231 Mass. 574 | Mass. | 1919
These cases were argued together and may be disposed of by a single opinion. In each case the plaintiffs seek to enjoin the defendant from the use of the name Thomas Kelly in connection with his business in the cities of Boston, New York and Chicago. The cases are before this court on report.
The agreed facts applicable to both cases are, in substance, as follows: On December 1, 1892, the defendant Morrison became a partner with Thomas Kelly and one Maguire, under the name of Thomas Kelly and Company. Kelly died in 1893. Maguire and Morrison continued- the business under the same firm name until the death of Maguire in 1895. On December 1, 1895, Morrison formed a new partnership with other partners, and continued the business with various partners, and finally with the plaintiffs Hennessey, Rogers and Jenkins under the same firm name of Thomas Kelly and Company until the expiration of the last partnership on November 30, 1917. On December 1, 1917, a bill
“The executor of the will of Thomas Kelly was his partner, Maguire, and after the death of Maguire, Thomas A. Kelly and Thomas J. Kelly, the plaintiffs, were appointed administrators de bonis non in 1895. The right to the use of the name Thomas Kelly does not appear as an asset on any inventory of the estate of Thomas Kelly, nor is it included in the first and final account of the administrators de bonis non, which was filed in 1916, duly assented to by all persons interested therein. The administrators de bonis non have at all times known that, after the death of Thomas Kelly, Morrison continued the business and has continued it under the same firm name with different partners since December, 1895. During that period, Morrison has sent out circulars and price lists regularly to the trade, and has advertised somewhat in trade papers, and the sales of the business have almost doubled from 1895 to 1917. The name is of value, and its value has increased since 1895. Neither of the administrators has ever been engaged in a similar business, although Thomas A. Kelly was employed during the year 1896 by the firm which Morrison formed to succeed the old firm in which Thomas Kelly was a partner, and, since the sale of the business by the receiver to Morrison, Thomas A. Kelly has been employed by the firm of Hennessey, Rogers and Jenkins. The offices of the firm of
The right claimed by the plaintiffs to have enjoined the use of the name of their testator, is a right unknown to the common law and to courts of equity. As a remedial right it was first conferred upon a person and his legal representatives by St. 1853, c. 156, now B.. L. c. 72, § 5. That statute reads: “A person who carries on business in this Commonwealth shall not assume or continue to use in his business the name of a person formerly connected with him in partnership or the name of any other person, either alone or in connection with his oto or with any other name or designation, without the consent in writing of such person or of his legal representatives.”
It is the contention of the defendant that the statute intended to provide for two classes of cases, — the first, where there is an assumption of a name; the second, where there is a continuance of the use of a name, by a person or persons who once had the right to use it in connection with the owner of it. And it is argued that the intent of the statute is expressed by the simple word “use” without the phrase “assume or continue to use.” Should this construction of the legislative intent be adopted it is plain the phrase “assume or continue to use” could not bé interpreted to mean “shall not assume and continue to use,” as it manifestly was interpreted to mean in Bowman v. Floyd, 3 Allen, 76,80. The Legislature has re-enacted the statute of 1853 at least twice since the decision in Bowman v. Floyd, without substantial change, and the judicial construction then put upon it is now a part of the statute, if the intent thereof was ever a question of doubt. Nichols v. Vaughan, 217 Mass. 548, 551.
Bowman v. Floyd decided that “the statute forbids not only the assumption but the continued use of the name of another person without consent first duly obtained.” It also is authority for the proposition that that person or his legal representatives “must
The plaintiffs in the second case are not persons who are entitled to the right and remedy conferred by the statute. Lodge v. Weld, 139 Mass. 499.
It follows that in the second case the bill should be dismissed with costs; and in the first case a decree of injunction should issue restraining the defendant from the use of the name Thomas Kelly in connection with his business, except as it shall be used to indicate his succession to the business of Thomas Kelly and Company.
Decree accordingly.