Hoyt v. Holly.

The father consents, and the son by the labor of his own hands earns a few dollars, and we are called on to decide between the son's title and that of his father's creditors to these earnings. In a case somewhat analogous, of the wife's earnings, which at common law belong to the husband, our statutes have carefully protected the proceeds of her labor from her husband's creditors and secured them to her own use. These statutes proceed upon the same principle of natural law and justice which we feel bound to apply to a child's wages, in cases like the present. Those statutes, however, go much further in the protection of the wife's earnings than we are called on to go in favor of a child's, for as already stated, the son's wages earned before emancipation are regarded as his father's property, and of course like other property are liable to attachment.

We have carefully examined the authorities cited by the counsel for the defendants, but we find no case which favors their claim, and though perhaps no case has gone the full length claimed by the plaintiff, yet the language of the judges in Massachusetts, Vermont and Pennsylvania is in conformity with the views which we have expressed; and both on principle and authority we think the decision of the court of common pleas was correct, and we therefore advise no new trial.

In this opinion, the other judges concurred.

HOYT V. HOLLY.

(39 Conn. 826.)

Physician-sale of good will-Public policy.

Plaintiff, a physician, being about to remove from the town where he lived, agreed with defendant, also a physician, in consideration of $500, to recom mend him to his patients, and to use his influence to induce them to employ him. Held, that the agreement was lawful, and not against public policy. (PARK and SEYMOUR, JJ., dissenting).

MOTION for a new trial in an action of assumpsit. The judg mert below was for the plaintiff. The opinion states the case.

Hoyt v. Holly.

Curtis and Hoyt, for the motion, cited Nichols v. Mudget, 32 Vt. 546; Frost v. Belmont, 6 Allen, 152; Devlin v. Brady, 36 N. Y. 531; Bloss v. Bloomer, 23 Barb. 609; State v. Hartford, 29 Conn. 538; Fuller v. Dame, 18 Pick. 472; Debenham v. Ox, i Ves. Sr. 276; Austen v. Boys, 37 L. J. Ch. 714.

Olmstead and Child, contra, cited Mitchel v. Reynolds, 1 P. Wms. 181; Chesman v. Nainby, 2 Stra. 739; Davis v. Mason, 5 T. R. 120; Hutton v. Lewis, id. 639; Bunn v. Guy, 4 East, 190; Butler v. Burleson, 16 Vt. 176; Hathaway v. Bennett, 10 N. Y. 108; Bradbury v. Bardin, 35 Conn. 577.

FOSTER, J. It appears from the motion in this case that at the time of entering into the contract out of which this suit has arisen, both the parties were practicing physicians in the town of Greenwich, the plaintiff at the village of Greenwich, and the defendant at Round Hill.

The plaintiff, being about to leave the village and establish himself in practice in the adjoining town of Stamford, proposed to the defendant to remove from Round Hill to Greenwich village, and take the plaintiff's place. The plaintiff agreed to recommend the defendant to his patrons and patients in the village and vicinity, and to use his influence to induce them to employ him. It was mutually understood that the plaintiff reserved the right to practice in the village and vicinity, when called on to do so.

The plaintiff removed to Stamford, and the defendant came to the village, occupying for a time the office previously occupied by the plaintiff, going into practice, and holding himself out, by advertisement and otherwise, as the successor of the plaintiff. The motion finds that the plaintiff fulfilled his part of the agreement, and this suit is brought to recover the $500, which was the consideration agreed to be paid to the plaintiff by the defendant on his part. The judgment below was in favor of the plaintiff.

This motion for a new trial rests on three grounds: 1. That the contract is void as being incapable of performance. 2. That it is void as being contrary to public policy. 3. That it is not the sale of a good-will of a business; the business of a professional man being a personal trust and confidence, not a subject of sale. Because the plaintiff reserved the right to practice in the locality, when called on to do so, we do not think it therefore became impossible for him

Hoyt v. Holly.

to recommend the defendant, and to exert his influence to induce his patients to employ him. That fact might affect the value of the recommendation; it might diminish the weight of the influence; but certainly it would not necessarily prevent the recommendation from being made, the influence from being exerted. Besides, a conclusive answer to this claim is, the finding in the motion that the plaintiff fulfilled his part of the agreement.

This contract would no doubt be void, if it belonged to that class of contracts to which it is likened by the defendant's counsel. We distinguish it from cases of a promise to pay another for soliciting a will to be made in his favor, or for procuring a marriage between certain parties, and other analogous cases. No principle of law or public policy is violated by the carrying out of this contract.

