Children's Bootery v. Sutker

• Decision Date: 16 January 1926
• Citation: 107 So. 345,91 Fla. 60
• Parties: CHILDREN'S BOOTERY et al. v. SUTKER.
• Court: Florida Supreme Court

107 So. 345

91 Fla. 60

CHILDREN'S BOOTERY et al. v. SUTKER.

Florida Supreme Court

January 16, 1926

En Banc.

Suit by the Children's Bootery and others against Thomas C Sutker, trading as the Children's Bootery, in which defendant filed a cross-complaint. From an order dissolving a temporary injunction in favor of complainants, and an order of injunction against plaintiffs, and an order of injunction against complainants, they appeal.

Orders affirmed.

Briefly stated, the doctrine of 'ejustdem generis,' when employed as an aid to statutory construction, is that, where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated. The rule, however, does not necessarily require that the general provision be limited in its scope to the identical things specifically named. [Ed. Not.--For other definitions, see Words and Phrases, First and Second Series Ejusdem Generis.]

Although trade-marks and trade-names each possess differing characteristics which distinguish them, inter se, they are nevertheless sufficiently similar in their general nature, as well as in their acquisition, function, and use to be regarded as the same species or kind of property within the doctrine of ejusdem generis, when applying the same, for purposes of construction, to section 70a of the Bankruptcy Act of 1898 (U. S. Comp. St. § 9654).

Under the provision of subdivision 5, of section 70a of the Bankruptcy Act of 1898 (U. S. Comp. St. § 9654) a trade-name, lawfully identified with the business of a bankrupt at the time of his adjudication passes to the trustee as an asset of the bankrupt's estate.

An involuntary petition in bankruptcy described the bankrupt as 's---, trading as Children's Bootery.' Pursuant to the adjudiciation and appropriate subsequent proceedings, the trustee advertised that he would sell 'the entire stock of ladies', misses', and children's hosiery, findings and store fixtures of S---, trading as Children's Bootery.' Held, that the action of the trustee in specifically selling and conveying the good will and trade-name of the bankrupt's business to oen who contemporaneously purchased, as an entirety, the physical assets of the business, including the fixtures, the sale being made, as advertised, at the bankrupt's former business location, was within the intendment of the notice of sale.

Syllabus by the Court

SYLLABUS

Under doctrine of 'ejusdem generis,' where enumeration of specific things is followed by more general word or phrase, such general word or phrase will be construed to refer to things of same kind or species as those specifically enumerated.

Trade-marks and trade-names held within doctrine of ejusdem generis in construing Bankruptcy Act (Bankruptcy Act. § 70a [U. S. Comp. S.t § 9654]).

Trade-name, lawfully identified with business of bankrupt, held to pass to trustee in bankruptcy (Bankruptcy Act, § 70a, subd. 5 [U. S. Comp. St. § 9654]).

Trade-name held to exist only as incident of business in which it was lawfully acquired and with which it remains identified. A trade-name exists as an incident of the business in which it was lawfully acquired and with shich it remains identified. As a mere abstract right, having no reference to any particular property, commodity, or business, it cannot exist.

Sale of good will and trade-name of bankrupt's business to purchaser of physical assets thereof held within notice of sale.

Corporate name may not be used in manner resulting in fraud or deception; in proper cases, use by corporation of its name, so as to result in fraud or deception, will be enjoined.

A corporate name, although derived through authority of the state, may not be used in a manner which will result in fraud or deception. In granting a corporate charter, the state does not thereby adjudicate the legal right of the corporation to the unlimited use of the corporate name chosen; and in proper cases the use by a corporation of its name in such manner as to result in a fraud or deception will be enjoined.

Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.

COUNSEL

George C. Bedell and Sabel & Reinstine, all of Jacksonville, for appellants.

Johnson & McIlvaine, of Jacksonville, for appellee.

OPINION

STRUM J.

In 1920 the appellant Samuel Sawilowsky entered the retail shoe business in Jacksonville, dealing principally in children's shoes, stockings, and their accessories. As a means of identifying his business before the public, and for the purpose of attracting and retaining patronage, he adopted the trade-name, 'The Children's Bootery,' under which name he conducted his business in Jacksonville continuously until August 17, 1922, when he was adjudiciated an involuntary bankrupt. The petition in bankruptcy, and the order of adjudiciation. styled the bankrupt as 'Samuel Sawilowsky, trading as Children's Bootery.'

