
    No. 468
    SUBURBAN ICE MFG. COMPANY v. MULVIHILL
    No. 19807.
    Supreme Court
    On motion to certify.
    Dock. May 6, 1926.
    575. GOOD WILL — Where the good will and other property of a concern are sold and a promissory note taken in payment,, in a suit on the note may the maker defend on the ground that the payee has solicited trade for another* company, and therefore damaged maker, by causing a loss of good will?
    Attorneys — Pogue, Hoffheimer & Pogue and G. E. Mills, Cincinnati, for Company; J. R. Clark, Cincinnati, for Mulvihill.
   It appears that in 1916 the Mulvihill Ice Company sold to The Suburban Ice Manufacturing & Cold Stoarge Company all the .right, title and interest of the Mulvihill Ice Company together with good will and accepted in part payment therefor a promissory note. Mulvihill brought this action originally in the Hamilton Common Pleas upon this promissory note against The Suburban Ice & Cold Storage Co.

' The evidence disclosed that Mulvihill worked for The Suburban Ice & Cold Storage Co. until 1919 at which time he started another ice company, taking with him employees of The Ice & Cold Storage Co., and thereupon solicited and obtained the customers of the Cold Storage Co-.

The execution of the note was admitted and Mulvihill offered no evidence. After the Cold Storage Co. had rested its case the court directed a verdict in favor of Mulvihill, which judgment was affirmed by the Appeals.

The Cold Storage Co-, in the Supreme Court contends:

1. That the trial court erred in instructing the jury that there was no evidence, that Mulvihill had broken his agreement by which he sold the good will of the Mulvihill Ice Co.

2. That as a matter of law where the good will of a concern is sold the party so selling cannot solicit the customers of the old firm.  