186 Mass. 275 | Mass. | 1904
Before May 15, 1894, the two plaintiffs, Lemuel and Alfred H. Crossman, together with the defendant Griggs and
On August 30, 1898, the plaintiffs brought a bill against Griggs alleging these facts, and on March 8, 1899, a decree was entered declaring that Griggs owed the plaintiffs $20,830.21, of which sum $17,470.80 was secured by an equitable mortgage upon the real estate, and “ upon the name or trademark G. H. Bent & Co.,” and the balance, $3,359.41, was unsecured, directing the real estate and the name and trademark to be sold as an entirety, and appointing a commissioner to conduct the sale. From this decree Griggs took an appeal
On a motion filed by Griggs on April 20, an order was made dated April 18, directing the commissioner to adjourn the sale until further order of the court. From this order the plaintiffs appealed. On May 2 the following order, dated April 29, 1899, and indorsed on the back of McPherson’s petition, was filed: 44 The within named petitioner, Ewen R. McPherson, is hereby admitted as a party to the above named cause.” From this
On May 8, 1899, the plaintiffs filed a bill of exceptions, which was allowed on June 9, 1899. This stated exceptions to the order of April 20, 1899, adjourning the sale, and to the order of May 2, 1899, staying all further proceedings under the decree of March 8,1899. On December 4,1899, a rescript was sent down by this court, “Appeal dismissed as prematurely entered,”
On January 2, 1900, Griggs filed an answer to McPherson’s petition, and a “decree” was entered January 4, 1900, in which McPherson was made a party defendant and ordered to answer the bill on or before January 19, 1900. From this the plaintiffs appealed. On January 19, 1900, McPherson filed a demurrer and answer; pn March 20 the plaintiff's filed motions to strike out this demurrer and answer, which motions were denied and the plaintiffs appealed. Thereupon the plaintiffs joined issue and the case was heard on the merits. The judge found that the real estate conveyed May 15, 1894, by Griggs was conveyed as security for payment of the $14,800, and that “ as a part of the same transaction on May 15, 1894, the defendant Griggs executed the agreement set forth in Exhibit É. with reference to the sale, disposition or exchange of the name or trademark of ‘ G. H. Bent & Co.’ As I construe such last agreement, I rule as a matter of law that it conveys no interest in such trademark or name by grant or assignment or declaration of trust, to the plaintiffs. It confers upon the plaintiffs'no equitable lien. I therefore rule that the plaintiffs have no claim as mortgagees, equitable or otherwise, in the trademark or name of ‘ G. H. Bent & Co.’ ” The judge also found “ that the real estate conveyed by the mortgage . . . was the land occupied and used in the business of G. H. Bent & Co. previous to May 15, 1894, but that such mortgage and agreement . . . did not expressly
Thereupon a final decree was entered “that the plaintiffs’ bill be dismissed with costs to both defendants.” Prom that decree the plaintiffs appeal. The evidence was taken at both hearings by a commissioner, and is now before us.
The Superior Court seems to have treated as an interlocutory decree the decree of March 8, 1899, establishing two debts due to the plaintiffs, one secured and one unsecured ; and establishing the existence of an equitable mortgage on the real estate and the trade name as security for the secured debt. Por that reason it seems to have been assumed that the appeal did not stay all proceedings under that decree, and also that it was open to that court to admit McPherson as a party in the cause in
In the agreement with the plaintiffs dated May 15, 1894, and in that with McPherson dated May 16, both Griggs on the one hand and the plaintiffs and McPherson on the other hand seem to have assumed that “ the name or trademark of G. H. Bent & Co.” was property which could be assigned in gross. That was a mistake. The reasons are stated at length in Chadwick v. Covell, 151 Mass. 190, and need not be repeated here. See also Covell v. Chadwick, 153 Mass. 263; Messer v. The Fadettes, 168 Mass. 140.
The plaintiffs’ contention is that an assignment of a trade name is a good assignment when it is coupled with a conveyance of the factory where the partnership business is carried on, and that in the case at bar the two were in fact one transaction. Whether that is so or not need not be considered, for Griggs, in the paper given by him to the plaintiffs, did no more than to agree not to sell, dispose of, or exchange in any way his interest in the name or trademark of G. H. Bent & Co. without the consent of the plaintiffs first being obtained. This is not in terms an assignment and is not in our opinion to be construed to mean more than its terms import. That disposes of the plaintiffs’ argument as to his having an equitable mortgage in analogy to such a mortgage by deposit of title deeds.
In the agreement with McPherson there is an intention to assign the name or trademark but there is in terms no assignment of the good will of the business, and in our opinion that agreement also cannot be construed to mean more than its terms import. In our opinion it cannot be construed to be an implied assignment of the good will of the business. For that reason it gave McPherson no rights of property in the name or trademark in question. All that McPherson got was a right to bring an action of contract against Griggs for damages, in case Griggs broke his agreement.
By the final decree entered on December 14, 1903, the bill was dismissed with costs “ to both defendants.” In our opinion McPherson’s petition to be admitted a party defendant should not have been granted, and, for that reason at least, he is not entitled to costs.
By the construction which we have given to the Griggs agreement delivered to McPherson, dated May 16, 1894, McPherson obtained no right of property in the name and trademark G. H. Bent & Co. All that he got was a right to recover damages against Griggs if Griggs broke his promise not to assign the name and trademark to another or if he broke his promise that he would assign it to McPherson or his assignee on a written demand being made upon him so to do. Whether McPherson’s petition to be allowed to become a party defendant should or should not be granted depended upon his having a property interest in the name or trademark in question. If he had such an interest he had a right to be admitted a party defendant to protect that interest. If he had not a property interest in the name but only a right of action for damages for breach of a contract made with him by Griggs in case he did not get the trademark, he had no standing as a party defendant in a bill in which it is sought to have the trade name owned by Griggs applied in payment of a debt for which the plaintiff contends it was pledged, or in a bill in which it is sought to have it applied in payment of a debt for which it is not pledged as property which cannot be taken on execution at law. How far this bill is to be treated as a bill of the latter kind will be dealt with later on. The time for deciding whether McPherson did or did not have a property interest in the name was when his motion to be admitted a party defendant came on to be heard.
The plaintiffs have not argued that under the present bill the good will of the business of G. H. Bent & Co. can be reached and applied in payment of the plaintiffs’ debt apart from the validity of their claim that the mortgage of the real estate and the agreement of May 15 constituted an equitable mortgage on the business. They have contended that out of the balance
The only question presented by the bill of exceptions is whether further proceedings under the decree of March 8, 1899, should have been stayed. If that was a final decree, further proceedings were stayed by the appeal. R. L. c. 159, § 19. If not, it was proper that they should be stayed. The exceptions are for this reason immaterial.
The entry must be
Decree of March 8,1899, vacated. Bill dismissed with costs to the defendant Cfriggs. Exceptions overruled.