Boggs v. Duncan-Schell Furniture Co.

• Decision Date: 23 October 1913
• Citation: 143 N.W. 482,163 Iowa 106
• Parties: C. C. BOGGS, Appellee, v. DUNCAN-SCHELL FURNITURE CO., and H. C. DUNCAN, Appellants
• Court: Iowa Supreme Court

143 N.W. 482

163 Iowa 106

C. C. BOGGS, Appellee, v. DUNCAN-SCHELL FURNITURE CO., and H. C. DUNCAN, Appellants

Supreme Court of Iowa, Des Moines

October 23, 1913

Appeal from Lee District Court.--HON. H. BANK, JR., Judge.

ACTION to recover damages for injury claimed to business. It appears that plaintiff was a sewing machine agent and defendant a retail merchant in the same city, and defendant, for the purpose of injuring plaintiff in his business, wrongfully and maliciously advertised to the public it would sell the same machine handled by the plaintiff at half the price for which the plaintiff was offering them for sale; that the sole purpose of the defendant in so doing was to ruin plaintiff in his business. Cause tried to a jury. Verdict and judgment for the plaintiff. Defendants appeal.

Affirmed.

W. J Roberts and D. F. Miller, for appellants.

Hughes & McCoid, for appellee.

GAYNOR J. WEAVER, C. J., and DEEMER, and WITHROW, JJ., concur.

OPINION

GAYNOR, J.

Plaintiff claims that on the 1st day of February, 1910, he was the exclusive agent for the sale of the New Improved White sewing machine in Lee county and adjoining counties; that the defendant Duncan-Schell Furniture Company, prior to that time, had been selling the same machines for profit, or as agents for the said sewing machine company; that, after plaintiff had secured the sole and exclusive agency for said machine, and while he was selling the same as agent, the defendants, for the purpose of destroying plaintiff's business, and breaking him up financially, and putting him out of business, maliciously and willfully procured various old styles of said White sewing machine, and advertised the same at a price of $ 24.75, and published that they were selling the latest improved drop head White sewing machine for that price, the same kind of machine which the plaintiff was handling, and was selling for $ 45; that the selling price of the sewing machines, and the price at which the defendants sold the machine during the time the defendant company was the agent, was $ 45; that defendants further advertised and published that they had just received new White sewing machines, both rotary and vibrator, which they would sell at $ 24.75; that they did not have any such machines, and the statement that they had just received them was untrue; that the defendants had not received, at any time, any new White sewing machines of the rotary type; that they further falsely said that the machines just received by them were of the latest pattern of said machine. The usual market price of the latest improved White sewing machine was $ 45, and that the defendants knew this at the time. Plaintiff says all the foregoing acts were committed by the defendants willfully and maliciously, and for the sole purpose of driving the plaintiff out of business in the sale of his machines, and for the purpose of falsely putting the plaintiff in the light of a dishonest dealer, and unworthy of patronage, in that he was attempting to sell a $ 25 machine for $ 45. Defendants' answer to plaintiff's claim is a general denial. Upon the issues thus tendered, the cause was tried to a jury, and verdict and judgment for the plaintiff.

It appears from the evidence that the defendant Duncan inserted in one of the daily papers issued in Keokuk on or about March 2d the following:

Duncan-Schell Furniture Co. March Sale Special.

[Followed by a cut of a White Sewing Machine.]

Automatic Drop Lift White Sewing Machine, both

Vibratory and Rotary, Latest Pattern

$ 24.75

(And again:)

March Sale Prices on Sewing Machines.

More White Sewing Machines just received. March

sale price on White Sewing Machines, the latest pat

terns, both Vibratory and Rotary

$ 24.75

(Again:)

March Sale on Special Sewing Machines.

[With cut of White Machine in advertisement.]

More White Sewing Machines just received.

March Sale Special.

White Sewing Machines in latest patterns, both

vibratory and rotary

$ 24.75

(Again, with the same heading:)

The March Sale of Drop Head White Sewing Ma-

chines of the latest pattern

$ 25.00

(Again, with the same caption:)

$ 25.00 buys the latest improved 6 Drawer Top Head White Sewing Machine, with Automatic Lift and best set of attachments.

