Cazier v. Economy Cash Stores

• Decision Date: 27 February 1951
• Docket Number: No. 7604,7604
• Citation: 228 P.2d 436,71 Idaho 178
• Parties: CAZIER v. ECONOMY CASH STORES, Inc.
• Court: Idaho Supreme Court

Page 436

228 P.2d 436

71 Idaho 178

CAZIER v. ECONOMY CASH STORES, Inc.

No. 7604.

Supreme Court of Idaho.

Feb. 27, 1951.

S. T. Lowe, Burley, H. V. Creason, Rupert, for appellant.

A. H. Nielson, Burley, for respondent.

THOMAS, Justice.

Respondent, (plaintiff below), instituted an action against the appellant, (defendant below), to enjoin and restrain the defendant from carrying on business in Burley, Cassia County, Idaho, under the name and style of Economy Cash Stores, Inc., because of the alleged deceptive and confusingly similarity of the trade name of the plaintiff, Economy Grocery, and the corporate name of the defendant, Economy Cash Stores, Inc.

The respondent has been engaged in the grocery and meat business in Burley, Idaho, under the name of Economy Grocery, for more than eighteen years prior to the institution of the action. The appellant, an Idaho corporation, was incorporated under the laws of Idaho on May 29, 1948, and commenced business in Burley, Cassia County, Idaho, on June 5, 1948, and has since been engaged in the meat and grocery business in Burley, Idaho. The two places of business are located within three blocks of each other, and each has a trading area reaching into the outlying districts and towns.

Soon after the appellant commenced to do business in Burley, respondent protested to the use of its corporate name, because of the deceptive and confusing similarity to the trade name of respondent. Appellant ignored the protest and respondent, within less than two months after appellant commenced business in Burley, that is, on July 27, 1948, filed the present action, and the matter came on for trial without a jury on April 13, 1949.

The respondent has enjoyed a substantial patronage and a successful business under the trade name of Economy Grocery. In the year 1948 the total volume of business of respondent approached $138,000, and was approximately the same in the year 1947; there was a marked decline in the business of respondent during the first three months of 1949, just preceding the trial.

The evidence adduced during the course of the trial reveals that the respondent, after the appellant had commenced its business, experienced difficulty in receiving his merchandise; shipments which were ordered by and billed to the respondent were, on many occasions, delivered to the appellant; on occasions, merchandise ordered by appellant was received by respondent; telephone calls intended for appellant were received by respondent; on at least one occasion a telegram directed to respondent was received by appellant; that prior to the time appellant opened its place of business the respondent had experienced no difficulty whatever in receiving any merchandise which he had ordered.

On occasions people came to the store of the respondent, in response to newspaper or radio advertisements of appellant, to make purchases, thinking that the advertisements which they had either read or heard were those of the respondent. An incident of this nature happened a few days before the trial commenced. Each party received letters which were intended for the other party. The bookkeeping burden for the respondent, due to these instances of confusion, increased to such an extent that it became necessary for respondent to double-check every order of goods received.

A number of people talked to respondent about his ownership of both stores, and thought that respondent did own them both. Quite often customers made purchases at the place of business of respondent, and proceeded to write a check in payment for the merchandise, payable to appellant. In more than eighteen years of operation of business by respondent in Burley under his trade name, he never had any of these difficulties until after the appellant opened its place of business.

In the main, the testimony of the officers and employees of the appellant corroborated the testimony of the respondent with reference to the incidents of confusion above related. As to such other instances they were either uncertain or without any knowledge concerning the incidents. The record is without any substantial dispute as to the facts.

The court, sitting without a jury, made its findings of fact and conclusions of law, and entered judgment enjoining and restraining appellant from doing business under the name of Economy Cash Stores, Inc., or any name in colorable imitation thereof, in Burley, Cassia County, Idaho, or from using a name of which the word 'Economy' was a part, or from advertising under such name in the trade area, and requiring the appellant to remove from its name at Burley, Idaho, the word 'Economy'. The appeal is from the ensuing judgment for the respondent.

The law of trade marks, trade names and form of advertisement are all branches of the general law of unfair competition, and while differing to some extent, necessarily rest upon the same general principle. Bernstein v. Friedman, 62 Wyo. 16, 160 P.2d 227; Nims on Unfair Competition, p. 387.

