
    Burckhardt v. Burckhardt.
    1. Where the property of a firm, including the good-will, was purchased by one of the members for a gross sum, the consideration named in a deed for the couveyance of the real estate, which was inserted by counsel for the mere purpose of determining the revenue stamp required, does not destroy or sever the entirety of the consideration for the purchase, as fixed by the contract of sale.
    '2. In an action by the purchaser of the good-will of a firm, for a breach of the contract of sale, the measure of damages is not the amount of improper solicitation of the customers of the old firm, irrespective of its effect upon the business of the purchaser. The damages should be measured by the injury sustained, and not by the ineffectual attempts to injure.
    ■3. Where the cause of action in favor of the purchaser is founded on a contract, in part performance of which a mortgage was given by him-to the vendor, his cause of action can be asserted, by way of counterclaim, in an action brought by the vendor to foreclose the mortgage. But whether the claim of the purchaser is sought to be enforced by an independent action, or by way of counter-claim, the measure of damages is the same.
    4. Where actions have been improperly consolidated, and the petition in one case ordered by the court to stand as an answer and counterclaim in the other, informalities in the pleading, as a counterclaim, after issue and trial, are not grounds for the reversal of the judgment.
    Error to the Superior Court of Cincinnati.
    The original action was brought by Leopold Burckhardt, the plaintiff in error, against Frederick Burckhardt, the defendant in error, to foreclose a mortgage on real estate, given to secure the payment of two promissory notes, each for the sum of’ $27,666.66|. The notes and mortgage were dated October 25, 1871.
    The prayer was for the sale of the mortgaged property and the application of the proceeds to the payment of the-notes.
    During the pendency of the action the court, on the motion, of the defendant, Frederick Burckhardt, ordered another suit, previously pending between the same parties, and in which lie-was plaintiff, to be consolidated with this, and that the petition in that case “stand as an answer and counter-claim to the-petition in this case.” To this order an exception was taken by the plaintiff.
    The petition thus ordered to stand as an answer and counterclaim is as follows:
    “ This plaintiff says that for many years prior to the 16th day of October, 1871, he was engaged in business with the defendant, Leopold Burckhardt, as partner, in the city of Cincinnati, county of Hamilton, and state of Ohio, under the firm, name of ; Burckhardt & Co.’ The plaintiff further says, that the business of said firm consisted chiefly in the manufacture- and sale of lard oil and stearine, and in the receipt upon • consignment and sale of petroleum and coal oils, in the city-aforesaid. And the plaintiff says that the said business had’ grown up and become extensive, and the name of said firm had. 'become favorably and well known in the community. And the said firm had trade-marks and brands, that lia'd become-well known in the trade, and had a line of consignors of’ petroleum and coal oils, who relied upon the business reputation and standing of said firm as an inducement for consignment to said firm for sale of large amounts of petroleum and coal oils manufactured by said consignors. And the said firm had introduced into the market and had made known the oils-so consigned to them by the brands and names of the manufacturers, and had built up a large and extensive and profitable-trade in, and market for said oils, as well as for the stearine- and lard oils manufactured by the said firm of Burckhardt <&: Co. And the said firm had employed and instructed divers. persons who had become skilled and experienced in the different departments of the business conducted by the said firm,, and had acquired the good-will and favor of shippers and con-' signors of said merchandise, and the confidence and custom of consumers and dealers therein.
    “ The plaintiff further says that the said -business was carried on in premises owned by said firm, to wit: lots Nos. 224, 225, 226, and 227, being eighty feet in front on the west side of Sycamore street, between Third and Fourth streets, and running back to-Hammond street, in said city of Cincinnati, with the buildings thereon, and with the furniture, fixtures, machinery, and utensils used in said business.
    “ The plaintiff further says, that about the 16th day of October, 1871, the defendant and this plaintiff mutually agreed to dissolve the said partnership, and thereupon the said defendant, Leopold Burckhardt, in consideration of the sum of forty-five thousand dollars, sold and conveyed his interest in the said premises and real estate to this plaintiff, and in consideration of the further sum of thirty-three hundred and forty and 13-100 dollars, sold and conveyed his interest in the merchandise belonging to the said firm to this plaintiff. And in consideration of the further sum of thirty-eight thousand dollars, he sold and conveyed to this plaintiff the good-will of the said business theretofore done and carried on by said firm in said firm name, and stipulated and agreed with this plaintiff that he, the defendant, should not thereafter do business by or under the name of Burckhardt & Co. in the city of Cincinnati aforesaid.
    “ And the plaintiff further says, that at the time aforesaid, in part payment of the said consideration, he, the said plaintiff, executed and delivered to the defendant his two negotiable promissory notes, dated October 28, 1871, payable respectively in one and two years from the date thereof, each of said notes for the sum of twenty-nine thousand three hundred and forty and 50-100 dollars ($29,340.50), and on the same day this plaintiff executed and delivered to the defendant a mortgage upon the real estate and premises hereinbefore described, to secure the payment of said notes. And the balance of said purchase-money this plaintiff then and there paid to the defendant in cash. And this plaintiff has ever since continued to carry on the said business at the same place and under the said firm name of Burckhardt & Co.
