On Petition for Rehearing.
BURNETT, C. J.The defendant petitioned for a rehearing of this cause and in support thereof re-argues the same question involved in the principal part of the discussion in the opinion already rendered.
5. Reduced to its lowest terms, the effort of the defendant is to construct a contract entirely different in its terms and obligations from that expressed in the writing which both parties admit they signed. All this is attempted under the disguise of explaining the consideration. It is so thoroughly settled that the consideration subject to explanation is a monetary and not a contractual one, that it is unnecessary to enter into an extended re-examination of that matter. It may be remarked that while the contract calls for a sale of “all the pianos, piano-players,” etc., the effort of the answer is to contradict *26the plain statement of, “all the pianos,” and to interpose exceptions to that language. For instance, the answer says, in so-called explanation of the consideration :
“That said plaintiff would receive and pay to defendant in cash the actual inventory cost, with freight charges on all pianos and other musical goods then ordered and not yet received by defendant that defendant should desire or ash plaintiff to receive” ; and further:
“That defendant was to have the right to receive and resell all goods of every description commonly known as reverts, that had been previously disposed of by defendant.”
All of this outlines the position of the defendant in his answer to be that not all of the goods were sold, but only such as he himself should desire to sell. If such efforts are to be countenanced, it would be child’s play to reduce a contract to writing, and would operate as a virtual repeal of Section 713, Or. L.
The plaintiff Bellamy attacks the opinion in the feature contained in this excerpt:
“As a preliminary matter, it is objected that the plaintiff Bellamy has no right to rely upon the covenant made by the defendant with the plaintiff Coker, not to .engage in business. Such a covenant does not run with the business of dealing in personal property like covenants run with the title to realty. So long as Coker remains in business, he will have a right to enforce the covenant, but he cannot transfer that privilege to Bellamy.. The decree was right in dismissing the suit so far as it applied to the plaintiff Bellamy.”
6. While the case of Hillman v. Shanahan, 4 Or. 161 (18 Am. Rep. 281), has been so applied as to support the declaration in this paragraph that Coker *27could not transfer the covenant to Bellamy, and while it is true that the covenant in question does not run with the physical property as covenants of warranty run with land but is only appurtenant to and protective of the business and goodwill included in the contract, by the great weight of precedent the true rule is that such a covenant is assignable with a subsequent sale of the business and goodwill by the original vendee and that it will pass to the new purchaser as an incident of the latter sale. In brief, the covenant does not run with the tangible chattels kept for sale so that each buyer, of all or any of them, would have a right to restrain the covenantor from again engaging in the business in La Grande. As said in Francisco v. Smith, 143 N. Y. 488, 493 (38 N. E. 980, 981):
“Such an agreement is a valuable right in connection with the business it was designed to protect, and going with the business it may be assigned, and the assignee may enforce it just as the assignor could have enforced it if he had retained the business. The agreement can have no independent existence or vitality aside from the business.”
The whole subject is discussed in Sickles v. Lauman, 185 Iowa, 37 (169 N. W. 670), as reported in 4 A. L. R. 1073 and notes. It would be competent for a purchaser of a stock of goods together with the business and goodwill thereof to sell the goods without in any way transferring the title to the business and goodwill, so that he could continue in the same business in the same place. In order for Bellamy to maintain this suit, he must, as between himself and Coker, show privity of estate in, or title to, the business and goodwill thereof mentioned in the contract.
*287. We will examine the complaint to see whether or not he is entitled to claim under the contract made between Coker and Richey. The amended complaint states:
“That on and prior to the fifteenth day of January, 1920, the plaintiff R. TI. Coker was transacting a retail music business for gain and profit at La Grande, Union County, Oregon, under the name of Eastern Oregon Music Company, and ever since said date and up to the time of filing this amended complaint, and at the time of the filing of the complaint herein, has been and now is conducting said business at La Grande, Union County, Oregon, under said firm name and style of Eastern Oregon Music Company, except that on and since the twenty-second day of May, 1920, the plaintiff T. K. Bellamy has owned a one-half interest therein, and now, and since said date, plaintiffs have been partners in such business.”
The true interpretation of this excerpt is, that until May 22, 1920, Coker was the Eastern Oregon Music Company, and the Eastern Oregon Music Company was Coker, and that he was conducting a business entirely distinct and separate from that business carried on by Richey. It is also plain from this excerpt from the complaint that it was the Coker business and none other, in which Bellamy became a partner. Further on in the complaint is described the business carried on by Richey “for many years prior to the fifteenth day of January, 1920, and it is said:
“That on said fifteenth day of January, 1920, for a valuable consideration, the said defendant sold and delivered to this plaintiff, R. H. Coker, all' the pianos, ’ ’ etc.