It is uniformly held that where a person adopts a term, originally geographical, descriptive, or a proper name, as the name of his business, and through his efforts and expenditures develops a reputation and good will for the business or its products, a secondary significance attaches to such name, subject to ownership, which entitles it to protection against unfair competition in a court of equity. American Home Benefit Ass'n, Inc., v. United American Benefit Ass'n, Inc., 63 Idaho 754, 125 P.2d 1010.

With this basic background we will now consider the assignments of error.

The appellant has assigned as error the failure of the court to find that the business of respondent suffered by appellant's use of its corporate name; that the court failed to find that the public would be imposed upon by appellant's use of its corporate name; that the court failed to find that the appellant had attempted or was attempting to palm off its goods as those of respondent; that the court failed to find that the trade name of the respondent had acquired a secondary meaning; that the court failed to find that the appellant was engaged in unfair competition with respondent; that a finding of confusion alone is not sufficient to support a judgment for injunctive relief.

This court has consistently held that the trial court must find on all the material issues tendered by the pleadings and where it fails to so find, the cause should be reversed and the case remanded with instructions to the lower court to make specific findings upon such material issues. Cheesbrough v. Jensen, 62 Idaho 255, 109 P.2d 889. Appellant urges the application of this basic rule, contending that the findings are silent on each issue set forth and enumerated in the preceding paragraph.

The lower court found that the plaintiff sustained the material allegations of his complaint; that the plaintiff had, since the month of December, 1930, carried on and conducted a meat and grocery business under the firm name and style of Economy Grocery at Burley, Cassia County, Idaho; that the defendant commenced to do business in Burley, Cassia County, Idaho, on or about June 5, 1948 and had never, previous to such time, engaged in business in the trade area surrounding Burley, Cassia County, Idaho; the court further found that the names under which both parties were carrying on and conducting their respective businesses in Burley, Cassia County, Idaho, 'are confusingly and deceptively similar and are sufficiently similar to cause confusion and have, in fact, as shown by the evidence, caused confusion in the business operations of the plaintiff and defendant'; the court further found that because of the plaintiff's prior appropriation and actual, prior and continual use of the name Economy Grocery for so many years, plaintiff was entitled to enjoin and restrain the defendant from using the word 'Economy' in its business operations at Burley, Cassia County, Idaho.

The appellant made no request to the court below to make specific findings on any of the issues which are assigned as error on appeal. It is a well settled rule in this jurisdiction that before the aggrieved party may raise the question of the failure of the trial court to find on an issue, he must call the matter to the attention of the trial court either by requested finding, a motion, or otherwise, and where he fails to do so, the error, if any is committed, is waived. Koser v. Bohemian Breweries, Inc., 69 Idaho 33, 202 P.2d 398; Naccarato v. Village of Priest River, 68 Idaho 368, 195 P.2d 370; Nelson v. Altizer, 65 Idaho 428, 144 P.2d 1009; Reid v. Keator, 55 Idaho 172, 39 P.2d 926.

While the trial court's findings must cover the material issues necessary to support a judgment, moreover the failure to find on all the issues of the case will not result in the reversal of a judgment if the findings made by the trial court are not consistent with the theory advanced by the appellant or presented by his pleadings, and such findings made, standing alone, are sufficient to support the judgment entered. Where the findings made are inconsistent with the allegations and theory of appellant's case, it will be presumed that if findings had been made thereon, such findings would have been adverse to appellant. Koser v. Bohemian Breweries, Inc., supra, and cases cited therein.

All reasonable inferences drawn by the trial court where it is a trier of the facts, from the evidence adduced, will be sustained on appeal. Smith v. University of Idaho, 67 Idaho 22, 170 P.2d 404. On appeal this court is entitled to draw the necessary inferences from the trial court's express findings in order to support the judgment. Boas v. Bank of America Nat. Trust & Savings Ass'n, 51 Cal.App.2d 592, 125 P.2d 620. Furthermore, findings of fact are to be liberally construed in favor of the judgment, especially in the absence of a request made to the trial court to make its findings more definite and certain. Fehn v....