Summerfield Co. v. Prime Furniture Co.

242 Mass. 149 | Mass. | 1922

Rugg, C.J.

This suit in equity was brought to restrain the defendant from unfair trade competition with the plaintiff. The case was referred to a master. The rule required him “to hear the parties and their evidence, to find the facts, and report the same to the court.”

Certain objections to the master’s report are printed in the record, but no exceptions were filed as required by Equity Rules 31 and 32. Such objections are not before us. Therefore, on the appeals of both parties, there is nothing before us except the pleadings, the master’s report, the interlocutory decree and the final decree. Smedley v. Johnson, 196 Mass. 316, 317. Capen v. Capen, 234 Mass. 355, 362.

No question rightly can be raised at this time concerning profits or damages. The master declined to go into the question of profits. No exception was taken. The correctness of that action is not before us. The master made no findings concerning damages. No reason for this is stated. The bill contains no prayer for damages, but only for profits. Here again no exception was saved. The distinction between recovery of profits and recovery of damages is well settled. Forster Manuf. Co. v. Cutter-Towner Co. 215 Mass. 136.

The interlocutory decree denying the plaintiff’s oral motion made in open court to recommit the report for hearing before the master on the question of damages discloses no error of law. The motion was not in writing and hence we have no means of ascertaining its alleged grounds. It could not have been founded on exceptions because none were filed. There is nothing in the record to indicate what occurred before the single justice at the hearing on this motion. As was said in Regis v. H. A. Jaynes & Co. 191 Mass. 245, at page 247, “If it appears that the amount of damage to the plaintiff or of profits realized by the defendant is only insignificant, or that no actual damage has been sustained, the court may confine its relief to an injunction.” Giragosian v. Chutjian, 194 Mass. 504. For aught that appears, the single justice in hearing the motion to recommit may have gone into evidence as to the facts and found that there was no' warrant for assessment of damages or profits. Baush Machine Tool Co. v. Hill, 231 Mass. 30, 41. W. B. Manuf. Co. v. Rubenstein, 236 Mass. 215, 220. The oral motion was addressed wholly to the discretion of the single justice. Such a motion ordinarily is not granted in the absence of some special reason. Smith v. Lloyd, 224 Mass. 173, 175. Cunningham v. Worcester Five Cents Savings Bank, 223 Mass. 361. The facts found by the master do not require the inference of damages or loss of profits.

There was no error in the final decree. Summarily stated the master’s report shows that, the plaintiff having been established at a store on Washington Street in Boston in the retail furniture trade for a considerable time largely on the instalment plan and having been an extensive advertiser and having become well known to the public by these and other means, the defendant engaged in the same business and became tenant of an adjoining store past which many customers would naturally go to reach the plaintiff’s store. The defendant, having as its general manager and as some of its salesmen those formerly employed by the plaintiff, entered upon a course of conduct designed to make its store appear to be the store of the plaintiff. Among other means chosen to that end were the alteration of the front of its store, the dressing and the adornment of its show windows, the display and arrangement of its goods for sale, the adoption of stationery, forms of conditional sale, leases and receipts, and the use of a similar business motto. These were all in imitation of the plaintiff’s store and business. The signs of the defendant were so arranged as not to be observed by those walking on the adjacent sidewalk. This conduct was calculated to make passersby and prospective customers think that the defendant’s store was the store of the plaintiff. Other active and passive misrepresentations were employed to the same end in treatment of customers entering the defendant’s store under the impression that it was the store of the plaintiff.

The case thus made out by the plaintiff differs in form from most instances of unfair trade competition hitherto presented. No trademark here is involved. The nearest approach to piracy of a trademark is the use of a mercantile motto similar in sound, form and meaning to that used by the plaintiff and likely to be mistaken for it. The underlying principle, which is the foundation of equitable relief in this class of cases, is that one trader shall not compete with another for public patronage by adopting intentionally means adapted to deceive the public into thinking that it is trading with the latter when in fact dealing with the former, and thus palming off his goods as those of another. The relief is based on the existence of an acquired reputation and good will in connection with business recognized as a property right which will be protected against unfair methods of competition by rivals. The defendant has equal right with the plaintiff to solicit the patronage of the public. But it has no right intentionally to mislead the public to the harm of the plaintiff even in competition. Equity will use practicable precautions to prevent the defendant from deceitfully diverting the plaintiff’s custom while at the same time permitting the defendant to carry on its lawful business by any appropriate competitive methods. The principle finds frequent expression in cases of the wrongful use of trademarks or other devices or designations which have become so connected with particular goods as to indicate the source of manufacture or trade to the general public. American Waltham Watch Co. v. United States Watch Co. 173 Mass. 85. Flagg Manuf. Co. v. Holway, 178 Mass. 83. Regis v. H. A. Jaynes & Co. 191 Mass. 245. W. B. Manuf. Co. v. Rubenstein, 236 Mass. 215. Reading Stove Works v. S. M. Howes Co. 201 Mass. 437. Marsh v. Billings, 7 Cush. 322. The principle is not confined to any one set of facts. It is applicable wherever deceit is practised to the harm of a rival for the attraction of patronage. A person has a legal right to be protected in the good will of his business against such an attack. Hildreth v. D. S. McDonald Co. 164 Mass. 16. New England Awl & Needle Co. v. Marlborough Awl & Needle Co. 168 Mass. 154. Grocers Supply Co. v. Dupuis, 219 Mass. 576; Grocers Supply Co. v. 1. Renaud Co. 234 Mass. 180. Hanover Star Milling Co. v. Metcalf, 240 U. S. 403. Weinstock, Lubin & Co. v. Marks, 109 Cal. 529. Kimball v. Hall, 87 Conn. 563. Yellow Cab Co. Inc. v. Becker, 145 Minn. 152. W. & G. Du Cros v. Gold, 29 T. L. R. 163. O. & W. Thum Co. v. Dickinson, 158 C. C. A. 37; 245 Fed. Rep. 609. United Cigar Stores Co. of America v. United Confectioners, 92 N. J. Eq. 56, affirmed in 92 N. J. Eq. 449.

The facts set forth in the master’s report bring the defendant within the scope of this principle.

The final decree is adapted in a commercially reasonable sense to protect the plaintiff in its rights and to restrain the defendant from unwarranted acts. The first two paragraphs do not relate to architectural design of the building. They simply mean that, as to those matters of decoration and adornment commonly within the control of a tenant, its premises are not to be so maintained as to deceive the public into thinking them to be occupied by the plaintiff. The other paragraphs, whether mandatory or restrictive in nature, are each adapted to a particular act done by the defendant as shown by the master’s report in furtherance of its general purpose. There is nothing in the third paragraph which requires the defendant to maintain a sign over the sidewalk or to do anything in any particular in violation of an ordinance or law.

Decree affirmed without costs to either side.