I. Counsel practically agree that the goodwill of a partnership in a settlement of the account between a retiring partner and one who continues the business may constitute a valuable asset, which must be accounted for. The authorities, without exception, so hold. But there is a contention between counsel as to whether the good-will of the firm of C. W. Dorr & Co., passed by the assignment to the assignees, and by the sale to the plaintiff, and, if it does, it is contended by the appellant that the plaintiff did not obtain for all time the right to the exclusive use of the name of C. W. Dorr & Co., as against C. W. Doit. It is conceded by counsel for the appellee that the plaintiff did not, by its purchase, obtain any exclusive right to the business in which it is engaged. It is also conceded that C. W. Dorr had a perfect right to engage in such business, but it is insisted that he cannot use the name of C. W. Dorr & Co.
Giving to the petition a fair, and, in fact, a liberal, construction in favor of the plaintiff’, it cannot, we think, be said that “C. W. Dorr & Co.” constituted a trade-mark which the plaintiff purchased. The most that can be said is that the firm of C. W. Dorr & Co., had an extensive business reputation, and accumulated a large stock of goods, and this stock of goods and the good will of the business, it will be conceded, the plaintiff purchased. But the firm had no trade mark, nor is it stated that the house or place of business was advertised and known by any distinctive name; and, if the petition can be so construed, it appears from the record that such place of business was not obtained by the purchase from the assignee. This fact distinguishes this case from Hudson v. Osborne, 39 Law J. Ch. (N. S.), 79. In the cited case the bankrupt had a *485plaee of business designated and known as “Osborne House,” of which the, plaintiff became the owner, in pursuance of proceedings in bankruptcy against the defendant, whose name was Osborne; and he was enjoined from designating his place of business, after his discharge, as “Osborne House.” In Croft v. Day, 7 Beav., 84, it is said that each case of this character must depend upon its peculiar circumstances, of which there may be a great variety. The clearly distinguishing feature of this case from the most of the authorities to which our attention has been dkected, is that the plaintiff has not adopted, conceding it had the right to do so, the name of “C. W. Dorr & Co.” At most, it only claims to be the successor of C. "W. Dorr & Co., and the right to use the labels, bags, etc., which it purchased. It may be that its claim in this respect is well founded, but it does not necessarily follow that it can prevent the defendant from using that name when the plaintiff has not at any time transacted business in such name. It certainly, by its purchase, did not acquire any right to the name of “C. W. Dorr,” nor did it acquire his business knowledge and experience.
C. W. Dorr clearly has the right to go into business in his own name, and we cannot see why he cannot do so under the name of C. W. Dorr & Co., unless in so doing he misleads the public, or encroaches on the rights of the plaintiff. The mere fact that the latter claims to be the successor of a firm of the same name should not, it seems to us, deprive the plaintiff of such right. There is another circumstance entitled to weight. Seeds and plants are grown and ordinarily produced from year to year. Peculiar skill in cultivation may increase the quantity of the former, and the thriftiness of the latter. 'Whether the seeds so produced will grow is not absolutely certain. We can readily see that it may require peculiar knowledge and experience to tell whether the seeds will germinate or not. Now, if Dorr possesses such knowledge, or if the public so believe, the plaintiff has no right thereto, and therefore it has no right to restrain Dorr from availing *486himself thereof, if it be to his interest or advantage to do so. "We have examined all the authorities cited by counsel, and, in our opinion, the facts in all of them are so materially different that they are not applicable, except so far as general principles applicable to this class of cases are announced. They simply indicate the path which may be followed to advantage. Reference, however, is' made to Burgess v. Burgess, 17 Jur., 292; Glen & Hall Manuf'g Co. v. Hall, 61 N. Y., 262.
We think the court erred in granting the injunction.
REVERSED.