Empire Trust Co. v. Empire Finance Corp.

• Decision Date: 06 April 1931
• Citation: 41 S.W.2d 847,226 Mo.App. 298
• Parties: EMPIRE TRUST CO., RESPONDENT, v. EMPIRE FINANCE CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

41 S.W.2d 847

226 Mo.App. 298

EMPIRE TRUST CO., RESPONDENT, v. EMPIRE FINANCE CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from the Circuit Court of Buchanan County.--Hon. L. A Vories, Judge.

AFFIRMED.

Judgment affirmed.

Culver Phillip & Voorhees for respondent.

L. J Eastin for appellant.

CAMPBELL, C. Boyer, C., concurs. Trimble, P. J., absent.

OPINION

CAMPBELL, C.

--Action for an injunction.

Plaintiff's petition is as follows:

"Plaintiff states that it is and has been since the date of its incorporation a corporation created and existing under the laws of the State of Missouri; that plaintiff was created a corporation on the twenty-third day of October, 1905, and has an actual paid-up capital of $ 200,000 with its office and place of business located in the city of St. Joseph, Buchanan County, Missouri, for the purpose and with the powers following, to-wit: Among other things, to purchase, hold, sell and transfer notes, bonds and other negotiable instruments secured by mortgages upon real and personal property, and that ever since the date of its incorporation it has been and yet is carrying on in said city the business for which it was incorporated; that it has built up and now enjoys a large and lucrative business in said city and the surrounding territory, and that it enjoys the confidence and trust of the people of said community because of its financial responsibility and the manner in which its business has been conducted; that the existence and business of the plaintiff has been for many years advertised in said community and that it is known as a company engaged in the business of purchasing, holding, dealing in and selling notes, bonds and other negotiable papers secured by mortgages upon real and personal property, and that the public in said community have come to know and in many instances to speak of and refer to the plaintiff as 'The Empire' and to deal with it in the purchase and sale of such negotiable paper because of its known integrity and business standing; that at no time since its incorporation, until the incorporation of the defendant as hereinafter stated, has there been any other corporation, association, firm or person engaged in the same or similar business in the said city or community using the name of the 'Empire' as its name or any part of its name; that on or about the eleventh day of July, 1930, the defendant herein was incorporated under the laws of the State of Missouri under the name of Empire Finance Corporation, without the knowledge or consent of this plaintiff, with its office and place of business in said city of St. Joseph, for the purpose of purchasing, holding, dealing in and selling notes, bonds and other negotiable paper secured by mortgages upon real and personal property and with an authorized capital of $ 250,000, divided as follows: 11,250 shares of preferred stock of the par value of $ 10 per share, 22,500 shares of Class A common stock of the par value of $ 5 per share, and 25,000 shares of Class B common stock with the par value of $ 1 per share, and that at the time of its incorporation none of its authorized capital had been subscribed or paid for excepting as follows: 4,300 shares of Class B common stock of the par value of $ 1 each, or a total of only $ 4,300; that as to whether or not said $ 4,300 was in fact paid in to the treasurer of said corporation at the time it was incorporated or at any time thereafter, this plaintiff has no knowledge or information sufficient to form a belief; that the defendant ever since said time has been engaged in the business of selling or endeavoring to sell the remaining $ 245,700 of its authorized capital stock to the public and anyone who is willing to purchase the same and carrying on the business it is authorized to do under its corporate name of Empire Finance Corporation."

It is further alleged that stock in the defendant company is being sold by it; that plaintiff is not the owner of any of the stock of the defendant or of any of its property or business, and has no connection whatever with the defendant. Continuing:

"That by reason of the fact that the distinguishing word 'Empire' as a part of the name of the plaintiff corporation and the defendant corporation and that the name of the plaintiff is Empire Trust Company and the name of the defendant is Empire Finance Corporation, and by reason of the fact that both corporations are engaged in the same business in the same city, the use of the name 'Empire Finance Corporation' by the defendant is calculated to and will and does deceive or confuse the public, and the names of said corporations are so similar as to deceive, confuse or mislead the public in the belief that the defendant corporation is the same corporation as the plaintiff corporation and that in dealing with the defendant corporation or purchasing any of the stock it is dealing with or purchasing the stock of this plaintiff corporation; that in consequence of the facts aforesaid plaintiff is damaged and unless the defendant is restrained as...