NOTES. 479 Here the defendant's agent, who had already written to the defendant informing him of an offer, wrote a second letter to his solicitor, putting him in communication with the buyer's solicitor. The Court refused to connect the two letters. This seems to point to the older rule that the signed document must refer to some other writing, not simply to the transaction generally. It may be doubted whether the English courts have been justified in stretching the doctrine of incorporation by reference to the extent to which the cases of Studds v. Watson and Oliver v. Hunting appear to go. While one may well enough be held to have adopted and signed a paper to which he has in a signed writing referred, it is at least going far to say that the signature can be carried over and attached to a writing which is not connected with the first in any other way than that it is a part of the same transaction. The foregoing considerations are submitted as applying to a case where an unsigned document is sought to be incorporated into one that is signed. When both are signed, there should be no necessity for connecting the two ; for the defendant has subscribed his name to all the requisite terms, and this would seem to be all that the statute requires. This view has been taken in Thayer v. Luce (22 Ohio St. 62), and on this ground Potter w, Peters might well have been decided differently. May the Vendor of the Goodwill of a Business Solicit his old Customers? — What passes by the sale of a goodwill of a business? What obligations are imposed on the vendor by reason of the sale ? These troublesome questions have again been raised in the case of Trego V. Hunt, 12 The Times L. R. 80, decided last December in the House of Lords. Th« decree in the case restrained the vendor of the goodwill from soliciting the trade of his old customers in person, by agents, or by letter. The case of Labou'chere v. Dawson (L. R. 13 Eq. 322), decided in 1874 by Lord Romilly, M. R., and overruled twelve years later in the Court of Appeals by Pearson v. Pearson (27 Ch. Div. 145), is re-established, and Pearson v. Pearson is in turn overruled. The reasoning is this. A vendor of the goodwill sells the benefit of the connection of his concern, that is, the chance that the customers will continue their patronage. It is obvious that by solicitation of the old customers, the vendor, on setting up a similar business, may greatly lessen the purchaser's chance of retaining that patronage. But a man may not depreciate what he has sold : there- fore the vendee of the goodwill is entided to protection, and his vendor will be restrained accordingly from soliciting the old customers. " It is immaterial," says Lord Herschell, "whether the obligation on the part of the vendor to refrain from canvassing the customers is to be regarded as based on the principle that he is not entided to depreciate that which he has sold, or as arising from an implied contract to abstain from any act intended to deprive the purchaser of that which has been sold." Of course, a logical application of either principle would carry the courts far be- yond restraining a mere solicitation of old customers. This fact is recognized ; but it is acknowledged that it is now too late to question the authorities which establish the vendor's right to set up a similar business {Shackle V, Baker, 14 Ves. 468), to advertise his business and sohcit cus- tomers in any public way {Labouchere v. Dawson, L. R. 13 Eq. 322), so long as he does not use the firm name, or represent that he is continuing 63