    “ And the plaintiff further says, that immediately thereafter, the defendant, in' violation of his said agreement and of the terms of said sale to this plaintiff, and for the purpose of injuring this plaintiff, entered into the business of receiving and selling petroleum and coal oils and of stearine and lard oils in the city of Cincinnati, under the name and style of ‘L. Burckhardt & Co.,’ and has ever since continued the same, and held himself out -to the community, and to the persons engaged in trade with the said original firm of Burckhardt & Co., as the successor to said firm. And the defendant has caused bill-heads, cards, circulars and brands to be made and printed in imitation of the bill-heads, cards, circulars and brands of the said original firm of Burckhardt & Co., that were calculated and intended to deceive the public and the customers and consignors, and those who had theretofore dealt with the said firm of Burckhardt & Co., and to induce them to believe that he was carrying on and continuing the business of said original firm of ‘ Burckhardt and Co.,’ and the defendant, by promise of reward and otherwise, enticed away the employees of said firm, who were employed and instructed by said firm and acquainted with their customers and trade, and held out and represented to the consignors of oils to said firm and to the customers thereof, that he wras entitled to do the said business, and in every possible manner attacked, injured and destroyed the good-will of the business that he had so sold and conveyed to this plaintiff, whereby the good-will of said business was wholly destroyed and rendered of little or no value to tiie plaintiff. And the plaintiff avers that the consideration of said sale and of said promissory notes to the extent of the sum paid for the good-will of said business, and the exclusive right to said firm name, has thereby wholly failed and been lost to this plaintiff.
    “ The plaintiff therefore prays that the defendant may be restrained from negotiating or .transferring the said promissory notes and mortgage. That they may be required to be brought into court, and, to the extent of the sum paid for the good-will ■of said business and the exclusive right to said firm name, that they may be adjudged to be canceled by the court, and ordered to be so far satisfied; and for all other proper relief in the premises to which the court may find this plaintiff •entitled.”
    To this pleading the plaintiff, Leopold, filed the following reply:
    “ The plaintiff, for reply to the petition filed in another action by the defendant against him in this court, No. 29,017, and which by order of the court, he is required to take as the defendant’s answer in this action, says it is true that the firm of Burckhardt & Co., therein mentioned, did receive and deal in con■signments of refined petroleum and carbon and lubricating ■oils, but that their principal business, from which their profits and good-will were mainly derived, was the manufacture and ■sale of lard oil and stearine. And it is true that in the dissolution of said firm and the sale by him to the defendant of their stores and factory and the chattel property used therein, the good-will and exclusive use of their firm name was also included, but it was with the reservation, clearly expressed in .said agreement and sale, that plaintiff should have the right to •carry on the same business in the city of Cincinnati, either in his own name or in any name and style other than that of Burckhardt & Co.,’ and the true agreement in that respect is not set forth in the defendant’s said petition.
    “ Plaintiff denies that the good-will and use of the firm name was sold and conveyed by him to the defendant for the consideration of $38,000, or for any specific or several consideration, .and denies that the two promissory notes and mortgage, which were made to him by the defendant and referred to in his said petition, were made upon any such agreement, intent or understanding. But on the contrary he alleges, and the defendant well knows, that the said two notes, which are for the sum of $27,666.66 each, and not $29,340.50 as stated in said petition of defendant, and are dated October 25th and not October 28th, were executed and delivered to him by »the defendant as part of the price of $83,000, then agreed to-be paid by the defendant as the consideration for the sale and conveyance to him, in gross, of the plaintiff’s share or half of the said stores and factory, and the machinery, utensijs, furniture, packages and chattels used by said firm in carrying on their business, it being also agreed that in the conveyance-thereof the good-will and exclusive use of the name of said firm, subject to the right of plaintiff, as already stated, to do business in his own name or in any other than the name of Burckhardt & Co., should be included therein; and the said price of $83,000-was paid by the defendant, one-third in cash, and the other two-thirds by his said two notes for $21,666.66 each, made to .the plaintiff, and payable with interest in one and two years from, their date respectively.
    “ Plaintiff further replying, says, that some months after the-said dissolution and sale he entered into and is still engaged in business as a commission merchant in said city of Cincinnati, dealing chiefly in refined petroleum and carbon and lubricating-oils, and although he had full right to use the name and style-of L. Burckhardt & Co., if he had chosen so to do, in carrying on said business, yet he has purposely refrained from so doing, and has conducted his business under the name and style Of Leopold Burckhardt & Co. He denies that he has enticed away any employee of said firm, or used the name and style of Burckhardt & 'Co., or used or imitated the bill-heads, cards, circulars or brands of said firm, or in any manner held himself out to the community or to.persons formerly dealing with said-firm of Burckhardt & Co., as the successor of said firm, or committed or used either or any of the acts or practices alleged, in the defendant’s said petition, or has been guilty of any act. or conduct, as therein charged, calculated or intended to deceive the public and the customers^ and consignors, and those-who had previously dealt with said firm. He denies the pretense in the defendant’s said petition, that he, the plaintiff, is-not entitled to carry on or compete with the defendant in the same business in which the said firm of Burckhardt & Co. had previously been engaged; and that he entered into business for th^ purpose of injuring the defendant. He denies that he has, at any tim'e or in any manner, as charged by the defendant,, violated the stipulations or articles of his said agreement with, the defendant, or either or any of said articles and stipulations, lie alleges that he has not since their dissolution been engaged in the manufacture of lard oil and stearine, although fully entitled so to do, and has left all advantage thereof thus far to the-defendant; and the defendant’s charge that he, the plaintiff, has- ‘ wholly destroyed and rendered of little or no value ’ the goodwill so sold and conveyed by him to the defendant is wholly unfounded.
