any sizable payment for goodwill would have been very unlikely. In fact, as matters turned out, the fourth defendants, A. Olby & Son Ltd., part of what was called "the Olby empire," within weeks of the sale of the relevant business (which was being carried on as A. Olby & Sons), for reasons which they were in law entitled to adopt, did take a course which in practice saw to it that any goodwill of the business sold was recovered for the empire and got back into the hands of the fourth defendants. For, when the plaintiff raised the question of whether he had not been tricked by the first defendant, the fourth defendant cut off his supplies and set about canvassing the customers of the business sold. We have the benefit of having seen a letter signed by a director of the fourth defendant which contains, among other things, two lists, "B" and "C" and refers to them as follows: "The list marked 'B' contains accounts which dealt with Epsom" -- that is to say, the business sold -- "and Mr. Coombe was instructed on February 20, 1964, to call on those customers on behalf of Penge. As regards list 'C,' also containing Epsom accounts, another gentleman was asked 'to call on behalf of Penge' (i.e., the fourth defendants) as from the same date." I mention those facts because, while that defendant was in law entitled to take that course, it does demonstrate the risks which a purchaser of the business sold would take and would thus have a bearing on what is the proper measure of damages if one had in this instance to make a separate
13 assessment of the value of the business sold, as Mr. Smout submitted. In practice, however, any value it had is taken into account in the balance worked out by Winn L.J. Now, turning from the general picture to figures, for my part I do not wish to add anything to what has been said on detail by Winn L.J. I would only add that making my calculations, at times by a slightly different route, from that taken in the course of his judgment, I came to a figure within a very small margin indeed of £5,500, before I had heard any of the questions put to or answers given by Mr. Doyle to certain matters in this court. That figure of £5,500 seems the right figure, purely on the basis of those facts which were, we have been told, in evidence before the trial judge: it has been reached on a broad basis, and it is one with which I find myself in full agreement. Appeal allowed. Judgment for £5,500 instead of £1,500, with all plaintiff's costs. Leave to appeal on the amount of damages refused. Solicitors: George & George. M. M. H.
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- Summer '17
- Law, Herbert Leonard Doyle