Butterick Pub. Co. v. Fisher
| Decision Date | 24 June 1909 |
| Citation | 89 N.E. 189,203 Mass. 122 |
| Parties | BUTTERICK PUB. CO., Limited v. FISHER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Saltonstall Dodge & Carter and Robt. G. Dodge (Jas. B. Sheehan, of counsel), for plaintiff.
John H Casey, N. N. Jones, and Wm. F. White, for defendant.
1. We are of opinion that the contract sued on is not within Rev Laws, c. 56,§ 1. It was held by this court in Com. v Strauss, 188 Mass. 229, 74 N.E. 308, that that statute being a highly penal one is to be construed strictly, and that so construed it does not prohibit a sale at a reduced rate in consideration of an agreement to sell the vendor's goods alone. It is not necessary, therefore, to consider whether the defendant was the plaintiff's agent as matter of law and so within the exceptions stated at the end of the section.
2. The defendant's objection that no decree can be had in the absence of the McCall Pattern Company is not well taken. No relief is sought against that company. It is usual to join such a person as a proper party defendant; and in Strobridge Lithographing Co. v. Crane, 58 Hun, 611, 12 N.Y.S. 834, it was held that under a statute giving a proper party defendant a right to intervene it was error to refuse to admit a person standing in the position of the McCall Company on his making application therefor. We know of no case or principle which makes the McCall Company a necessary party defendant.
3. The next question is whether the plaintiff was entitled to have the defendant enjoined from violating his negative agreement 'not to sell or permit to be sold on the premises of the party of the second part during the term of this contract any other make of patterns.'
It may be taken to be settled in this commonwealth that the question whether a contract will or will not be specifically enforced depends upon the question whether the thing contracted for can be purchased by the plaintiff, and whether damages are an adequate compensation for a breach. See Clark v. Flint, 22 Pick. 231, 33 Am. Dec. 733; Gloucester Isinglass & Glue Co. v. Russia Cement Co., 154 Mass. 92, 27 N.E. 1005, 12 L. R. A. 563, 26 Am. St. Rep. 214; New England Trust Co. v. Abbott, 162 Mass. 148, 38 N.E. 432, 27 L. R. A. 271; Howe v. Watson, 179 Mass. 30, 60 N.E. 415; Beekman v. Marsters, 195 Mass. 205, 80 N.E. 817, 11 L. R. A. (N. S.) 201, 122 Am. St. Rep. 232.
It may also be taken to be settled, following the decision in Lumley v. Gye, 1 De. G., M. & G. 604, that the specific performance of a negative covenant will not be denied in a proper case because an affirmative covenant with which the negative covenant is allied is in kind one which a court of equity does not specifically enforce. See Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664; Ropes v. Upton, 125 Mass. 258; Anchor Electric Co. v. Hawkes, 171 Mass. 101, 50 N.E. 509, 41 L. R. A. 189, 68 Am. St. Rep. 403; United Shoe Machinery Co. v. Kimball, 193 Mass. 351, 79 N.E. 790. See also, Rice v. D'Arville, 162 Mass. 559, 39 N.E. 180.
The defendant's covenant not to sell or permit to be sold on his premises any other make of patterns is a covenant where the thing contracted for cannot be purchased by the plaintiff, and where damages are not an adequate compensation. The plaintiff's business consists in making and selling patterns for women's and children's garments. For the purpose of pushing its business it creates an agency in each of the principal cities and towns for the sale of its patterns. The agent also agrees to buy a certain number of its pamphlets and catalogues, the pamphlets to be resold as a profit and the catalogues to be distributed gratuitously. For example, in the contract made between the plaintiff and the defendant the plaintiff agreed to sell to the defendant its patterns at 50 per cent. of the retail price, and the defendant agreed to keep on hand for sale (with the exception of four months there named) patterns to the amount of $400. The plaintiff agreed to sell to the defendant its pamphlets, called Butterick Metropolitan Fashions, at seven and one-half cents apiece, the retail price being ten cents, and the defendant agreed to buy thirty thousand sheets of said Fashions. The defendant also agreed to buy one thousand catalogues for $20 a thousand, to be distributed gratuitously. The defendant further agreed to keep the patterns on the ground floor of the store and to give through a 'lady attendant' proper attention to the sale of them.
It appeared in evidence that the defendant's store was easily the largest dry goods store in Newburyport, and that it is of advantage to have such patterns sold in the same store where goods are sold for making women's and children's garments.
It is manifest that the plaintiff cannot get the same return from a smaller store and that its loss from the defendant's breach of his contract cannot be measured or made good by giving it damages.
The case is within the decided cases. An injunction was issued in a similar case in the Supreme Court of New York, and that decision was affirmed by the Court of Appeals. Standard Fashion Co. v. Siegel-Cooper Co., 30 A.D. 564, 52 N.Y.S. 433, on appeal 157 N.Y. 60, 51 N.E. 408, 43 L. R. A. 854, 68 Am. St. Rep. 749. Moreover, this court in Butterick Publishing Co. v. Boynton, 191 Mass. 175, 77 N.E. 705, where there was no negative covenant, said that if there had been one an injunction would have issued. In Catt v. Tourle, L. R. 4 Ch. 654, violation of a covenant not to buy beer for sale from anybody but the plaintiff was enjoined. The covenant there was in a lease, but that was held to be immaterial in the original case of Lumley v. Wagner, 1 De G., M. & G. 604. See pages 617, 618. The same point was decided in Metropolitan Electric Supply Co., Ltd., v. Ginder, [1901] 2 Ch. 799. The negative covenant which was enjoined in that case was a covenant not to take electricity from anybody but the defendant and was not contained in a lease. For other cases, see Western Union Telegraph Co. v. Rogers, 42 N. J. Eq. 311, 11 A. 13; Myers v. Steel Machine Co., 67 N. J. Eq. 300, 57 A. 1080, on appeal 68 N. J. Eq. 795, 64 A. 746; Jones v. Williams, 139 Mo. 1, 39 S.W. 486, 40 S.W. 353, 37 L. R. A. 682, 61 Am. St. Rep. 436; Ferris v. American Brewing Co., 155 Ind. 539, 58 N.E. 701, 52 L. R. A. 305; Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616, 79 N.E. 313; Feigenspan v. Nizolek, 71 N. J. Eq. 382, 65 A. 703. For a collection of cases, see Joyce on Injunctions, §§ 451-457.
4. The defendant has contended that in the case at bar the plaintiff is not now and never has been in a position to ask for specific performance of the contract between them. He bases this contention on the finding of the judge who heard the case that
But we are of opinion that this finding was plainly wrong.
During the negotiations which led up to the written...
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...of the Massachusetts Antitrust Act, see Associated Perfumers v. Andelman , 55 N.E.2d 209 (Mass. 1944); Butterick Publ’g Co. v. Fisher , 89 N.E. 189 (Mass. 1909); Commonwealth v. Strauss , 74 N.E. 308 (Mass. 1905). 85. 292 F. Supp. 2d 198 (D. Mass. 2003). 86. Id. at 216-18. 87. Id. 88. Commo......