    “ Plaintiff denies each and all charges alleged against him in the defendant’s petition and not herein otherwise answered,, and prays judgment against the defendant.”
    On the trial, at the January term, 1875, the following findings and decree were entered:
    “ This cause coming on to be heard upon the pleadings and! the testimony, as certified by the judge at special term, and the argument of counsel, and the court being fully advised in. the premises, finds the issues joined for the defendant, and further finds that, on the 16th day of October, 1871, the plaintiff and the defendant made the following agreement in writing,, to wit:
    “ ‘Whereas, Leopold Burekhardt and Frederick' Burekhardt. are partners as Burekhardt & Co., now, therefore, they mutually agree, each with the other, to dissolve the said partnership, upon the following terms and conditions :
    ‘“1. They agree to meet upon the twenty-sixth day of October, 1871, at the office of Stallo & Kittredge, and in the presence of E. W. Kittredge and Rufus King, to bid each with and against the other in like manner as at a public auction,, for the following property, to wit:
    ‘“The real estate consisting of lots Nos. 221, 225, 226 and 227, being eighty (80) feet front on the west side of Sycamore-street, between Third and Fourth streets, in Cincinnati, and. running back to Hammond street, with all the buildings and improvements thereon, mcl/uding the fixtures, machinery,, utensils, furniture, packages, and chattels used by said firm; in the conduct of its business, but not including the stock of ■oil, lard and stearine, or other merchandise, and the packages containing it, appertaining to the said business, nor the other property or assets of said firm, not in use upon the premises; .and they hereby agree, each with the other, to sell the said premises and property to the one bidding the highest price therefor, at said time and place, the party buying agreeing to pay the half of the price bid to his copartner, one-third of the price so ascertained in cash 'within thirty days, and the balance in equal notes bearing six per cent, interest, payable in one .and two years, to be secured by a mortgage upon said real estate; and the party selling agrees to execute a good and sufficient warranty deed of his interest, with a release of dower in .said premises, to the party buying, and to transfer said personal property so to be included in said'bidding and sale, together with the good-will of the business heretofore done and carried on by said firm'in said firm-name, and to stipulate therein, that the party selling shall not thereafter do business “under the ■name of Burclchm'dt <& 6To.,”in the city of Cincinnati, but reserves the right to cany on business in his own name, or under .any other name and style than that of “Burckhardt & Co.”
    “ ‘2. The parties agree, before the time of bidding on said premises, as stipulated in the preceding provision, to have made' an invoice of the merchandise on the premises, not included in said sale, and that the party buying said real estate, may, at his option, take the merchandise so invoiced, at its invoice price, and pay his copartner the one-half thereof in cash in sixty days from the said twenty-sixth day of October, .and in the event the party buying shall not elect to purchase said merchandise, it shall be sold on their joint account.
    “‘3. Of the goods held by said firm on consignments the party buying said real estate shall sell said goods and receive all the commissions and charges accruing thereon, after the ■said 26th day of October, 1871; not including, however, the interest upon the advances on such consignment.
    “‘4. The other property and assets of said firm, of every kind, shall be collected and adjusted and divided by both the parties, and the business liquidated upon equal terms. Each ■of them to deposit in the Commercial Bank all moneys and bills receivable by him collected, to account of “ Burckhardt & Co., in liquidationand a division to be made as often as the deposits accumulate, and as either party may request.’
    “ Signed, sealed and witnessed October 16, 1871. The italicizing above indicated being as in the original.
    “The court further finds that, on the 26th day of October, 1871, Frederick Burckhardt bid $166,000 for the property, under such agreement, and became the purchaser, and liable to pay Leopold therefor $83,000, as stipulated in the agree: ment. Leopold, by a general warranty deed, conveyed his undivided half of the real estate to Frederick for the consideration expressed in the deed, of $45,000, which would make the entire realty $90,000. This value was fixed, in order to affix the proper revenue stamp upon the deed — the federal law, at that time, requiring a deed for real estate to be stamped according to the actual value of such realty. This, as there is no evidence of a greater value, must be taken as the true value of Leopold’s half of the real estate.
    “Thefixtures, machinery, &c., were invoiced (valued) by the parties at $5,800, and the furniture at $200, making $6,000 for them, or $38,000 for Leopold’s half of all the partnership property, other than the real estate proper, sold by him to Frederick under the agreement, which left $35,000 for ‘ the good-will of the business’ theretofore ‘done and canned on by said firm in said firm-name,’ and for Frederick’s right thereafter to the exclusive use of the old firm-name of Burckhardt. & Go. Leopold’s half of such good-will and interest in the old firm-name, and his half of such fixtures, machinery, &c., he, for the sum of $38,000, conveyed to Frederick, by another writing, bearing date October 25, 1871. It reads:
    “‘Be it remembered, that in consideration of thirty-eight thousand dollars ($38,000) to me paid by Frederick Burckhardt, in pursuance of the agreement between us, dated October 16, 1871, receipt of which is hereby acknowledged, I, Leopold Burckhardt, do hereby sell, assign and set over to the said Frederick Burckhardt, my moiety, and all the right, title and interest to me belonging, of, and in all the fixtures, machinery, utensils, furniture, packages, and chattels heretofore used by us, as partners, under the style and firm of Burckhardt & Co.; also, the good-will of said partnership and business, subject to the reservation in that behalf stipulated in said •agreement.’
    “ There can be no doubt, then, that the value fixed by the parties, themselves, upon the good-will and the right to use 'the old firm-name of Burckhardt & Co., was $70,000, for the half of which, $35,000, Frederick agreed to pay Leopold. We find that was the amount. We further find that the notes •and mortgage set forth in the petition and supplemental petition were executed in pursuance of said agreement, for two-thirds of the purchase price of said property.
    
