163 Mass. 120 | Mass. | 1895
This is a bill in equity against Frank G. Nesbitt and William L. Quimby, to restrain them from doing certain acts, for an account, and for damages. In the Superior Court the defendants demurred to • the bill for multifariousness, and for want of equity. The court sustained the demurrer, and dismissed the bill; and the case comes before us on the plaintiff’s appeal.
In 1898 the plaintiff and the defendant Nesbitt were partners carrying on a law and collection business under the name of Farnsworth and Conant, each owning a one-half interest in the firm. This name, it must be assumed, was of value, as the business had been carried on since 1873, although the plaintiff and Nesbitt did not acquire a right to use it until 1881.
On September 9, 1893, the plaintiff conveyed to Nesbitt his one-half interest “ in the business of law and collections of the firm of Farnsworth and Conant,” except as stated in an instrument of even date signed by the two, reserving to himself, however, “ the name ‘ Farnsworth and Conant,’ excepting as agreed in said ” instrument. There are other provisions in this instrument which will be referred to hereafter.
In the instrument referred to, Nesbitt conveyed to the plaintiff
The effect of these instruments was, in. substance, that the plaintiff retained the office and the firm name and the conduct of cases pending in court, while Nesbitt was to have charge of the other business. He was at liberty, as there was no covenant to the contrary, to engage in the same or any other kind of business.
Immediately after the signing of the agreement Nesbitt took offices in the same building in which the business of Farnsworth and Conant had been carried on, and entered into partnership with
1. The first ground of complaint is that the defendants sent circulars to the former clients and correspondents of Farnsworth and Conant, in which they falsely and fraudulently claimed and led the clients and correspondents to believe that they were the successors of Farnsworth and Conant, and sent a large number of such circulars in envelopes which belonged to the plaintiff, and that had the card “ Farnsworth and Conant ” on the outside, for the purpose of- misleading the parties to whom the same were sent, without any right or authority from the plaintiff. Copies of this circular and envelope are annexed to the bill.
An examination of the circular does not, however, in our opinion, sustain the argumentative allegation of the bill that the defendants claimed therein to be the successors of Farnsworth and Conant. It is headed, “ Offices of Quimby and Nesbitt.” It sets forth the fact that the partnership existing between M. Holbrook and Frank Gr. Nesbitt, under the name of Farmsworth and Conant, is dissolved. It then recites the formation of the new firm of Quimby and Nesbitt, and states that, “ having purchased the entire interest of said Holbrook in the business of Farnsworth and Conant, including all books, papers, documents, and assets of every kind and description and wherever located and being, excepting that said Holbrook retains bis appearance in cases in court in this Commonwealth not yet gone to judgment unless otherwise requested by clients, the said Quimby and Nesbitt will, on and after September 16, 1893, continue to carry on the same business, in all its branches and details, at rooms 309 and 310 Sears Building, Boston, retaining all but one of the old employees of Farnsworth and Conant. . . . All inquiries relating to old matters formerly in the hands of Farnsworth and Conant should be made of, and all communications addressed to, ‘ Quimby and Nesbitt, Boston.’ ”
On the envelope complained of the following printed words appeared in one corner: “ Return in five days to Farnsworth and Conant, Sears Building, Boston, Mass.” There is no allegation in the bill that the use of such an envelope continues, and there is therefore no cause shown for an injunction on this ground.
2. The next contention is that the defendants had no right to send out to the correspondents of Farnsworth and Conant a notice on September 16, 1893, which reads as follows: “In all matters of business of Farnsworth and Conant now in your hands, make all checks, drafts, etc. payable to the order of Quimby and Nesbitt only, and address all communications and correspondence to Quimby and Nesbitt, Boston.” This was signed “ Farnsworth and Conant." This does not relate to new matter at all, but to matters then in the hands of the correspondents. By the express terms of the agreement Nesbitt had the right to use the name of Farnsworth and Conant in the collection of bills due, and in the indorsement of checks for collection or deposit that pertained to business in the hands of Farnsworth and Conant or their correspondents. We see no reason why he might not, as an incident of this, notify the correspondents of the old firm in the manner complained of.
