Crossman  v. Griggs

• Decision Date: 24 June 1904
• Citation: 186 Mass. 275,71 N.E. 560
• Parties: CROSSMAN at al. v. GRIGGS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 275

71 N.E. 560

CROSSMAN at al.

v.GRIGGS et al.

Supreme Judicial Court of Massachusetts, Norfolk.

June 24, 1904.

Appeal from Superior Court, Norfolk County.

Suit by Alfred H. Crossman and another against Charles A. Griggs and another. From a decree dismissing the bill, plaintiffs appeal. Decree vacated.

George R. Nutter, J. Butler Studley, and Brandeis, Dunbar & Nutter, for appellants.

S. C. Darling and P. B. Runyan, for appellee.

Wm. A. Munroe, for Ewen R. McPherson, intervener.

LORING, J.

Prior to May 15, 1894, the two plaintiffs, Lemuel and Alfred H. Crossman, together with the defendant Griggs and one George H. Bent, were copartners in the business of manufacturing and selling water crackers. On or about May 15, 1894, the plaintiffs conveyed and assigned to the defendant their interest in the real and personal property of the firm, including the good will of the business, and the right to use the name G. H. Bent & Co. in connection therewith. Bent made a similar conveyance and assignment about the same time. The amount due the plaintiffs for this conveyance and the assignment was $10,000. At that time the plaintiffs were indorsers on notes given in the partnership business in the sum of $4,800. They agreed to continue their indorsements until the notes were taken up by Griggs, or that sum was paid to them by him. These notes ultimately were taken up by the plaintiffs. On the same day, May 15, 1894, the defendant conveyed to the plaintiffs the land on which the bakeshop was situated in which the business of the firm was carried on, and the plaintiffs gave the defendant a bond to reconvey the land conveyed upon the payment of the $14,800 aforesaid, with interest at 6 per cent. per annum. On the same day, and as part of the same transaction, the defendant executed and delivered to the plaintiff a paper in which, after reciting the debt of $14,800, the deed, the bond, and the fact that he (the defendant) is ‘the owner of the name or trade-mark of ‘G. H. Bent & Co.’ formerly owned by said Lemuel Crossman, A. H. Crossman, George H. Bent and myself doing business as G. H. Bent & Co.,' he agrees ‘in addition to the security above mentioned not to sell, dispose of or exchange in any way my interest in the name or trade-mark of ‘G. H. Bent & Co.’ without their consent in writing being first obtained until said sum of fourteen thousand eight hundred dollars shall be paid to said Lemuel and A. H. Crossman with interest.' On August 30, 1898, the plaintiffs brought a bill against Griggs, alleging these facts, and on March 8, 1899, a decree was entered declaring that the defendant owed the plaintiffs $20,830.21, of which sum $17,470.80 was secured by an equitable mortgage upon the real estate, and ‘upon the name and trade-mark ‘G. H. Bent & Co.,” and the balance, $3,359.41, was unsecured, directing the real estate and the name and trade-mark to be sold as an entirety, and appointing a commissioner to conduct the sale. From this decree the defendant took an appeal on March 10, 1899. On March 16, 1899, one Ewen R. McPherson filed a petition in the above cause in the superior court, alleging that Griggs was indebted to him in the sum of $3,000, and that on May 16, 1894, he executed ‘an assignment in pledge of the name or trade-mark ‘G. H. Bent & Co.”; that the petitioner had ‘no knowledge of the alleged rights of the plaintiffs in said name or trade-mark, or of the proceedings in said cause, until after the final hearing’; and praying that he be admitted a party, that the ‘decree may be vacated or modified to protect’ his rights in said name or trade-mark, and for general relief. Annexed to this petition is a paper in which it is recited that Griggs is indebted to McPherson in the sum of $3,000; that Griggs is ‘the owner of the name or trade-mark ‘G. H. Bent & Co.’ formerly belonging to Lemuel Crossman, A. H. Crossman, George H. Bent, and myself doing business under the firm name of G. H. Bent & Co., which firm is now dissolved'; and thereupon Griggs covenants with McPherson ‘that so long as my indebtedness to said E. R. McPherson shall continue unpaid I will not assign, transfer, or sell said name or trade-mark to any person or persons without having first obtained the consent in writing of said E. R. McPherson. And I hereby further covenant that in case my said note shall not be fully paid and discharged at maturity, four months after the date thereof as aforesaid, then I will upon the written demand of said E. R. McPherson assign and transfer said name or trade-mark absolutely to any person or persons whom the said E. R. McPherson shall designate in such written demand. And it is hereby agreed that in case of failure as aforesaid to discharge the said note at maturity, then at any time after such failure the said E. R. McPherson may assign his rights under and by virtue of this instrument and the covenants by me therein contained shall be binding upon me in the hands of such assignees.’ On a motion filed by Griggs on April 20th, an order was made dated April 18th, directing the commissioner to adjourn the sale until further order of the court. From this order the plaintiffs appealed. On May 2d the following order, dated April 29, 1899, and indorsed on the back of McPherson's petition, was filed: ‘The within-named petitioner, Ewen R. McPherson, is hereby admitted as a party to the above-named cause.’ From this order the plaintiffs appealed. On May 2d an order dated April 29, 1899, was filed, in which it is stated that the judge was of opinion ‘that the decree entered in this case March 8, 1899, so far affects the merits of the controversy that the matter ought to be determined by the Supreme Judicial Court before further proceedings are had thereunder. It is therefore ordered that all proceedings thereunder be stayed pending the appeal of the defendants from said decree.’ And from this order an appeal was taken by the plaintiffs. On May 8, 1899, the plaintiffs filed a bill of exceptions, which was allowed on June 9, 1899. This stated exceptions to the order of April 20, 1899, adjourning the sale, and to the order of May 2, 1899, staying all further proceedings under the decree of March 8, 1899. On December 4, 1899, a rescript was sent down by this court, ‘Appeal dismissed as prematurely entered.’ On January 2, 1900, the defendant filed an answer to McPherson's petition, and a decree was entered January 4, 1900, in which McPherson was made a party defendant, and ordered to answer the bill on or before January 19, 1900. From this the plaintiffs appealed. On January 19, 1900, McPherson filed a demurrer and answer. On March 20th the plaintiffs filed motions to strike out this demurrer and answer, which motions were denied, and the plaintiffs appealed. Thereupon the plaintiffs joined issue, and the case was heard on the merits. The judge found that the real estate conveyed May 15, 1894, by Griggs was conveyed as security for payment of the $14,800, and that, ‘as a part of the same transaction on May 15, 1894, the defendant Griggs executed the agreement set forth in Exhibit A with reference to the sale, disposition, or exchange of the name or trade-mark of G. H. Bent & Co. As I construe such last agreement, I rule, as matter of law, that it conveys no interest in such trade-mark or name, by grant or assignment or declaration of trust, to the plaintiffs. It confers upon the plaintiffs no equitable lien. I therefore rule that the plaintiffs have no claim as mortgagees, equitable or otherwise, in the trade-mark or name of G. H. Bent & Co.’ He also found ‘that the real estate conveyed by the mortgage * * * was the land occupied and used in the business of G. H. Bent & Co. previous to May 15, 1894, but that such mortgage and agreement * * * did not expressly or impliedly convey to the plaintiff the personal property, the business, or the good...