92 Mo. 355 | Mo. | 1887
The relators, on the tenth of March, 1887, associated themselves together under article 8, chapter 21, Revised Statutes, for the purpose of organizing a corporation by the name of “The Kansas City Real Estate Exchange,” to be located at Kansas City. The articles of association, it is conceded, are in due form, and were duly recorded in the recorder’s office. Upon a presentation of a copy of the same to the secretary of state, he declined to issue a certificate of incorporation ; and the object of this application for the writ of mandamus is to compel him to make the certificate.
Section 762, of the first article of the statute on corporations, and which applies to all corporations, is as follows: “No certificate of its incorporation, or certificate of its change of corporate name, shall be issued by the secretary of state to any company or association: First, under the same corporate name and style as that already assumed by another corporation,” etc. Section 926, which is a part of the article under which these companies in question are organized, provides in detail what the articles of agreement or association shall contain. It is then made the duty of the secretary to give a certificate that the corporation has been duly organized, and that certificate is made evidence of the corporate existence of such corporation in the courts. That section, among other things, declares that the articles of agreement shall set out “the corporate name of the proposed corporation, which shall not be the name of any corporation heretofore incorporated in this state for similar purposes, or an imitation of such name.”
It is the evident purpose of our statute to protect,, to some extent, these common-law rights, and, to do this, both as to the corporation first adopting the name, and as to the public, which may b$ misled by the similarity of the two names. It is difficult to state a precise rule by which one name may be said to be an imitation of another, in the sense of the statute. Where, however, the names so far resemble each other, that a person using that care, caution, and observation which the public uses, and may be expected to use, would mistake one for the other, then the new name is to be regarded as an imitation of the former. The character of' the business, and the location of the two corporations, must be considered. Now, in the present case, both corporations are located in the same city. Both are created for precisely the same purposes, i. e., to establish and maintain a place, with a suitable building, for the public and private sale of real estate, stocks, and other property. The only difference between the two names, consists in the use of the words “and stock.” These words appear in the name of the former corporation, but are omitted in the name adopted by the relators. The-omission of them from the combination with the other words, it is believed, does not furnish a fair distinguishing feature. A reasonably prudent person would be constantly liable to mistake the one for the other. It is doubtless the purpose of both corporations to encourage the public sale of property, real and personal, at their places of business, under mortgages, deeds of trust, and
All tke facts considered, and the reason of the law-attended to, we can but conclude the relators have adopted a name in violation of the statute ; and the writ is, therefore, denied.