3. The bill also alleges that the defendants are making an unwarranted use of the name of Farnsworth and Conant by displaying a painted sign upon their office in the following form: “ Quimby and Nesbitt,” underneath which names are the words “ Late of Farnsworth and Conant,” and still lower down the names in full of the two partners. This, so far as Nesbitt is concerned, is a right which he expressly reserved. As to Quimby, the bill alleges as follows: “ That the said respondent Quimby has no right whatever to represent that he ever was of the firm of Farnsworth and Conant; that said Quimby was only an employee of the firm of Farnsworth and Conant, and has not now, and never had, any right to represent himself other
We do not agree with the plaintiff’s contention that the use of the word “ of ” amounts to a representation that Quimby was a partner in the firm of Farnsworth and Conant. The words “ of” and “from” appear in the cases to be used indifferently as applicable either to a partner or to an employee. Thus in Hookham v. Pottage the retiring partner described himself as “from ” the the old firm, and in Foot v. Lea, 13 Irish Eq. 484, an employee described himself as “of” the old firm, and an injunction was refused. There is nothing in the bill which shows that there was anything in the way the sign was painted to mislead the public.
To avoid misapprehension, it may be well to state that the court does not interfere to prevent the public from being misled, but “ for the purpose of protecting the owner of a trade or business from a fraudulent invasion of that business by somebody else.” Levy v. Walker, 10 Ch. D. 436, 448. If what is done tends to mislead the public, it naturally diverts customers from the shop of the person entitled to use the firm name, and so injures his business.
It may be assumed that, if the instrument signed by Holbrook had said nothing about the firm name, the exclusive right to use this name would have vested in Nesbitt. Hoxie v. Chaney, 143 Mass. 592. Churton v. Douglas, H. R. V. Johns. 174. It may also be assumed that, inasmuch as Holbrook had only a one-half interest in the firm name when he reserved to himself the name “ Farnsworth and Conant,” he did not have thereafter the sole right to use that name. But in the instrument signed by both the partners Nesbitt conveyed to the plaintiff “ all his right and interest in the name Farnsworth and Conant,” with certain exceptions, which do not include the right to advertise that he was the successor of that firm. The name of an established firm is a part of the good will of the firm; and this, by the contracts of the parties, vested exclusively in the plaintiff, with the exceptions above referred to. The plaintiff also retained the lease of the office where the old firm did business. We find it impossible to say that the defendants had any right to announce that they were the successors of Farnsworth and Conant.
5. The'bill also alleges that the defendants have violated the agreement by soliciting clients who had cases in court to withdraw said cases from the control of the plaintiff, and to turn over the management of them to the defendant Quimby. By the agreement signed by both partners, pending cases in this Commonwealth were to remain in the charge of the plaintiff, “ subject to the right of the clients.” It seems to us clear that it is a violation of this agreement for Nesbitt or his firm to do anything to disturb this arrangement. Apart from the cases referred to in the agreement, we have no doubt of the right of the defendants to solicit the customers of the old firm, there being no covenant in the agreement to the contrary, provided this is done in a fair manner. Pearson v. Pearson, 27 Ch. D. 145. Vernon v. Hallam, 34 Ch. D. 748. Bristol, Cardiff, & Swansea Aërated Bread Co. v. Maggs, 44 Ch. D. 616.
The bill, however, does not allege that this soliciting was continuing when the bill was filed, and therefore does not show any-ground for an injunction. As the case must go back to the Superior Court, it will be open to the plaintiff to move in that court to amend his bill, if the facts warrant it.
6. The objection taken by the defendants that the bill is multifarious, we are of opinion, cannot be sustained. The bill is brought against the members of a partnership for partnership acts. Nesbitt is bound by the terms of the agreements, but so far as he has rights under the agreements he can exercise them by his agents or servants, or by a partner. While Quimby did not sign the agreements, and was not a party to them, he is nevertheless entitled to do what Nesbitt can do, so long as he is in partnership with him. It is not a case of distinct parties with distinct interests. See Lenz v. Prescott, 144 Mass. 505; Dunphy v. Traveller Newspaper Association, 146 Mass. 495, 499.
The result is, that the decree of the Superior Court must be reversed on the single ground that the defendants have no right to represent themselves as successors of the firm of Farnsworth and Conant. Decree accordingly.