166 N.W. 413 | Minn. | 1918
To complete the transfer of the copartnership business and effects to plaintiff each copartner executed a bill of sale, and for the consideration therein stated thereby bargained, sold and conveyed to plaintiff all his interest in the firm property, described therein as follows:
"All right, title and interest held by the party of the first part in the plant, machinery, book accounts, bills receivable and good will of the Review Publishing Company of Minneapolis, located at 409 5th Street South in the City of Minneapolis, which machinery and book accounts were partially shown in the inventory attached hereto and made a part hereof, and also all of the property and assets of said Review Publishing Company of every description, kind and nature whatsoever."
The plaintiff thereafter continued the business, but under the name "Review Publishing Company, Minneapolis," advertising as such and soliciting and receiving orders for printing under that name, precisely as the copartnership had theretofore done. Prosperity attended the efforts of the new concern, and this continued until the year 1916, when, it is claimed, substantial impairment thereof was brought about and caused by the alleged unfair and unlawful conduct of defendants, the facts with reference to which are substantially as follows:
Subsequent to the sale of the copartnership business to plaintiff, as already stated, Wilkinson continued the management and control of the St. Paul enterprise, and devoted his time and attention to its affairs. He was well aware of all the facts heretofore stated, and was a party to the transfer of the copartnership affairs to plaintiff. He knew of the prosperity of the business and also of the use by plaintiff of the name "Review Publishing Company, Minneapolis," and that under that name a favorable reputation had been established in that community. With all this knowledge and acting for the St. Paul company on August 1, 1916, he opened a branch establishment in Minneapolis, intending thereby to enter into competition with plaintiff and to divide the Minneapolis business theretofore established and in the control of plaintiff. *362
Plaintiff's office and work shop was located at 225 South Third street, Minneapolis, and was connected by telephone, the number being "Nicollet 799," and listed in the telephone directory to the "Review Publishing Company." The branch department of defendants was located at 513 Fourth avenue south, Minneapolis. Soon after opening this department Wilkinson, in furtherance of the interests thereof, deliberately ordered the telephone company to change the call of plaintiff's telephone, as it appeared in its directory, from plaintiff's place of business to that of defendants, and on the theory that the order was legitimate the telephone company made the change. Wilkinson also directed the name of Flint, plaintiff's manager, to be stricken from the directory, on the ground that he had no connection with the Review Publishing Company. Defendant Hayward, who for several years had been with plaintiff company, became connected with defendants' branch at Minneapolis, and clothed with credentials similar to those used by him while in plaintiff's service, and as the representative of the Review Publishing Company, solicited business for defendant, under the implied representation, at least under circumstances which justified the conclusion of those approached by him, that he represented plaintiff, and not the St. Paul Company. During all this time the public having business of this particular character was aware of but one concern having or using the particular name in Minneapolis, and that was plaintiff, and this fact also was well known to defendants and each of them. Yet they proceeded in the manner stated in utter disregard of plaintiff's rights in the premises.
Plaintiff brought this action to restrain defendants from further acts of the kind stated and other relief. The trial court ordered judgment granting certain relief to plaintiff, but, on the claim that the relief so granted was inadequate and not the full relief to which it was entitled, plaintiff appealed to this court.
If plaintiff's claim of a right to use the name, Review Publishing Company, be sustained, it is clear from the facts stated, which appear without substantial conflict in the evidence, that a case of unfair competition is presented which entitles it to appropriate and adequate relief. The evidence discloses an attempt on the part of defendants by deceptive methods to appropriate the benefits of a business built up and established by plaintiff and its predecessor, by falsely passing defendant off as the *363
founder and owner of the same. The law controlling the rights and liabilities in such cases is well settled in this state. Nesne v. Sundet,
But it is contended by defendants that as against the St. Paul corporation plaintiff never acquired the right to use the particular name in Minneapolis, or elsewhere, and therefore that no interest its possesses in that respect has been encroached upon by defendants or either of them. We have given this feature of the case careful attention, for it goes to the foundation of plaintiff's claim to relief, and our conclusion thereon is that the facts presented clearly show a right in plaintiff to the use of the name. It acquired the right from the copartnership, which in turn adopted and made use thereof with the express consent of defendant, Review Publishing Company of St. Paul. While the record discloses no corporate action, by resolution of the board of directors, or otherwise, granting the right to the copartnership, the answer admits that it was granted, and the precise method by which the right was so given is of no material importance. In addition to that admission the record is conclusive that the corporation through its general manager, Wilkinson, who first put the name in use in Minneapolis, had knowledge that it was so used for many years, and without objection and without encroachment upon the business field of defendant; and further that a lucrative business had been established thereunder by the copartnership. Clearly under such circumstances defendant could not well challenge the right of the copartnership to use the name, and we have only to inquire whether the transfer of the copartnership business with the good will thereof to plaintiff, carried with it the right to continue the transaction of the business in that name. We think, and so hold, that the question should be answered in the affirmative.
It is well settled both in England and this country that the firm name of a copartnership, as distinguished from the name of an individual, is an element of the partnership enterprise, a substantial asset thereof, and passes with a sale of the partnership property and good will. Banks v. Gibson, *364
34 Beav. 566; Rogers v. Taintor,
Plaintiff is therefore entitled to the injunction of the court restraining further interference by defendants with its right to use the name, Review Publishing Company, in its business at Minneapolis; and, if the defendant company shall continue to operate its department in that city, *365 that it be required to do so under such publicity as will prevent confusion in the public mind. To this end it should be required to advertise its presence in Minneapolis as the Review Publishing Company of St. Paul. This will answer the rule stated in the Sheffield Milling Co. case, supra.
The cause will therefore be remanded to the court below with directions to amend its conclusions of law to conform to the views herein expressed, and to award a modified judgment accordingly against all the defendants. There is no occasion for a new trial of the action.
Remanded with directions.
BUNN, J., took no part.
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