Altman v. Alcolite, Inc., 155.

• Decision Date: 27 January 1936
• Docket Number: No. 155.,155.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: ALTMAN et al. v. ALCOLITE, Inc., et al.

13 F. Supp. 393

ALTMAN et al. v. ALCOLITE, Inc., et al.

No. 155.

District Court, N. D. West Virginia.

January 27, 1936.

Charles McCamic, of Wheeling, W. Va., and Sachs & Caplan, of Pittsburgh, Pa., for plaintiffs.

Frank A. O'Brien, of Wheeling, W. Va., William P. Lehman, and Ward Lanham, both of Fairmont, W. Va., and George J. Segal, of Philadelphia, Pa., for defendants.

BAKER, District Judge.

Prior to the 9th day of November, 1929, the defendant Roszel A. Stehley was practicing dentistry in the city of Fairmont, W. Va., and had perfected a substance used for the manufacturing of artificial dental blanks, which said substance was later advertised and sold under the name "Alcolite."

For a long period prior to said date the plaintiffs had been engaged in the dental supply business in the city of Pittsburgh, selling many types of dental supplies, some of which were trade-marked with the name "Alco."

Prior to June, 1929, the plaintiffs became interested in said product, and negotiations were entered into between them and Roszel A. Stehley looking toward the advertising and sale of dental blanks manufactured from said substance, which said negotiations culminated in a written contract dated the 9th day of November, 1929, between the plaintiffs and the American Beauty Denture Company, Inc., which company later changed its name to Alcolite, Inc., and to which company the defendant Stehley had assigned his right, title, and interest in and to said substance. Said contract is as follows:

"This Agreement, Made this the 9th day of November, 1929, by and between The American Beauty Denture Company, Incorporated, of Fairmont, West Virginia, party of the first part, and Altman Gold & Refining Company, of Pittsburgh, Pennsylvania, party of the second part.

"Witnesseth, That for and in consideration of the sum of One Dollar in hand paid, the receipt of which is hereby acknowledged and the further Covenants and Agreements hereinafter set forth, the party of the first part does hereby appoint Altman Gold & Refining Company, party of the second part, sole distributors, in the United States of America, of the base for artificial dentures, the United States Registered Trade Mark of same being `Alcolite' the ownership of which is vested in The American Beauty Denture Company, Incorporated, party of the first part, so long as the Altman Gold & Refining Company, party of the second part, take accept and pay for the artificial denture base blanks, each month for the previous month's shipments.

"It is hereby further mutually understood and agreed by the parties hereto, that all previous letters, agreements or contracts, either verbal or otherwise, are hereby cancelled and made null and void, from the month and day and year first above written.

"The party of the first part agrees to furnish to the party of the second part the said artificial denture base blanks known as `Alcolite.'

"It is further mutually understood and agreed, that any violation of any stipulation of the covenants and agreements herein contained, constitutes an immediate annulment of this agreement and contract, and the same shall cease and determine thereby.

"It is further understood and agreed that this contract may be cancelled by the Altman Gold & Refining Company by written notice to The American Beauty Denture Company, Incorporated, party of the first part.

"Witness the following signatures and seals this the day and date first above written.

"The American Beauty Denture Co. Inc. "R. A. Stehley, President. "The Altman Gold & Refining Company. "Joseph Altman, Mgr. Seal."

Although a great deal of testimony has been taken in this cause and many issues have been raised, an analysis of the evidence reveals but two questions in controversy:

First. What are the respective rights of the plaintiffs and defendant Alcolite, Inc., in and to the trade name "Alcolite." And

Second. What, if any, are the plaintiffs' rights and the obligations of the defendant Alcolite, Inc., in regard to the employment of the plaintiffs as distributors of "Alcolite" blanks under the contract of November 9, 1929?

It may here be observed in passing that there is no evidence to connect the defendant Stehley as an individual with the matters involved in this cause, and the case as to him should therefore be dismissed. Throughout this memorandum, therefore, reference to the defendant shall refer to the defendant Alcolite, Inc., alone.

As to the first proposition it is the contention of the plaintiffs that they had for a long period of time advertised and sold dental supplies under the tradename "Alco," and the report of the special master finds such to be the case. The said report also finds that the name "Alcolite" was derived by adding the suffix "lite" to said trade-name "Alco." In the absence of further facts the plaintiffs would under the finding of the special master be entitled to the injunctive relief prayed for in the bill of complaint against the use of this trade-name by the defendant. By the terms of the agreement of November 9, 1929, however, the plaintiffs agreed to the use of said tradename by the defendant and also by that contract, if not prior thereto, ratified its registration in the name of the American Beauty Denture Company, Inc., and the ownership thereof by that company. Plaintiffs seek to avoid the obligations of that agreement in this respect by seeking its reformation to the effect that the use of said trade-name was granted to the defendant only for so long a period as the plaintiffs should continue to be sole distributors for said product. The report of the special master finds that there was no fraud or mistake in the agreement of November 9, 1929, and the evidence clearly shows that said agreement was maturely considered before it was signed by the parties thereto. It is undisputed that several drafts of said contract were considered and destroyed as unsatisfactory by the plaintiff Joseph Altman before the agreement in its present form was accepted. In order that a contract may be reformed it must appear by clear, convincing, and unequivocal evidence that a mutual mistake was made and that the writing does not contain the true intention of the parties thereto at the time it was made. Jarrell v. Jarrell, 27 W.Va. 743; Donato v. Kimmins, 104 W.Va. 200,...