Appeal, No. 27, Jan. T., 1955 from decree of Court of Common Pleas of Delaware County, Nov. T., 1952, in Equity, No. 352, in case of Kirk Foulke, et al., trading as H. Hessey Miller v. H. Hessey Miller et ux. Decree affirmed.
Wm. Chas. Hogg, Jr., for appellants.
Paul C. VanKyke, with him James A. Cochrane and Cochrane & VanDyke, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
This case arose by a bill in equity for an injunction. The basic issue is: Did the agreements which prohibited defendants from dealing in cinders and cinder aggregates include slag?
The defendant, H. Hessey Miller, and his wife formerly owned a cinder business in the City of Chester, Pa., and traded under the name of "H. Hessey Miller". On or about January 1, 1943 Miller and his wife sold to plaintiffs a one-half interest in their business, which was described as that of "buying, selling and dealing in cinders and cinder products." The purchase price was $20,000. Pursuant to this written agreement plaintiffs and Miller and his wife entered into a written partnership agreement dated April 1, 1943, in which Miller agreed not to engage in a similar business within 300 miles of the City of Chester for a period of ten years.
On or about January 1, 1944 the defendants by written agreement sold to plaintiffs their remaining one-half interest in the business for the sum of $20,000. and their partnership was dissolved. Defendants in and by this 1944 agreement sold to plaintiffs "all of our interest of every kind and nature whatsoever of, in and to the above-mentioned business, and all assets of every kind and nature whatsoever in connection therewith."
Defendants also covenanted that neither of them would directly or indirectly, as an individual or as an officer or employee of a corporation, engage in the business of buying, selling or dealing in cinders or
cinder aggregates, or use the name of "H. Hessey Miller" in the business of buying, selling or dealing in cinders or cinder aggregates.
The Chancellors found that a substantial part of the purchase price was paid for the good will, the right to the exclusive use of the name "H. Hessey Miller", and complete freedom from interference or competition by Miller in any phase of the business for a period ...