Butterick Publishing Co. v. Fisher, 203 Mass. 122

Butterick Publishing Co. v. Fisher

203 Mass. 122 | Mass. | 1909

Loring, J.

1. We are of opinion that the contract sued on is not within R. L. c. 56, § 1. It was held by this court in Commonwealth v. Strauss, 188 Mass. 229, that that statute, being a *130highly penal one, is to be construed strictly, and that so construed it does not prohibit a sale at a reduced rate in consideration of an agreement to sell the vendor’s goods alone. It is not necessary, therefore, to consider whether the defendant was the plaintiff’s agent as matter of law and so within the exceptions stated at the end of the section.

2. The defendant’s objection that no decree can be had in the absence of the McCall Company is not well taken, lío relief is sought against that company. It is usual to join such a person as a proper party defendant; and in Strobridge Lithographing Co. v. Crane, 12 N. Y. Supp. 834, it was held that under a statute giving a proper party defendant a right to intervene it was error to refuse to admit a person standing in the' position of the McCall Company on his making application therefor. We know of no case or principle which makes the McCall Company a necessary party defendant.

3. The next question is whether the plaintiff was entitled to have the defendant enjoined from violating his negative agreement “ not to sell or permit to be sold on the premises of the party of the second part during the term of this contract any other make of patterns.”

It may be taken to be settled in this Commonwealth that the question whether a contract will or will not be specifically enforced depends upon the question whether the thing contracted for can be purchased by the plaintiff, and whether damages are an adequate compensation for a breach. See Clark v. Flint, 22 Pick. 231; Gloucester Isinglass & Glue Co. v. Russia Cement Co. 154 Mass. 92; New England Trust Co. v. Abbott, 162 Mass. 148 ; Howe v. Watson, 179 Mass. 30; Beekman v. Marsters, 195 Mass. 205.

It may also be taken to be settled, following the decision in Lumley v. Wagner, 1 DeG., M. & G. 604, that the specific performance of a negative covenant will not be denied in a proper case because an affirmative covenant with which the negative covenant is allied is in kind one which a court of equity does not specifically enforce. See Peabody v. Norfolk, 98 Mass. 452; Ropes v. Upton, 125 Mass. 258; Anchor Electric Co. v. Hawkes, 171 Mass. 101; United Shoe Machinery Co. v. Kimball, 193 Mass. 351. See also Rice v. D’Arville, 162 Mass. 559.

*131The defendant’s covenant not to sell or permit to be sold on his premises any other make of patterns is a covenant where the thing contracted for cannot be purchased by the plaintiff, and where damages are not an adequate compensation. The plaintiff’s business consists in making and selling patterns for women’s and children’s garments. For the purpose of pushing its business it creates an agency in each of the principal cities and towns for the sale of its patterns. The agent also agrees to buy a certain number of its pamphlets and catalogues, the pamphlets to be resold at a profit and the catalogues to be distributed gratuitously. For example, in the contract made between the plaintiff and the defendant the plaintiff agreed to sell to the defendant its patterns at fifty per cent of the retail price, and the defendant agreed to keep on hand for sale (with the exception of four months there named) patterns to the amount of $400. The plaintiff agreed to sell to the defendant its pamphlets, called Butterick Metropolitan Fashions, at seven and one-half cents apiece, the retail price being ten cents, and the defendant agreed to buy thirty thousand sheets of said Fashions. The defendant also agreed to buy one thousand catalogues for $20 a thousand, to be distributed gratuitously. The defendant further agreed to keep the patterns on the ground floor of the store and to give through a “lady attendant” proper attention to the sale of them.

It appeared in evidence that the defendant’s store was easily the largest dry goods store in Newburyport, and that it is of advantage to have such patterns sold in the same store where goods are sold for making women’s and children’s garments.

It is manifest that the plaintiff cannot get the same reform' from a smaller store, and that its loss feom the defendant’s breach of his contract cannot be measured or made good by giving it damages.