As to the question of the sale of the good-will of a professional business, without entering upon an examination of the various cases from Bunn v. Guy, 4th of East, to that of Austen v. Boys, 27 L. Jour. Ch. 714; S. C., 2 DeGex & Jones, 626; 22 Jur. 719, we feel warranted in saying that a practicing physician may make a sale of his situation, may lawfully make such a contract as was here made. We find nothing exceptionable in the rulings and decision of the court below, and the motion for a new trial must therefore be denied.

In this opinion, BUTLER, C. J., and CARPENTER, J., concurred. PARK, J., was of opinion that the plaintiff's agreement, in consideration of the money to be paid him by the defendant, to recommend the defendant to his patrons and patients, and endeavor to induce them to employ him, was contrary to good policy and rendered the whole contract void on that ground. He therefore dissented.

SEYMOUR, J., also dissented.

Stockwell v. Campbell.

STOCKWELL V. CAMPBELL.

(39 Conn. 362.)

Fixtures-portable furnaces.

Portable hot-air furnaces used for warming a dwelling-house, set in pits prepared for them in the cellar, and kept in place by their own weight, are part of the realty; as also are the pipes leading from the furnaces to the chimney.

BILL to foreclose a mechanic's lien on a building. The respondent was the owner of the building, which was arranged for heating by portable hot-air furnaces, and pits for the same were constructed in the cellar. Before the building was completed the respondent ordered of the petitioner two furnaces and the pipes, which the petitioner supplied and placed in the building. The furnaces were portable coal furnaces, not set in brick nor fastened to the house, but held in their place by their own weight. The smoke pipes were similar to ordinary stove pipes, and could be removed without injury to either the chimney, the furnace or the pipes. The furnaces could be removed and reset without injury to either themselves or the house. The claim of the petitioner was for the furnaces and the pipes, and for labor in placing the same. The contract relative thereto was independent of any contract relating to the construction of the building. The petitioner claimed a lien upon the entire house.

The court reserved the question.

G. H. Hollister and D. F. Hollister, for petitioners, cited 3 Redf. on Wills, 163; Alvord Carriage Manuf. Co. v. Gleason, 36 Conn. 86.

Mr. Seeley, for respondent, cited Rose v. Persse & Brooks' Paper Works, 29 Conn. 256, 267; Chapin v. Persse & Brooks' Paper Works, 30 id. 461; Capen v. Peckham, 35 id. 88; Lombard v. Pike, 33 Me. 144; Millikin v. Armstrong, 17 Ind. 456; Morgan v. Arthur, 3 Watts, 140; Houck on Liens, § 163.

PARK, J. The question in this case is, whether the furnaces ⚫ and the smoke-pipes attached to them were fixtures. If they were, VOL. XII. — 50

Stockwell v. Campbell.

they were parts of the buildings to which they were attached, and the fact that a separate contract was made in reference to them becomes of no importance, for a mechanic, in constructing any part of a building, has a lien on the whole building for the labor performed and materials furnished. The claim of the respondent would deprive the mechanic of his lien unless the entire building was constructed by him under one contract, which manifestly is absurd.

We come then to the only question in the case, and that is, were these articles fixtures?

In the late case of Capen v. Peckham, 35 Conn. 88, this court held that to constitute a fixture it is essential that the article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature of the article annexed, its adaptation to the uses and purposes to which the building was appropriated at the time the annexation was made, and the relation of the party making it to the property to which it was annexed, that a permanent accession to the freehold was intended to be made by the annexation of the article." Again the court says: "If the articles in this case had been ponderous and extremely difficult to be removed; if they had been of considerable value taken in connection with the building, and of little value as chattels to be removed; if they had been fitted to the places they occupied and would not be suited to other places or buildings unless specially prepared for them, such considerations might go far to show that the articles were fixtures."

The articles in that case were the ordinary implements of a slaughter-house. They were put into the building to be used in the slaughter of animals. With the exception of a windlass, all the articles could easily have been removed to and set up in any other slaughter-house without any injury to the building from which they were taken or to themselves; and they would have been as valuable and useful in their new location as in the places they then occupied. The court held the windlass to be real estate, for the annexation of the article was deemed sufficient to show that it was designed to be so by the party making the annexation; but inasmuch as there was nothing to indicate such intention in reference to the other articles, they were held to be personal property.

This rule, which requires a physical annexation of the article to