199 N.E. 457 | Ind. Ct. App. | 1936
Appellee brought suit against the appellant to perpetually enjoin it from the use of certain milk bottles in the distribution and sale of its dairy products, which bottles were specially manufactured and leased by appellee to dairymen, for use in the conduct of their business. The issues consisted of a complaint in one paragraph, an affirmative paragraph of answer on behalf of appellant, to which the appellee filed two affirmative paragraphs of reply. The cause was submitted to the court for trial without a jury. The facts were all stipulated, and consisted of a substantial repetition of the affirmative pleadings filed by *378 the respective parties. So far as pertinent to our purpose they may be summarized as follows:
Appellee, from July 1, 1931, until the commencement of this action in the lower court, had been engaged in the manufacture, licensing, and leasing of bottles used solely for containing and distributing milk, cream, and buttermilk. When appellee began its business it adopted as a distinguishing and identifying mark, the word "Uservo," which was blown into the body of each bottle, and the letter U was blown into the bottom of each bottle. Appellee was the exclusive user of such distinguishing marks upon its bottles in the United States. On the exterior lower half of the top rim of each bottle corrugations in the surface were blown to form what was known as "the hold fast grip," thus making appellee's bottles readily distinguishable from those owned and used by the appellant. Some of appellee's bottles were used in St. Joseph County, Indiana, by bottlers and distributors of milk, cream, and buttermilk, under a license by appellee, all such licensees in effecting distribution of their dairy products to customers in the usual course of business sold only the contents of the bottles, and not the bottles themselves, and received back from the customer on subsequent delivery, the bottles used on prior delivery. Appellee had never permitted the use of its bottles by anyone other than its licensees and their customers. Appellant during all the time in question was engaged in the business of bottling and selling at wholesale and retail, milk, cream, and buttermilk in South Bend, and in its business filled not less than 6,700 bottles daily, delivering same to several hundred customers in lots consisting of from one to ten bottles. Appellee at no time licensed or consented to the sale, lease, licensing, or permitting in any manner the use of its bottles for bottling and distributing dairy products to or by any other person, *379 firm or corporation, except only such as executed such license agreement, and at all times retained the title and ownership of said bottles. Appellant was not licensed by appellee to use its bottles, nor did appellant have any permission from appellee of any kind or character whatever to use them. Continuously after May 1, 1933, and up to the time of the trial of this cause in the lower court appellant has used appellee's bottles in the conduct of its business, with knowledge at all times that the bottles were the sole property of appellee, that it had prohibited their use by appellant in conducting its business. Appellant refused to desist from such use, and though notified by appellee not to do so, at all times persisted therein, threatened to and would continue to use appellee's bottles unless restrained and enjoined therefrom by order of court. For a long time prior to the commencement of this action by the appellee a custom had prevailed among the bottlers and distributors of milk, cream, and buttermilk to receive from the customers in return for bottles in which they had delivered their products to such customer, the bottles of other bottlers and distributors, which then became intermingled with their own and to use them in the conduct of their own business. This custom continued after appellee inaugurated its business, and as a result thereof, all bottles with the mark "Uservo" thereon, held and used by appellant, came into its possession. Certain dealers during the existence of this custom wilfully refused to supply themselves with enough bottles to meet their demands, and did wilfully rely upon the use of the bottles of other dealers to meet their requirements, thus requiring such other dealers to supply themselves with more bottles than were required in their own business. Appellee never consented to the continuance or perpetuation of said practice and usage, but on the contrary continuously, persistently, and progressively *380 endeavored to terminate the same. April 28, 1933, appellee served notice on all bottlers and distributors of milk, cream, and buttermilk, not its licensees, including appellant, that its licensees had no right, either directly or indirectly, to engage in any practice or custom of interchanging bottles, and that any bottles of such non-licensed dealers which had come into possession of appellee or its licensees would be returned to the rightful owners. At the same time appellee made a demand upon such non-licensed dealers, including appellant, to return to it any of its bottles in their possession. From and after May 1, 1933, appellee's licensees ceased the custom of interchanging bottles with dealers not licensed by appellee to use its bottles marked "Uservo," and refused to receive from their customers, the bottles of other dealers in exchange for the bottles of appellee marked "Uservo." At all times after May 4, 1933, and before the commencement of this action, appellant refused to receive from appellee bottles of appellant which had come into its possession after the cessation of the custom of interchanging bottles, refused to deliver the bottles of appellee which it had in its possession to appellee and persisted not only in withholding them, but in using them in the distribution of its milk, cream and buttermilk, conformable to the usage theretofore existing among bottlers and distributors of dairy products. The cost of each of said bottles was 2 1/3 to 4 1/3 cents. The average number in daily use in St. Joseph County, Indiana, was approximately 57,000, the exact number in possession of appellant at any one time was known to appellant, but unknown to appellee, but the number of such bottles being used by appellant had at no time after May 1, 1933, been less than 5,000. The appellee's bottles were of great value, the source of great profit to it, and the *381 damage suffered by appellee as a result of appellant's use of them was incommensurable.
