Bankers' Trust Co. v. Dockham

• Decision Date: 20 May 1932
• Citation: 181 N.E. 174,279 Mass. 199
• Parties: BANKERS' TRUST CO. et al. v. DOCKHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 199

181 N.E. 174

BANKERS' TRUST CO. et al.

v.DOCKHAM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1932.

Appeal from Superior Court, Suffolk County; Gray, Judge.

Suit by Bankers' Trust Company and others against Stevens Dockham and others. From decree for defendants, petitioners appeal.

Affirmed.

S. D. Elmore and G. B. Silton, both of Boston, for appellants.

P. H. Kelley, of Boston, for appellees.

WAIT, J.

This is an appeal from a decree of the superior court. The evidence given at the hearing before the trial judge of that court and taken by a stenographer appointed pursuant to Equity Rule 29 is before us as well as the findings of fact made by the judge. Such a record requires this court to consider the evidence reported and to form our independent judgment with regard to the truth of the findings upon which the decree is predicated. Where the material facts appear from uncontradicted or documentary evidence and the inferences to be drawn therefrom, the findings of the trial judge may be disregarded; but where those facts must be ascertained from conflicting oral testimony, the findings of the trial judge, who has seen and heard the witnesses and has been in position to judge thereby of the credit to be given to contradictory evidence, will be given great weight and will not be set aside unless plainly wrong. Old Corner Book Store v. Upham. 194 Mass. 101, 106, 80 N. E. 228,120 Am. St. Rep. 532;Berman v. Coakley, 257 Mass. 159. 162,153 N. E. 463;Draper v. Draper, 267 Mass. 528, 531, 166 N. E. 874;Dwyer v. Dwyer (Mass.) 176 N. E. 619;Brooks v. Bennett (Mass.) 177 N. E. 685.

The essential contention of the plaintiffs is that the defendant Dockham is bound by agreement not to compete with a publication owned by them as executors and trustees under the will of Alvah Davison for a period of ten years from September 10, 1926; that he is now competing in violation of the agreement, and that the defendant MacElhinney, with knowledge of the agreement and its breach, is joining in the competition. The bill was brought to restrain them, and for the recovery of damages arising from the alleged wrong.

There is no dispute with regard to the following facts: Dockham was the president, general manager, and a principal stockholder in a Massachusetts corporation formed by him to continue a business of trade publications begun and carried on for many years by his father. The stock was held by himself, his wife, his father-in-law and a few relatives of his wife. In 1924 desiring, for himself and the corporation, to dispose of the publications, he intrusted brokers in New York with the sale. In 1926 Alvah Davison, who had carried on a similar publication business in New York under the name of Davison Publishing Company, made, in writing, an offer to the broker for one of the Dockham publications. He desired to eliminate competition with his publication, and to assist the trade by lessening the burden of supporting two books where one would answer its needs. The broker transmitted the offer to Dockham. After correspondence and oral communication of the broker with Davison and Dockham, a draft agreement was prepared by the broker and transmitted to Dockham for a sale of ‘Dockham's American Report And Directory of the Textile Manufacture and Dry Goods Trade’ ‘and its assets' by the Dockham Publishing Company to Davison Publishing Company, Alvah Davison, proprietor. The assets to be delivered were described as the trade-name (as above), the good will in connection therewith, the copyright of the name, active advertising contracts, card records, all unsold copies of the 1924 edition, all advertising contracts and book orders for the directory which might be received subsequent to the date of this contract, and all other data, reports and records which were part of and necessary to the business of publishing the directory. A paragraph 5 bound the seller not to ‘become interested in the publishing of any directory in the textile field, which shall compete for a period of ten years with the present publications of Davison PublishingCompany.’ This paragraph...