      “ The court further find and hold :
    
      “First. That Frederick purchased from Leopold the latter’s half of the real estate, fixtures, machinery, &c., the good-will •of the business theretofore carried on by the old firm, in the name of Brrrckhardt & Co. (and not merely the good-will attaching to the premises upon which such business had been so •carried on), and the exclusive right thereafter to the use of the.name of ‘ Burckhardt & Co.’ as his trade-mark.
    “ Second. That he bid for and purchased them all for $83,000, and that Leopold has failed to give him, or has daprived him of the exclusive benefit, use and enjoyment •of such good-will and such firm-name of Burckhardt & Co.; that the real estate sold by Leopold was only of the value •of $45,000, the fixtures, machinery, furniture, &c., $3,000, ■and that $35,000 was the value of such good-will and firm-name as a trade-mark, as fixed by the parties in this transaction.
    “ Third. Whether, in point of fact, Leopold is entitled to recover from Frederick no part of such sum of $35,000, or whether he is entitled to recover part of it, and, if so, what part, we do not now undertake to' determine. That must be •done by a master, upon a reference of the case to him upon the testimony now before tos, cmd stock other testimony as the parties ma/y adduce before him upon the subject of the extent of the deprivation or damages sustained by Frederick, by 
      
      .reason of the premises. The master will determine such question upon such evidence, not requiring the defendant to make proof, as of a bill of particulars, of his injuries, but upon the testimony applied to the case in view of the nature of the subject; to which and to all the circumstances, he will give due weight and consideration. lie will be required to report to the next general term of this •court.”
    A motion was duly filed to set aside the above findings and •decree as against the law and as against the evidence in the ■case. The motion was overruled and a bill of exceptions taken embodying all the evidence.
    The way $15,000 came to be inserted in the deed as the ■consideration for the real estate, appears from the following statement of Rufus King, which was received on the trial as ■evidence.
    
