287 Mass. 291 | Mass. | 1934
This is a suit in equity. The plaintiff, a manufacturing baker, sought by his bill to enjoin the defendant, a former salesman, from holding himself out as an agent and employee of the plaintiff, from representing that the merchandise sold by him is manufactured by the plaintiff, from using the name of the plaintiff or of his business in connection with the sale of merchandise, and from making use in any way of the list of names and customers now in his possession, the property of the plaintiff. The plaintiff
The. facts found by the master include the following: The plaintiff was for many years a manufacturing baker who sold bread at his shop and also to outside customers from a delivery wagon. Prior to May, 1922, he employed one Serignano as a salesman to deliver bread to outside customers. On or about May, 1922, the plaintiff by an oral contract employed the defendant, who had never been a salesman of bread, to take the place of the former employee to deliver bread and the defendant continued in such employment as the plaintiff’s only salesman until November 15, 1930, when he left the plaintiff’s employment and went to work for another baker. The defendant went over the same routes and into the same territory selling the bread of his new employer to many of the customers to whom he had formerly sold the plaintiff’s bread, and the plaintiff’s business on these routes fell off and the plaintiff suffered financial loss.
The defendant “acquired no information respecting the plaintiff’s business in the nature of trade secrets,” and his knowledge of the plaintiff’s customers and their requirements involved no special skill, but he “acquired a knowledge of plaintiff’s customers on said routes by going over the said routes and by soliciting new customers.” He used this knowledge in selling his new employer’s bread. But he had talked with some of the plaintiff’s customers immediately
After the defendant left the plaintiff’s employment, the plaintiff, who knew the addresses of only five of his customers, sent his son to sell bread to them and to any other customers whom he could locate, but the son was unable to find any of the others to whom the defendant had sold and delivered bread while employed by the plaintiff. The plaintiff employed men to follow the defendant for the purpose of finding out to whom he was delivering brqad and to ascertain the addresses at which it was delivered. These men wrote down the addresses at which the defendant called to deliver bread for his new employer, but did not take the names of the customers for the reason that in each of several of the houses more than one family lived and, within three weeks after the defendant left the plaintiff’s employment, furnished to the plaintiff a list containing these addresses.
The plaintiff’s former employee, Serignano, had a list of the plaintiff’s customers on the route in question which was written in a book furnished by the employee. When the defendant began work for the plaintiff this former employee showed him his book in which were written names and addresses of customers and the defendant copied these names and addresses in a book furnished by himself and proceeded to deliver bread to them. During the defendant’s employment many old customers were lost and several new ones were procured by him, the business increased and the territory was extended. At the time the defendant left the plaintiff’s employment he had a small book in which he kept names of customers to whom he sold the plaintiff’s bread and the book contained the names of the old customers and of the new customers procured by the defendant. On November 25, 1930, the plaintiff made an
The master found that the defendant was indebted to the plaintiff in the sum of $16.28, the excess of the amount received by the defendant from the plaintiff’s customers for the sale of bread over the amount paid the plaintiff by the defendant.
The decree was right.
The amount for which the defendant is required to account is in accord with the facts found. And, apart from the matter of the list of customers, hereinafter considered, the defendant has not made any illegal use of knowledge acquired by him when working for the plaintiff or illegally interfered with the plaintiff’s business. The defendant did not agree that he would not enter the employment of a competitor of the plaintiff and, in the absence of such an agreement, his conduct in entering such employment and “seeking the patronage of business acquaintances who became such in the course of a previous employment” was not the breach of any duty which he owed to the plaintiff. It was neither a breach of trust nor a breach of any agreement implied in the contract of hiring. The defendant’s “acquaintance with the customers” was personal to him
The significance of the possession by an employee of a written list of his former employer’s customers, as dis
It follows from what has been said that the plaintiff is not entitled to have the book kept by the defendant turned over to him. He is not entitled to it as his property nor is he entitled to it in order that, to any extent, the defendant may be deprived of information therein contained.
The question remains whether the plaintiff is entitled to have the defendant furnish him with information in his possession. Though it does not appear definitely that the defendant gave to the plaintiff all the names and addresses of customers which he had copied from the book kept by the former employee, it cannot be inferred that the defendant did not furnish the plaintiff upon his demand with all the names and addresses so obtained which are written in the book in the defendant's possession or are within his knowledge. And the plaintiff is not entitled to be furnished with information in regard to the customers obtained by the defendant. This information being a part of the defendant’s experience gained in the business, and not being confidential, is not held by the defendant upon trust for the plaintiff. Doubtless, while the defendant was employed by the plaintiff, the plaintiff could have instructed him as a part of his duty while employed to inform the plaintiff of the names and addresses of customers to whom the defendant was delivering bread. But it does not appear that the defendant while employed failed to obey any instructions given. After the termination of the employment the plaintiff could not command the services of the defendant. His duty and responsibility to the plaintiff ended with his agency. See Mechem, Agency, (2d ed.) § 1235. Since the defendant was under no duty after
Decree affirmed.