The only subsequent phrase in any way intimating that Bellamy acquired any title to the Richey business is the further statement:
*29“That, in consideration of said covenants and agreements of said defendant, plaintiff Coker purchased said business, goodwill and stock of the defendant known as Eichey Piano House, and ever since said fifteenth day of January, 1920, these plaintiffs, as successors in interest of said business and rights, have been engaged in the said retail music business,” etc.
In the first place, to say that the plaintiffs have been engaged in the retail music business ever since January 15, 1920, is contradictory of the previous allegation of the complaint that Bellamy has owned a half interest therein since May 22, 1920. To say that the plaintiffs, “as successors in interest of said business and rights,” have engaged in business, is but to state a conclusion. In other words, while Bellamy might assume to act as successor in interest, his right to do so is not disclosed by appropriate averment. In brief, while the complaint shows that Coker purchased the stock of musical instruments together with the business and goodwill of the Eichey Music House, it does not appear in the complaint that he afterwards transferred any part of the same to Bellamy. So far as appears in the complaint, it would have been perfectly competent for Coker to take Bellamy as a partner in the original Coker business and to carry on for himself alone the original Eichey business, or to close it up without further operation. The result is, that so far as Bellamy is concerned, he has shown no right or interest in the business and goodwill formerly owned by Eichey and afterwards transferred to Coker. Hence there was no error in dismissing the suit as to Bellamy, but for reasons different from that inartifieially assigned in the objectionable excerpt from the opinion already quoted.
Objections overruled March 14, 1922. (204 Pac. 947.) Messrs. Ivanhoe S Bingo, for the motion. Messrs. Cochran & Eberhard, contra.We adhere to the result of the former opinion, and both petitions for rehearing are denied.
Rehearing Denied.
On Objections to Cost Bill.
PER CURIAM.On appeal by the plaintiffs the decree of the Circuit Court was reversed and the plaintiff Coker was allowed the costs and disbursements ■ of the litigation, but they were denied as to the other parties. The plaintiff Coker filed his cost bill, including, items for the expense of transcript, filing fee, printing abstract, printing brief, trial fee, costs and expense of transcript of testimony. This statement of his costs and disbursements was verified as follows:
“State of Oregon,
County of Union, — ss.
“I, Colon R. Eberhard, being first duly sworn, say: I am one of appellants’ attorneys in the above-entitled cause; and except fees of officers, the disbursements set forth above have been necessarily incurred by the appellant who is entitled to recover the same from the respondent.”
This' was signed and sworn to by the affiant attorney before a notary public.
*31The defendant made a uniform objection to each item. The first is a replica of all the rest, except as to the name of the item and the amount:
“Respondent objects to the allowance of the item of $1.50 designated ‘Cost of Transcript’ for the reason that said item was not paid or incurred by appellant Coker. Respondent also .objects to said item for the reason that said cost bill is not properly verified in that it is not stated in said verification that appellant Coker paid or incurred the same or that he is entitled to recover the same. Respondent also objects to the allowance of said item for the reason that appellant Coker had disposed of all interest in the business of the Eastern Oregon Music Company and in this litigation prior to the date of the service of the notice of appeal herein.”
8. The verification is in the exact form directly approved by this court in Morris v. Rodgers, 26 Or. 578 (38 Pac. 931), and Cunningham v. Friendly, 76 Or. 17 (147 Pac. 752), and must be held sufficient.
“A disbursement which a party is entitled to recover must be taxed whether the same has been paid or not by such party”: Section 569, Or. L.
9. One of the consequences of the decree from which the appeal was taken was that the plaintiff Coker was cast in costs and disbursements, besides having his suit for injunction dismissed. Prom this decree he had a right to appeal, although he may have previously sold his stock of goods. He secured in this court a more favorable decree, in that the decree of the Circuit Court was reversed and he was allowed'the costs and disbursements of the litigation. The decree of the Circuit Court against him for costs and disbursements prevents the litigation from involving a mere academic question which the defendant claims is the consequence of the sale of the stock of goods formerly owned by the plaintiff!
*3210. Moreover, if the matter had assumed that mere theoretical shape, that circumstance should have been suggested by the defendant before, or at least at the time, the cause came on for hearing in this court. The amount of each item is not otherwise questioned.
The objections to the cost bill are not well founded, and the costs and disbursements will be taxed according to the bill filed by the plaintiff Coker.
Objections Overruled,