      “ The bidding, which took place October 25, 1871, at the •office of Messrs. Stallo & Kittredge, resulted in the sale to Frederick Burekhardt of their entire property, except as ■qualified in the articles of dissolution, for the price of $166,000, one-half of which was, therefore, to be paid by him to Leopold Burekhardt. When drawing the conveyance of their factory and stores, I suggested to Mr. Kittredge that Leopold Burekhardt ought not to be required to pay the stamp tax upon this entire sum, and suggested that the land and buildings be estimated at $90,-000, and with his consent, I put the consideration of the deed at half that sum, viz., $15,000. Subsequently, in drawing the transfer of the fixtures, machinery, chattels, good-will, &c., by another instrument, I assumed the remainder of the entire price, viz., .$38,000, as the consideration. There was no apportionment or estimate as to the value of the good-will. Nothing was said about it in this division of the price of $83,000. This severance was entirely my own suggestion, and merely for the purpose of ■avoiding the unnecessary excess of stamps to be put upon the deed.”
    The following order was also entered for the government of the master:
    
      “ In the matter of the application of the master, to whom this case was referred for instructions, he is instructed to admit and receive such testimony upon the questions referred tollina as he may find to be competent, and to j>ermit the parties to take exceptions to his rulings thereon, as they may be advised.”
    Among other findings of fact not necessary to be noticed,, the master’s report shows the following:
    “ 1. That the business of the old house of Burckhardt & Co. consisted of sales of carbon oils (including under that general head all the products of petroleum), received on consignment j the sale of small consignments of paraffine wax; the manufacture and sale of lard oil and stearine, and sales of lard oil received on consignment; the sale of whisky received on consignment, or for storage and sale;' the sale of cotton received by the firm as liquidator of E. O. Hurd & Co., with whom it had formerly been in partnership; and the sale of peanuts consigned to it as liquidator of E. 0. Hurd & Co. and as a commission house.
    “ That the sales of carbon oils formed the chief business of the firm, it having introduced and developed the trade in several brands, including the favorite one known as ‘ Crane & Minshall,’ and it having sold from two-thirds to three-fourths of all the refined oil shipped from Marietta and Parkersburg to the Cincinnati market; and that while the profits on those sales were considerably smaller than those derived from lard oil and stearine, yet they were reasonable and good, considering the small capital that was required and invested.
    “That the lard oil and stearine business was the next in quantity, but was the most valuable as respects profits, the firm being manufacturers thereof and making heavy profits thereon, although the introduction and general use of carbon oils rendered the quantity sold comparatively small, and consequently greatly reduced the aggregate of profits arising from it. The consignments of lard oil to it were quite small, and they were from but one party, 0. ICridef, of Louisville, Ky.
    “ That the whiskey business was quite heavy, of which by far the larger part, perhaps nine-tenths, was sales of the ‘ MeGregor ’ brand, of which it was the sole agent. Other lots were received from one Hinde, andL. Stockton & Oo., of Kentucky, for storage and to secure advances, and possibly sale, subject to the consignors’ orders. They also had an arrangement as regards purchases of whiskies for one O’Donnell, of New York, and some small sales were made to him the year preceding the dissolution of the firm. • But this arrangement for purchasing for him is not found to be material in this inquiry.
    “That its cotton business arose from and was solely connected with its liquidation of E. 0. Iiurd & Oo.
    “ And that its business in peanuts not only arose from its connection with E. O. Iiurd & Oo., but from its having sought consignments of the same as a commission house, as is shown by twelve copies of letters attached to the testimony.
    “ 2. That the business of the house of Leopold Burckhardt & Oo. consisted of carbon oils received' on consignment; the sale of lard oil, purchased or consigned, upon which it put its own brands ; some sales of linseed oil; and perhaps a few sales of whisky.
    “ It was not engaged in the cotton business; very slightly, if any, in peanuts; and did not manufacture lard oil or stearine ; and did not deal in stearine.
    “ That the sale of cai-bon oils was its chief business, especially of the ! Crane & Minshall,’ and other brands refined at Marietta and Parkersburg.
    “ That the house of Leopold Burckhardt & Co. commenced business on or about January 15, 1872, and went out of business on or about the last day of July, 1873.
    “ 4. That the whole number of consignors and customers of the old house of Burckhardt & Co., during the year preceding its dissolution, was 401.
    “ That of these 401 firms or parties, 126 were unsolicited by the house of Leopold Burckhardt & Co.
    “ That of these 401 firms or. parties, 97 had failed or were out of business before January 1, 1872, or were not material parties to this inquiry.
    “That the remaining 178 were solicited by the house of Leopold Burckhardt & Co.; that such solicitation was done 
      privately, by letters, envelopes, cards, quotations, or price currents, or personally by Leopold Burckhardt, or his agents or •employees, runners or traveling agents, asking said parties to deal with the house of Leopold Burckliardt & Co., or by specially applying to said- parties, and urging and holding out special and designed inducements to them to leave the successors of the old firm and deal with it.
    “5. That of the customers of the old house who were solicited, nearly all, if not quite all, dealt with the old firm in carbon oils alone, or their purchases of lard oil were very small as compared with those of carbon oils.
    “ That there was no solicitation of any consignors of the old house in lard oil or peanuts; or of its consignors or customers in paraffine wax or cotton ; and the testimony shows only one of its customers in peanuts, to wit, Derby & Co., of East Saginaw, Mich., to have been solicited.
    “ 6. That in making these solicitations, not only did the house of Leopold Burckhardt & Co. seek the share of custom that might have come or belonged to it, by the usages of the trade, among the houses that divided up their oil business among all the firms engaged in the trade, but by lowering prices, underselling, giving longer time for payment, sending samples and statements, and in other ways, strove to take away the trade of customers of the old house from it, and caused a sharper and more bitter competition among the houses engaged in the oil business, than was ever known in this market; and this competition or struggle for purchasers or sales was sharpest and bitterest between the house of Leopold Burckhardt & Co. and that of Frederick Burckhardt, as the successor of the old house.
    “10. That it is clear that nearly every prominent customer of the old house, in carbon and lard oils, and every prominent consignor of the old house of carbon oils and whisky, dealing with it the year preceding its dissolution, was solicited by the house of Leopold Burckhardt & Co.; and that, as a result of such solicitation, the business of Frederick Burckliardt, as successor of the old house, was most seriously affected, and for a time, a large part of it was taken away.
    
