The striking out of a trade name from the particulars of a business sale agreement is sufficient, as a matter of construction, to exclude that name from the transfer of goodwill, even without resort to extrinsic evidence. Where a party conducts its case at trial on the basis that its misleading or deceptive conduct claim depends on a particular contention, it cannot on appeal recharacterise the claim as having an independent basis that was not presented for determination. The goodwill of a business may be sold apart from its trade name.
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