The case is within the decided cases. An injunction was issued in a similar case by the Supreme Court of New York, and that decision was affirmed by the Court of Appeals. Standard Fashion Co. v. Siegel-Coopar Co. 30 App. Div. (N. Y.) 564; S. C. on appeal, 157 N. Y. 60. Moreover, this court in Butterich Publishing Co. v. Boynton, 191 Mass. 175, where there was no negative covenant/, said that if there had been one an injunc*132tian would have issued. In Catt v. Tourle, L. R. 4 Ch. 654, violation of a covenant not to buy beer for sale from anybody but the plaintiff was enjoined. The covenant there was in a lease, but that was held to be immaterial in the original case of Lumley v. Wagner, 1 DeG., M. & G. 604. See pp. 617, 618. The same point was decided in Metropolitan Electric Supply Co. v. Ginder, [1901] 2 Ch. 799. The negative covenant which was enjoined in that case was a covenant not to take electricity from anybody but the defendant and was not contained in a lease. For other cases see Western Union Telegraph Co. v. Rogers, 15 Stew. 311; Myers v. Steel Machine Co. 1 Robbins, 300; S. C. on appeal, 2 Robbins, 795; Jones v. Williams, 139 Mo. 1; Ferris v. American Brewing Co. 155 Ind. 539; Southern Fire Brick & Clay Co. v. Garden City Sand Co. 223 III. 616; Feigenspan v. Nizolek, 1 Buch. 382. For a collection of cases see Joyce on Injunctions, §§ 451-457.

4. The defendant has contended that in the case at bar, the plaintiff is not now and never has been in a position to ask for specific performance of the contract between them. He bases this contention on the finding of the judge who heard the case that “ subsequent to the making of the contract in question its terms were modified by an oral agreement whereby the time for the beginning of the performance was extended to June 28,1908. This modification was in pursuance of and carried out a paroi understanding and agreement that the defendant should have an exclusive right of sale and that the Pray contract should be terminated, the earliest date at which the plaintiff could terminate it being June 28th.”

But we-are of opinion that this finding was plainly wrong.

During the negotiations which led up to the written contract here in question, it was stated by the plaintiff company that it was its policy to have but one “ agency ” in Newburyport and that it intended to bring its agency with H. W. Pray and Company to an end (as it had a right to do under its contract with them) at the same time that its contract with the defendant went into effect. But the plaintiff came unidor no obligation to the defendant to that effect in the original contract, as was found in terms by the judge who heard the case. Tin? ruling that paroi evidence is not admissible to contradict a writte'n contract usually *133is spoken of as a rule of evidence. It is a rule of evidence, but it is a rule of evidence founded on the substantive rights of the parties, namely, that, where the trade finally struck between the parties is put in writing, the writing sets forth the trade which is struck. For that reason evidence that during the negotiations the plaintiff agreed by word of mouth that the defendant should be its sole “ agent,” although not objected to, is not of consequence. Mears v. Smith, 199 Mass. 319. See also in this connection Farquhar v. Farquhar, 194 Mass. 400, 404, 405.

The change subsequently made by which the contract between the plaintiff and the defendant was to go into effect on June 28, 1908, in place of March 28,1908, was made to enable the defendant to bring his contract with the McCall Company to an end before or at the time that his contract with the plaintiff went into operation and not as part of a subsequent agreement that the defendant was to be the sole “ agent,” as found by the judge. To bring the contract with the McCall Company to an end, the defendant had to give three months’ notice; and after the contract here in question had been made it was discovered that notice could not be given before March 28,1908. This fact was not discovered when the written contract was made, but was discovered later on. One of the plaintiff’s witnesses (Marsh by name) testified that March 28, 1908, was originally fixed upon as the date when the contract here in question was to go into operation, because the plaintiff did not wish to put its patterns into the defendant’s store until the defendant’s contract with the McCall Company had expired ; and the date was changed from March 28, 1908, to June 28, 1908, when it was discovered that that was the earliest date on which the defendant could terminate his contract with the McCall Company. The defendant, when on the stand, also testified to the same thing and fixed February as the time when this subsequent agreement changing the date was made. That was all the testimony there was in the case as to the change from March 28, 1908, to June 28, 1908.

The plaintiff throughout intended to have but one “ agency ” in Newbury port. But at no time did it come under an obligation to the defendant to that effect. We are therefore of opinion that the fact that the plaintiff never has brought its *134agency with H. W. Pray and Company to an end does not prevent it from asking for specific performance.

But we are also of opinion that, since the plaintiff stated that it intended to have but one “agency ” in Mewburyport, the defendant should not be required specifically to perform the contract until after H. W. Pray and Company have ceased to be the plaintiff’s agent. He who seeks equity must do equity.

5. The plaintiff has asked for such damages as have accrued in addition to the injunction, as was done in Foss v. Roby, 195 Mass. 292. We think that doubtless it has suffered damages, but we think also that it is not possible to prove, and that the plaintiff has not proved, what they amount to in dollars and cents.

The decree of the Superior Court must be reversed and a decree entered enjoining the defendant from selling or permitting to. be sold on his premises, during the term of the contract, any make of patterns other than those of the plaintiff, from and after the time when its contract with H. W. Pray and Company shall have come to an end.

So ordered.