      
      “ 11. That the extent of the deprivation or damages sustained by Frederick, by reason of the facts found above, and of Ml of those shown by the testimony in the ease, and froip the testimony applied to the case in view of the nature of the subject, is $28,000, or 4-5ths of the $35,000, the value of the good-will and firm-name as a trade-mark, as fixed by the parties and found by the court.”
    As to the findings of law by which his action was governed in making up his findings of fact, the master reported the ■following:
    “ 1. That the measure ‘ of the extent of the deprivation or damages sustained by Frederick, by reason of the premises,’ is the actual amount of improper solicitation of the customers or consignors of the old house of Burckhardt & Co.; and not the actual loss in money to Frederick from the loss of the business of those Customers or consignors of the old house, who transferred their business from him as the successor of the old house, wholly or partially, to the house of Leopold Burckhardt & Co.
    “ 2. That the $35,000, the sum agreed and found to be the value of the good-will and firm-name as a trade-mark, should be reduced by $28,000, the sum found to be the amount of improper solicitation of the customers and consignors of the old bouse by the house of Leopold Burckhardt & Co.
    “ And that Leopold is entitled to recover from Frederick but one-fifth of said sum.of $35,000, or $7,000, together with interest thereon at the rate of 6 per cent, per annum from ■October 25, 1871, the date of the mortgage and notes set forth in this action.”
    The report of the master shows that he excluded all testimony offered to prove the actual loss resulting to Frederick from the diminution of his business by the improper solicitation of the customers of the old firm by Leopold.
    The following questions propounded on cross-examination to defendant, Frederick, on behalf of the plaintiff, shows the ruling of the master on this subject:
    “ Quest/ion 1. During the year 1871 was your trade in carbon oils a profitable trade or otherwise ?
    
      “ Q. 2. During the year 1872 was your trade in carbon oils-a profitable trade or otherwise ?
    “ Q. 3, Is it not a fact that at the time of the dissolution, and for some time previous thereto, the most valuable portion of the trade of Burckhardt & Co. was in the manufacture and sale of lard oil and stearine, and refined lard %
    
    “ Q. 4. What proportion, if any, of the customers of Burckhardt & Co. in lard oil, stearine and refined lard, at the time of the dissolution, continued to transact their business with that house after the dissolution; and what proportion, if any, transferred their trade from your house to. the house of Leopold Burckhardt & Co. ?
    
      Q. 5. Is it not true that the value of your business in the manufacture and sale of these articles was unaffected by any competition with the house of Leopold Burckhardt & Co., while that house was doing business ; and if the value of said, business was affected by such competition, please state to what, extent ?
    “ Q. 6. What proportion, if any, of the customers of the old house, at the time of the dissolution, subsequently transferred their custom in carbon oils wholly from your house to the house of Leopold Burckhardt & Co.; and if there were any such, state what proportion of them returned their business to your house, when the house of Leopold Burckhardt & Co. ceased to transact business ?”
    The following question was also. propounded to the same witness:
    “ QuesUon 1. Please state what were the net profits of the firm of Burckhardt & Co., the year preceding the dissolution, from lard oil and carbon oil, and what were the net profits of your firm the year succeeding the dissolution, from the same sources. State what proportion of said profits were from- lard oil, and what from carbon oil.”
    All of these questions were overruled, and the evidence sought by them ruled to be incompetent by the master. Information of a like character was sought from other witnesses, but it was excluded.
    