At the first meeting of creditors, it was resolved:

'That the trustee be, and he is hereby, authorized to sell the assets of the bankrupt at public or private sale and subject to the approval and confirmation of the referee without any further meeting of creditors or further notice of such sale.'

An order of sale was made in due course by the referee in bankruptcy, directing the trustee to 'offer the stock of merchandise and fixtures of the above-named bankrupt sale at public outcry, Tuesday, September 26, 1922,' pursuant to which the trustee advertised for sale 'the entire stock of ladies', misses', and children's shoes, hosiery, findings, and store fixtures of Samuel Sawilowsky, trading as Children's Bootery, bankrupt, 115 Main street, Jacksonville, Fla., subject to confirmation of the referee.' The trustee subsequently reported, amongst other things, that at the time and place appointed in the advertisement he 'offered the stock and fixtures (of the bankrupt) together with the good will and trade-name, and the highest and best did obtainable was from Mr. Thomas C. Sutker for the sum of $10,020,' and recommend that such sale be confirmed. The sale was confirmed by order of the referee in bankruptcy on September 27, 1922, in which order the sale of the 'good will and trade-name' of the bankrupt was expressly recited. The trustee executed to the purchaser. Thomas C. Sutker, who is the appellee here, a bill of sale conveying to Sutker:

'The good will and trade-name known as the Children's Bootery and identified with the store formerly conducted by the bankrupt, Samuel Sawilowsky, trading as the Children's Bootery, 115 Main street, Jacksonville, Fla., Duval county. The entire stock in trade of shoes, hosiery, findings, and fixtures located in and at the store, 115 Main street, Jacksonville, Fla., Duval county.'

On September 30, 1922, the appellee, Sutker, reopened the store at No. 115 Main street as a retail shoe store, under the name of 'The Children's Bootery.' The right to continue the use of such trade-name as a designation for that business is claimed by appellee by virtue of the proceedings above referred to in the bankrupt estate of appellant Sawilowsky.

In September, 1922, Sawilowsky, the bankrupt, and his coappellants Jacob L. Jacobs and Hyam Joel applied to the Governor of Florida for letters patent incorporating themselves under the laws of Florida with the corporate name 'The Children's Bootery,' for the purpose of operating a retail shoe business, under the management of Sawilowsky, at 103 Main street, which location is on the same said of the street, and two doors removed from the location of the store which Sawilowsky, prior to his adjudiciation in bankruptcy, conducted as an individual under the trade-name of 'The Children's Bootery.' Letters patent were issued in due course, and the corporation opened its store for business at 103 Main street, advertising and holding itself out to the public as 'The Children's Bootery.'

On October 5, 1922, Sawilowsky and his associates Jacobs and Joel, proceeding in the District Court of the United States for the Southern District of Florida, which was the court by which Sawilowsky was adjudicated a bankrupt, procured a rule against Sutker, seeking to have the bill of sale executed by Sawilowsky's trustee delivered up for correction, by eliminating from the description of the property thereby conveyed all reference to the good will of the bankrupt's former business and the trade-name 'The Children's Bootery.' Sawilowsky and his associates also filed in the court last mentioned a petition to review the order of the referee in bankruptcy confirming the sale of the bankrupt's assets. Upon hearing, the rule was discharged (In re Sawilowsky [D. C.] 284 F. 158), and the petition to review was denied (In re Sawilowsky [D. C.] 284 F. 975), both of which orders were subsequently affirmed by the United States Circuit Court of Appeals, Fifth Circuit. sawilowsky v. Brown (C. C. A.) 288 F. 533.

Appellant The Children's Bootery, a corporation, and its coappellants Sawilowsky, Jacobs, and Joel, who were the incorporators of the corporate appellant, on October 11, 1922, exhibited their bill of complaint in the circuit court of Duval county, seeking to have appellee, Sutker, enjoined from the further use of the name 'The Children's Bootery.' The chancellor ordered a temporary injunction, as prayed, but later entered a further order dissolving same. Subsequently, upon the showing made by the appellee, Sutker, who was defendant and cross-complainant below, the chancellor entered an order enjoining appellants, complainants below, from 'any use of the words 'The Children's Bootery' as a trade-name in marks, brands, signs, labels, or advertising matter.' The...