153 Mass. 263 | Mass. | 1891
It appears by the report in this case, that, at the hearing, there was no request that the evidence should be taken down with a view to a revision of the findings of fact by the full court, and it seems to have been the intention of the presiding justice to present upon this report merely the question whether the decree is supported by the facts found. There is nothing to indicate that the plaintiff, at the trial, expressed dissatisfaction with the direction given by the judge to the taking of testimony, or that he at any time intimated a desire to have that direction revised upon an appeal or a report; and we are of opinion that, on the report, it is not now open to the plaintiff to contend that he was injured by the limitation of the testimony to the questions considered.
But if it were open, we see no error in this particular. The appeal relates to nothing but the rights and the conduct of the parties in reference to names, letters, marks, devices, figures, formulas, and trade-marks, once used by Dr. Charles L. Spencer in connection with the manufacture of certain medicines. So far as the bill charges libels by the defendant on the plaintiff, unless he can show that they are something more than mere false representations as to the character or quality of his property, or as to his title thereto, he'is not entitled to a remedy by injunction. Boston Diatite Co. v. Florence Manuf. Co. 114 Mass. 69. Brandreth v. Lance, 8 Paige, 24. Fleming v. Newton, 1 H. L. Cas. 363, 376. His case depends upon his title and the title of the defendant to that which once belonged to Dr. Spencer. The three questions in regard to which evidence was received seem
Sarah T. Spencer, the widow of Dr. Charles L. Spencer, was the administratrix of his estate, and the defendant, without fraud, obtained from her formulas for the preparation of the medicines, and she intended “ that the defendant should have the right to use both formulas, with the labels, wrappers, etc. serving to identify the remedies.” A few days after the death of Mrs. Spencer, and after the defendant had received the formulas, the plaintiff obtained an oral transfer or delivery of them from Mrs. Stetson, who, so far as appears, had no authority to represent the estate of Dr. Spencer or of Mrs. Spencer in making the transfer. His first formal title was by a bill of sale given on December 16, 1887, by Alanson Borden, as administrator de bonis non of the estate of Charles L. Spencer, and as executor of the will of Sarah T. Spencer. But Borden had, by a formal instrument, previously ratified the conveyance by Mrs. Spencer to the defendant of the formula for the “ Queen of Pain,” and in the bill of sale he expressly excepted all rights and privileges previously given or granted by Dr. Spencer, or by himself, or by. any other legal personal representative of either Dr. Spencer or Sarah L. Spencer. The question in the case is whether the plaintiff acquired, as against the defendant, the exclusive right to use the trade-marks formerly used by Dr. Spencer.
In Chadwick v. Covell, 151 Mass. 190, it was decided that this defendant acquired no such right; and, upon the authority of that case, the defendant contends that the position of the plaintiff is at least no better than her own. It was there held that, against any one honestly obtaining them, there was no exclusive right of property in the formulas, and that a mere transfer of the formulas would give no right to use the trade-marks which Dr. Spencer used. It was assumed that there was a gift of Dr. Spencer’s trade-marks to the present defendant, which would have been valid if a trade-mark could have been conveyed to one whose only relation to him, or to the business carried on by him, was that of a donee of the formulas, marks, and labels which he had used; and it was held that the trade-marks were not property which could be conveyed to a mere purchaser or