      Exceptions were taken to tbe report of tbe master on tbe .ground of his rejecting evidence as above referred to; and also on tbe ground that bis findings as -to tbe law and tbe facts were erroneous.
    At the February term,1877, tbe exceptions were overruled, tbe report confirmed, and a decree was entered in accordance therewith.
    Tbe object of the present petition in error is to obtain tbe '.reversal of these judgments.
    Among other tilings it is assigned for error (1), that the' •court erred in construing the- contract# of October 16, 1871; ■(2), that tbe court erred in its findings and order entered at tbe •January term, 1875; and (3), that it erred in sustaining tbe rulings of tbe master and in confirming bis report.
    The defendant in error has also filed a cross-petition in.error. The ground of error assigned is that tbe court erred in not Folding that there was an entire failure of consideration to tbe ■extent of $35,000, being tbe agreed value as claimed of tbe .good-will.
    King, Thompson (& Maxwell, for plaintiff in error:
    Tbe plaintiff was entitled to a jury, and a reference to a master against bis objection was error. 17 Ohio St. 596; 26 Ohio :St. 426 ; 30 Ohio St. 50 ; Buckner v. Mear, 26 Ohio St. 514.
    The measure of damages adopted by tbe master was a clear violation of tbe fundamental principle of the law of damages, which is that damages shall be given as compensation for actual ■loss. Mayne on Damages, *6, *12 ; Sedgwick on Damages, *29, *200; 2 Greenleaf on Ev. § 253; 12 Ohio St. 361; Id. 182; 26 Ohio St. 33; 23 Ohio St. 255; 35 Conn. 543; 62 Mo. 180; 1 Fisher, 56 ; 4 B. & A. 416; Brown on Trademarks, § 505; L. R. 1 Eq. Ca. 299.
    The consideration was not severable. Byles on Bills, 99; Daniell on Neg. Inst. § 203; 16 Ohio, 504; 3 Bos. & Pul. 162; 16 Ohio St. 133; 20 Ohio, St. 89; 12 Ohio, 153; 22 Pick. 457.
    As to failure of consideration as a defense, see Mayne on Damages, 123; 2 B. & Ad. 155; Id. 320; 2 Wm. Saunders, 156; 1 Exch. 162; 14 East, 486 ; 26 Ohio St. 33; 23 Ohio St. 272. When failure is only partial. 26 Ohio St. 33 ; 16 Ohio, 504; 3 Ohio, 285. It must be total. Greenleaf v. Cook, 2 Wheaton, 13; Pulcifer v. Hotchkiss, 12 Conn. 234; Washburn v. Picot, 3 Dev. (Law), 390; Elminger v. Drew, 4 McL.. 388; Stone v. Peake, 16 Vt. 213; Kernodle v. Hunt, 4. Blackf. 57; Henton v. Scott, Dudley (Geo.) 245; Wenworth v. Goodwin, 21 Me. 151; Walters v. Armstrong, 5 Minn. 448 ; Morgan v. Richardson, 1 Camp. 40, n.; Tye v. Gwynne, 2 Camp. 346; Anson on Contracts, 285; 4 Bing. 409; 6 Term, 570.
    
      Sage & Hinkle, and Stallo, Kittredge & Shoemaker, for defendant in error:
    The very moment the retiring partner enters upon open, active, general competition for the old business, it is gone. It. cannot be cut up into fragments. It is not susceptible óf division or apportionment. It is all there or it is all gone. We do not claim that the solicitation of one or two or five of the old customers, or engaging in competition for their trade, is a destruction of the good-will. We are referring to open, general, active competition, such as Leopold engaged in. There-is no such thing as parceling out or dividing up the good-will, in that case. It is not a case for arithmetical or mathematical computation. A court of equity will look at all the circumstances, and decree accordingly. Upon the findings by the court, or upon the findings by the master, the equity of this-case is, we confidently submit, that Leopold is not entitled to-recover any part of the compensation he was to receive for his interest in the good-will. Foulke v. Harding, 13 Pa. St. 242; M., K. & T. Ry. Co. v. City of Fort Scott, 15 Kansas, 435 ; Gottschalk v. Witter, 3 Am. Law Becord, 394; s. c., 25 Ohio St. 76; Wilson v. Wilson, 30 Ohio St. 365 ; French v. Millard, 2 Ohio St. 45; Ashbrook v. Hite, 9 Ohio St. 357.
    Neither party was entitled to a jury, and the reference to a. master was proper. 4 Ohio St. 722 ; 8 Ohio St. 33; 3 Ohio St. 551; 6 Ohio St. 119-140; 25 Ohio St. 411; 11 Wheat. 103.
    We think the measure of damages should have been the entire value of the good-will.
   White, J.

