Diangeles v. Scauzillo

Decision Date29 June 1934
Citation287 Mass. 291
PartiesJOHN DIANGELES v. NICHOLAS SCAUZILLO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

November 17, 1932.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.

Unlawful Interference. Agency, Agent's duty of fidelity. Trust What constitutes.

A manufacturing baker employed a salesman to take the place of a former employee by an oral contract which did not include an agreement that the salesman, on termination of his employment, would not enter the employment of a competitor. The employer gave no list of customers to the salesman, but the former employee showed him a book in which were written names and addresses of customers, and he copied them in a book furnished by himself, and not by the employer. He continued in the employment for eight years, during which many old customers were lost and several new ones were procured by him, the business increased and the territory was extended; but he acquired no information respecting the employer's business in the nature of trade secrets, and his knowledge of his customers and their requirements involved no special skill but was acquired by going over his routes and by soliciting new customers. At the end of the eight years, he left the employment and became employed by a competitor of his former employer to work in the same territory, taking with him his book, in which, without having been directed to do so by his former employer and not for any improper purpose, he had written names and addresses of customers. He refused on demand to deliver to his former employer information concerning new customers acquired by him during the eight years. The former employer thereupon by a suit in equity sought to enjoin him from making use of his list and to require him to deliver it to the plaintiff, and damages.

Although the plaintiff, after leaving the defendant's employ delivered bread to some customers without stating whose bread it was, he did not tell any of them that he was selling the plaintiff's bread. Held, that

(1) In the circumstances, the defendant's conduct in entering the new employment and seeking the patronage of customers who became such in the course of the previous employment was not a breach of any duty which he owed to the plaintiff; his knowledge concerning such customers was personal to the defendant and was not surrendered to the plaintiff;

(2) The mere fact that the defendant originally had learned from the former employee names and addresses of customers, which were not trade secrets, did not deprive him of the right, after he left the plaintiff's employment, to seek the patronage of persons to whom he had delivered bread while working for the plaintiff;

(3) The mere fact that the defendant sold bread to some customers without stating whose it was did not entitle the plaintiff to relief;

(4) The defendant should not be enjoined from making use of his list of customers in his new employment: he was entitled to make use of such information as part of his ordinary experience gained in his work for the plaintiff, and he was not precluded from doing so, in the circumstances, because he had made a written memorandum of that information while employed by the plaintiff.

(5) The plaintiff was not entitled to have turned over to him by the defendant the book of names and addresses;

(6) The plaintiff was not entitled to be furnished by the defendant with information in regard to the customers obtained by the defendant, nor to damages by reason of the defendant's failure to furnish it: such information, being a part of the defendant's experience gained in his work for the plaintiff, and not being confidential, was not held by the defendant upon trust for the plaintiff.

BILL IN EQUITY, filed in the Superior Court on December 19, 1930, and described in the opinion.

The suit was referred to a master. Material facts found by him and stated in a report which was confirmed, and a final decree entered by order of F. T. Hammond, J., are described in the opinion. The plaintiff appealed from the final decree.

M. B. Ulin, (M.

N. Abrahamson with him,) for the plaintiff.

O. Segal, for the defendant, submitted a brief.

FIELD, J. This is a suit in equity. The plaintiff, a manufacturing baker, sought by his bill to enjoin the defendant, a former salesman, from holding himself out as an agent and employee of the plaintiff, from representing that the merchandise sold by him is manufactured by the plaintiff, from using the name of the plaintiff or of his business in connection with the sale of merchandise, and from making use in any way of the list of names and customers now in his possession, the property of the plaintiff. The plaintiff also sought an order that the defendant deliver to him "a list containing the names and addresses of all persons, firms or corporations with whom the defendant did business while acting as the agent and employee of the plaintiff," an accounting, and damages for the defendant's representations that he was the agent and employee of the plaintiff after his agency had terminated, and for his refusal "to furnish to the plaintiff the list of customers obtained by him and to whom he sold merchandise while in the employment of the plaintiff." The case was referred to a master who made a report which was confirmed. A final decree was entered that the defendant pay to the plaintiff the sum of $16.28 with costs, and the plaintiff appealed.

The facts found by the master include the following: The plaintiff was for many years a manufacturing baker who sold bread at his shop and also to outside customers from a delivery wagon. Prior to May, 1922, he employed one Serignano as a salesman to deliver bread to outside customers. On or about May, 1922, the plaintiff by an oral contract employed the defendant, who had never been a salesman of bread, to take the place of the former employee to deliver bread and the defendant continued in such employment as the plaintiff's only salesman until November 15, 1930, when he left the plaintiff's employment and went to work for another baker. The defendant went over the same routes and into the same territory selling the bread of his new employer to many of the customers to whom he had formerly sold the plaintiff's bread, and the plaintiff's business on these routes fell off and the plaintiff suffered financial loss.

The defendant "acquired no information respecting the plaintiff's business in the nature of trade secrets," and his knowledge of the plaintiff's customers and their requirements involved no special skill, but he "acquired a knowledge of plaintiff's customers on said routes by going over the said routes and by soliciting new customers." He used this knowledge in selling his new employer's bread. But he had talked with some of the plaintiff's customers immediately after he left the plaintiff's employment and had told them that he did not have any more of the plaintiff's bread but was selling his new employer's bread. And he did not hold himself out to customers as employed by the plaintiff and did not tell any of them he was selling the plaintiff's bread, though he delivered bread to some of them without stating whose bread it was.

After the defendant left the plaintiff's employment, the plaintiff, who knew the addresses of only five of his customers, sent his son to sell bread to them and to any other customers whom he could locate, but the son was unable to find any of the others to whom the defendant had sold and delivered bread while employed by the plaintiff. The plaintiff employed men to follow the defendant for the purpose of finding out to whom he was delivering bread and to ascertain the addresses at which it was delivered. These men wrote down the addresses at which the defendant called to deliver bread for his new employer, but did not take the names of the customers for the reason that in each of several of the houses more than one family lived and, within three weeks after the defendant left the plaintiff's employment, furnished to the plaintiff a list containing these addresses.

The plaintiff's former employee, Serignano, had a list of the plaintiff's customers on the route in question which was written in a book furnished by the employee. When the defendant began work for the plaintiff this former employee showed him his book in which were written names and addresses of customers and the defendant copied these names and addresses in a book furnished by himself and proceeded to deliver bread to them. During the defendant's employment many old customers were lost and several new ones were procured by him, the business increased and the territory was extended. At the time the defendant left the plaintiff's employment he had a small book in which he kept names of customers to whom he sold the plaintiff's bread and the book contained the names of the old customers and of the new customers procured by the defendant. On November 25, 1930, the plaintiff made an oral demand on the defendant for the names and addresses of the customers to whom he had sold the plaintiff's bread and on December 1, 1930, made a written demand therefor. On December 5, 1930, the defendant gave to the plaintiff a sheet of paper on which were written names and addresses purporting to be names and addresses of old customers. But the plaintiff's agent afterwards used this list and was able to find only one or two of them, since they had moved away or were dead. The names and addresses on this...

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