direction, he would reply, “One and one-half miles north.” If inquiry was made whether, he .is in business at Rogersville, he would reply that he is not now *560in business at Rogersville but is in business at Henderson. At the time of the execution of the written contract, Rogersville was an unincorporated town consisting of about two hundred and fifty inhabitants, covering a certain locality near the railroad tlepot, comprising a limited physical area on which houses were situated and business was transacted, the boundaries of which area were tolerably well-defined and understood by the inhabitants. The evidence does not disclose the number of dwelling houses in the town of Rogersville nor how many business houses there were. By the word “Henderson” the parties would understand a tolerably well-defined area in the same county, being an old town — older than Rogersville — a mile and one-half north of Rogersville, platted, having from three to five business houses, — a well-known trading point in that vicinity. The use of either of these geographical names by parties who were familiar with the locality would have excluded the other.
The numerous cases cited by appellant showing the meaning of the word “at” to be either “in” or “near” have no such application to the facts of this ease as to aid us in the solution of the questions presented because no case has been cited in which the facts are so closely parallel to the present one as to furnish authority for our guidance. The meaning nf the word “at” is somewhat indefinite, meaning sometimes “in” and at other times “near,” but in the present case the definition furnishes no sure guide and in order to arrive at the intention of the parties the significance of the word is to be fixed by the context and attending circumstances. At the time the parties made the contract and used the term ££ at Rogersville, ’ ’ they knew there was another town a mile' and one-half distant called Henderson at which the same kind of business was being carried on. If there had been no other established trading point in the vicinity of Rogers-ville existing as a recognized place of business, we *561would be confronted with a different situation. The parties are supposed to have used the terms of their contract intelligently and to have embodied their agreement in their written contract, as no fraud or1 mistake is charged. If it was their intention to exclude the respondent from engaging in the produce business anywhere within a radius of six miles of Rogersville at any of the four or five recognized trading-points within that radius, or if it was their intention to exclude the respondent from engaging in that business at another town called Henderson, the contract should have so expressed their intention by apt words, instead of saying nothing about Henderson. If the word “at” is to be made sufficiently flexible in this connection to include the town of Henderson a mile and one-half away, why could it not be made to include the town of Marshfield, some ten or fifteen miles distant in the same county, provided defendant had gone into the produce business there and such business was in competition with his old produce business at Rogersville? Two rules- of construction must be recognized in this case: First, that the words of the written contract are to be understood as used in their ordinary and popular sense, and in the absence of proof to the contrary the parties are presumed to have used their words in that sense. Second, when, as in this ease there are two towns in close proximity the rule, “ Expressio unius est exclusio alterius, would apply, and a contract not to engage in business “at Rogers-ville” would not exclude the .right to engage in business at Henderson. Courts are not authorized to put a different construction on a contract from what the parties intended it should bear; nor are they warranted in adding 'to it a further term, or in striking therefrom a term the parties have employed; nor are they justified in attempting to modify or reform a contract under the vague notion of relieving a party from *562the hardships of an agreement into which he has willingly and knowingly entered. Parties are presumed more competent to make their own bargains than the courts are to make bargains for them. [Streeter v. Rush, 25 Cal. 68.] And courts of equity are as powerless to make contracts for parties as courts of law under the guise of enforcing the spirit of the contract.
A sale of one’s merchandise business, when possession is surrendered of the storehouse in which the business has been carried on is ordinarily a sale of the good-will of the business but such sale does not prevent the vendor from engaging in the same business as a competitor of the vendee in the same town or from advertising his business in a general way even though it may diminish the trade of the purchaser. [20 Cyc. 1279.] The defendant in this case may well have been willing to sell his produce business and agree not to engage in the business again for five years at Rogersville for six hundred dollars, but if he was to contract away his right to engage in the business at Henderson, may have demanded eight hundred dollars, or perhaps would have declined to make any contract. But while the contract not to engage in the business at Rogersville would not prevent the defendant from engaging in the business at Henderson, he would still have no right to set up a business at Henderson and use that as a base of operations to engage in the produce business in Rogersville which he had contracted that he would not do. The most that is shown in the evidence in reg'ard to the defendant transacting business in Rogersville after his sale to the plaintiff is that he made the railroad .station at Rogersville his shipping point for his produce, and that his residence was at Rogersville, and that he received his mail there; that while he received some patronage from his old customers, in such-cases he required them to bring their produce.to his store at Henderson; that as to those who inquired by telephone for prices, he *563made it a condition that he would only purchase at Henderson. Only one instance is mentioned in the evidence where a purchase was made from a man living at Eogersville and it was made by the defendant at Henderson. "We think it is beyond all question that this evidence wholly fails to show that in fact the defendant actually engaged in the produce business at Eogersville after the sale to the plaintiff and that to construe the evidence to that effect would be to pervert language from its ordinary meaning. In the case of Thomas v. Administrator of Miles, 3 Oh. St. 275, Thomas and Miles were partners in trade, dealing in fancy goods, cabinet-makers’ trimmings, etc., in the city of Cincinnati. The defendant sold out to the plaintiff and agreed that he would not at any time within five years enter into or be concerned in the kind of business which had been conducted by said firm. After defendant had moved to New Jersey he went back to Cincinnati and arranged for several bills of the same class of goods and told some of his former customers at Cincinnati that he would furnish the goods lower than they could be bought in Cincinnati, and under this arrangement he did furnish to parties in Cincinnati several bills of goods. It was objected that he had entered into and was doing business in Cincinnati contrary to his contract. The court said: “Now, what was the object of this stipulation in the agreement? Unquestionably to avoid the competition of a rival establishment located in Cincinnati. It did not, upon any fair interpretation, prohibit Miles from pursuing the business elsewhere, and dealing with customers residing in Cincinnati. It has relation alone to the locality where the business is pursued, and where the establishment might be found by any person desirous of purchasing the goods that were kept for sale. He shall not enter into or be concerned in the business ‘within the city of Cincinnati.’ To speak of a New York merchant selling goods to Cincinnati customers *564as engaged in business in Cincinnati, would be such an obvious impropriety of language as to arrest the attention of the least observing, . . We think the facts of the Ohio case were much stronger than those in the present action and that when the evidence is fairly considered defendant has been acting in good faith so far as doing business at Rogersville is concerned, and that the judgment should be affirmed.