(Again, the same caption, with cut of White Sewing Machine:)

The best machine at any price

$ 25.00

Your money back in 365 days if you are not con-

vinced you have the best on earth. White Sewing Ma-

chine with White Sewing Machine Co.'s guarantee

$ 25.00

(Then in September appeared the following advertisement:)

Duncan-Schell Furniture Co.'s Annual September Sale.

$ 25.00 buys the latest improved 6 Drawer Drop Head White Sewing Machine, with Automatic Lift and best set of attachments.

Then follows practically the same advertisement that appeared in March.

It appears that, at the time these advertisements were made, the plaintiff was the sole and exclusive agent for the sale of the machines so advertised by the defendants. The plaintiff testifies that on or about the 1st of February the defendant Duncan called him into his store, and said: "Boggs, I understand that you are going to take the agency for the White sewing machine. You know you have no money, and you cannot get the machines, and, if you do get them, I will run you out of business with the same machine." One Leach, who was the state agent in Iowa for the White sewing machines, testified: "At the time I talked with Duncan, before we changed agents, he talked considerably about Boggs. He told me that, if we gave the agency to Boggs, he could not run, because he had no money, and they would run him out of business in less than six months. This conversation was about the 1st of February."

The plaintiff further testified that, after these advertisements came out in March, stating that the defendants had received another shipment of machines to be sold at $ 24.75, he went to Mr. Duncan, and asked him if he had any new machines, and he said he had second-hand ones. "Then, turning to me, he said: 'Boggs, have we starved you out yet? If you are not starved out yet, we will soon see that you are starved out.' He said he had a right to put in the advertisements in the paper because he had old machines that he wanted to sell." Leach further testified that Duncan and the Duncan-Schell Furniture Company did not buy any White sewing machines of the White Sewing Machine Company during 1910, or any time since that; that in September or October, after these advertisements were put out by the defendants, he went to the defendants to buy these sewing machines they had on hand. "I told him I came in to buy the White sewing machines he had, and he said he didn't want to sell them. I told him that they were advertising them, and that what they were doing was hurting Mr. Boggs and the White Sewing Machine Company, and I wanted to buy them. Duncan said he would not sell them. I told him I came to buy them at his price, and he said he did not want to sell them at all; that he wanted to keep them as souvenirs. When I told him that he was hurting Boggs by his advertisements, he said he didn't care for that. He advertised as he pleased." These conversations alleged to have been had with Duncan, were all denied by Duncan. This left it a question of fact for the jury to determine.

It appears from the evidence that, at the time Boggs took this agency for the White Sewing Machine Company, the defendants were engaged in a general mercantile business, handling sewing machines, carpets, rugs, furniture, stoves, washing machines, and other like articles; that they handled four makes of sewing machines, the New Home, Standard, the Duncan-Schell Special, and the White; that the exclusive agency for the White was given by the White Sewing Machine Company from and after the 1st of February to the plaintiff, Boggs.

It appears that the Duncan-Schell Furniture Company, prior to the time Boggs became the sole agent, had handled these White sewing machines, and sold them at retail, and had done so for a number of years; that Boggs was in the service of the defendant company as its agent in disposing of those machines; that, at the time Boggs quit, the company had twelve White machines on hand, eight in its Keokuk store, and four in its Carthage store; the latter were brought to Keokuk in March, 1910; that they had bought these machines outright from the White Sewing Machine Company. There is evidence that these machines were not the latest improved pattern of the White machine, and did not have the latest improvements, and did not have the attachments advertised; that they had not just received them, as stated in the advertisement, and that they were not furnished with the improvements advertised; that the machines handled by the plaintiff were of that character and kind, and had the latest improvements.

So it is apparent that, upon the issues tendered by the plaintiff there was evidence upon which the jury might well find all the material facts, upon which plaintiff bases his right to recover, established, both as to what the defendants did, and as to the motive by which they were actuated in the doing. We do not understand that the defendants seriously questioned this, but contend that, conceding the facts to be established as alleged, and as established by the evidence, still the plaintiff has no right to recover: (1) Because the defendants had an absolute right to publish advertisements complained of, and their motive in so doing cannot be questioned. (2) That, inasmuch as the advertisements complained of made no attack upon the plaintiff, or upon the machines kept for sale by the plaintiff, no legal right of Boggs was assailed by the defendants, and whether they thought good or ill of him when they published ...