On the facts as thus stipulated, the court found for the appellee and entered judgment against the appellant perpetually enjoining it from the use of appellee's bottles. Within proper time the appellant filed a motion for a new trial, alleging as causes therefor, that the decision of the court was not sustained by sufficient evidence and was contrary to law. This motion was overruled. Appellant appeals, assigning this action of the court as the only error for reversal.
Appellant's first contention is that appellee's licensees were parties to and had indulged in a usage of long standing, prevailing among dairymen in the locality in question, of the indiscriminate exchange and use of milk bottles, which it would be inequitable to destroy; that such licensees, because of their conduct, were estopped from interfering with such usage and the rights and interests of the various parties growing up thereunder by resort to equity. That what such licensees cannot do directly they cannot do indirectly through another, in this case, the appellee.
"The term usage, in its narrowest sense, denotes merely a uniform course of conduct in some particular business or calling, even though it be that but of one person. A custom, on the 1. other hand, is something which has by its universality and antiquity acquired the force and effect of law, in a particular place or country, in respect to the subject-matter to which it relates. Custom is general practice, judicially noticed without proof. Usage is the fact. Custom is the law." 27 R.C.L., sec. 1, p. 152; Morningstar v. Cunningham (1887),
In order that a usage may be binding it must have been peaceably acquiesced in by those whose rights are *382
to be affected by it and not subject to contention and 2-6. dispute. Carlisle v. Wallace (1859),
Where the gist of an action is the enforcement of contractual rights, then proof of a usage may be resorted to for the purpose of ascertaining the otherwise uncertain meaning of the 7. contract and the real purpose and intent of the parties thereto, but it cannot be resorted to for the purpose of varying, changing or adding to the terms of a contract, complete and certain in its terms. Piggly-Wiggly Stores v. Lowenstein
(1925),
In the case under consideration, appellee is not seeking the enforcement of contractual rights, but is endeavoring to enjoin the commission of alleged tortious interference with its 8. property rights by appellant. "The effect of usages and customs as evidence in cases of torts is very limited, and does not extend to proving or disproving the commission of a specific act by evidence of a certain custom to do or not *383
to do it." Limbert v. Waznitsky (1921),
"To constitute an estoppel by conduct, there must be: 1. A representation or concealment of material facts. 2. The representation must have been made with knowledge of 9, 10. the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intention that the other party should act upon it. 5. The other party must have been induced to act upon it." Hosford v. Johnson (1881),
The burden was upon appellant to prove the essential allegations of its affirmative paragraph of answer, which was founded upon the theory of estoppel because of an 11, 12. established usage. Recurring to the resume of facts heretofore set out and testing their sufficiency to establish such estoppel, by the principles of law controlling under such circumstances as above summarized, it is manifestly clear that the trial court was warranted in finding that they did not possess enough potency to discharge the burden cast upon appellant. *384
To sustain its contention, appellant relies almost exclusively upon the cases of Stone Road Dairy Co. v. Humes (1922),
Appellant next contends that the appellee comes into a court of equity with unclean hands; in that it seeks to preserve such part of the alleged usage as is beneficial and perhaps 13. indispensable to it, namely, the right through its licensees to pick up, even inadvertently, the bottles of appellant and to exercise dominion and control over them, and at the same time invokes the power of the court to destroy the same reciprocal right existing in appellant under a usage long extant. The trial court found against appellant upon this contention. There is ample evidence to sustain such finding and this court will not disturb it.
Appellant also contends that the appellee comes into a court of equity with unclean hands in that it is undertaking to create a monopoly for itself in the use of its milk bottles in 14, 15. St. Joseph County. To constitute a monopoly, there must be conduct of *385
some kind which results in and has for its purpose the unlawful restraint of trade, stifling of competition, control of production or supply, fixing of prices, deterioration of quality of a commodity or other acts of like character and purpose.State ex rel. Lesh v. Indiana, etc., Products (1926),
Finally appellant insists that the appellee has an adequate remedy at law. The trial court also found against appellant on this contention. The protection of property rights is 16, 17. within the power and jurisdiction of courts of equity. In re Sawyer (1888),
The same contention was made in the case of Denver, etc.,Exchange v. McKenzie (1930),
In Renner, etc., Co. v. Rolland (1917),
We think the reasoning in those two cases is applicable to the facts presented by the record in this case and furnishes ample precedent for the action of the trial court.
Finding no error, the judgment is affirmed. *387