We only deem it necessary in this case to determine the following questions :

1. Whether the plaintiffs interest in the firm, including the good-will, was sold to the defendant as an entirety ?

2. Whether the court erred in overruling the exceptions to the report of the master ?

3. Whether the petition of the defendant, which the court ordered to stand as his answer and counter-claim in this case, is available as a counter-claim ?

As to the first question. We think this must be answered in the affirmative.

By the agreement the property, including the good-will, was required to be put up, bid for and sold as a going concern” to the highest bidder. The party buying was to pay one-half of the price bid, to his copartner, one-third cash, and the balance in equal notes bearing six per cent, interest, payable in one and two years, secured by mortgage upon the real estate-. The defendant became the purchaser, and performed the agreement on Ms part by the payment of the cash and the execution of the notes and mortgage to the plaintiff, for one-half of the purchase-money. The plaintiff gave the defendant the exclusive possession of the concern and conveyed and transferred to him the property purchased. The consideration was entire for all that was purchased ; and there was no separation, in the contemplation of the parties, of the good-will from the other property.

The execution of the deed was not intended to vary the contract of sale. The consideration named in the deed was inserted by counsel, in order to satisfy the revenue laws in regard to stamps, and for no other purpose. It did not operate to destroy or sever the entirety of the consideration for the purchase, as fixed by the contract. The court,- therefore, erred in regarding the sum named in the deed as- an apportionment by the parties of the consideration received by the vendor; and in making it the basis from which to infer that they also agreed upon a separate value for the good-will.

As to the second question. The court erred in sustaining the report of the master. The master ruled that the measure of damages was the actual amoimi of improper soUoitation of customers of the old house, and not the loss of business caused by such solicitation. Hence, he excluded all testimony offered to prove the extent of the loss of business from that cause. Upon the theory adopted by the master ineffectual solicitation was as injurious and as much the basis of recovery as that which was effectual; and consequently that the damages would be the same where there had been improper solicitation and no change in the business, as it would be where the business had been destroyed. The damages should be measured by the injury sustained, and not by the ineffectual attempts to injure.

As to the third question. The pleading ordered by the court to stand as an answer and counter-claim, was not, originally, intended as a counter-claim. It was drawn as a petition in another action, and was founded upon the alleged right to have a cancellation of the notes to the extent of $35,000. In our view no such right existed; but if it had it might have been asserted by way of counter-claim in the action brought to foreclose the mortgage. The counter-claim to which the defendant was entitled was one for damages only. There was no failure of consideration, in the proper sense of the term, which could be available as a mere defense. The defendant’s claim for damages might have been enforced in an independent action; or he might assert it by way of counterclaim in the action brought against him. The claim was founded on the contract in part performance of which the mortgage was given, and was thus connected with the subject -of the action. But in whichever form of proceeding the claim is sought to be'enforced the measure' of damages would he tlie same; nor would the defendant’s measure of redress have been varied if the consideration for the purchase had been fully paid.

Time, the pleading does not state any specific sum as the' ■damages sustained. It does state the facts constituting a cause •of action for which damages are recoverable, and asks that the notes be satisfied and canceled to a specified extent, and “ for .all other proper relief in the premises to which the court may find” the party entitled. .After issue and trial, we do not think the informalities in the pleading as a counter-claim constitute grounds for reversal.

The difficulty arose from the improper consolidation of the .actions, and making the petition in one the substitute for a counter-claim in the other. The provision, of the code in regard to the consolidation of actions applies only where they .are prosecuted on behalf of the same plaintiff.

We see no objection to the account being taken before a master, if the court so orders. The action was an equitable •one, brought solely to foreclose a mortgage.

The defendant, under the code, was authorized to set up in his answer a counter-claim, whether it was of a legal or an •equitable nature. By setting it up in an equitable action, it became the subject of equitable jurisdiction. And it is a principle of equity that when the jurisdiction of the court attaches, it is authorized to go on-and do complete justice between the parties, although in accomplishing this result it may decree on matters cognizable at law. Buckner v. Meer, 26 Ohio St. 517.

Judgment reversed, a/nd cemse remcmded for.further proceedings.  