Esselstyn v. Holmes
| Decision Date | 24 January 1911 |
| Citation | 114 P. 118,42 Mont. 507 |
| Parties | ESSELSTYN v. HOLMES. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.
Action by E. E. Esselstyn against George B. Holmes. Judgment for defendant, and plaintiff appeals. Affirmed.
C. A Spaulding, for appellant.
W. T Pigott, for respondent.
This action was brought to have a determination of the question whether the plaintiff is entitled to the exclusive use of the words "Owl Creek Coal" as a trade-name for the coal mined by the Owl Creek Coal Company and sold by the plaintiff to the public in the city of Helena and vicinity. The Owl Creek Coal Company began to mine coal in the Bighorn Basin in the state of Wyoming, some time prior to September 1, 1908. About the same time the Kirby Coal Company also began to mine. At that time the plaintiff became the agent of the company, with the exclusive right to sell its product in the states of Montana and Washington. No special effort had theretofore been made to get the product of either company upon the market in these states. The plaintiff provided himself with docks and yards in the cities in Montana, including Helena, and since that time has been advertising and selling the product as "Owl Creek Coal." It is alleged in the complaint, in substance, that in order to distinguish the product of the company so handled by him from the product of mines other than those belonging to it, the plaintiff adopted the trade-name and designation "Owl Creek Coal"; that he has at great expense advertised and put the coal upon the market under this designation; that after its adoption he was in the quiet and exclusive enjoyment of said trade-name, as applied to the coal handled and sold by him; that on April 27, 1909, he filed with the Secretary of State of Montana his claim to the exclusive use of the name, duly verified as required by law; that because of the superior quality of the product sold by him it became identified and known by this name in the city of Helena and its vicinity, and because of this fact plaintiff built up a lucrative business, deriving a large profit from it; that, notwithstanding these facts and plaintiff's rights in the premises, the defendant, with the preconceived intention of defrauding the plaintiff out of his profits and of securing to himself the benefit of the reputation acquired for the "Owl Creek Coal" by palming off upon the public a coal of inferior quality, has, since about January 1, 1909, continuously used plaintiff's said trade-name, and is now using it, for the purpose of soliciting trade by representing to purchasers, by advertisement, that he is selling the same kind and quality of coal as that which the plaintiff has the exclusive right to sell, though in fact it is much inferior in quality; that he has thus deceived the public in Helena and vicinity, and greatly injured and damaged the reputation and estimation in which the coal sold by plaintiff has been held; that plaintiff cannot ascertain with any exactness the amount of injury he has sustained, and that the defendant is wholly insolvent. The prayer is for a perpetual injunction.
The answer admits that plaintiff has been for more than a year the sole agent of the Owl Creek Coal Company; that for some time prior to the filing of the complaint he, in common with other dealers in the city of Helena and vicinity, have used the name "Owl Creek Coal" as the name of certain of the coal sold by the defendant and other dealers in the same territory, and that defendant is insolvent. It denies all other allegations contained in the complaint. It is then affirmatively averred that the coal in which defendant has dealt as "Owl Creek Coal" is produced in the Owl Creek field, in the state of Wyoming; that it has been and is named "Owl Creek Coal" because it is mined and produced near a stream called Owl creek, and in the Owl Creek field, and is in fact Owl Creek coal; that Owl creek is the name of a stream in said district, and also of a range of mountains near by, and that the expression "Owl Creek" is a generic and geographical name; that this coal is of a similar quality and of the same general appearance as that dealt in by the plaintiff, and is as truly described by the designation "Owl Creek Coal" as is that dealt in by plaintiff; that it is produced at a less distance from Owl creek than that sold by plaintiff, and the designation "Owl Creek Coal" does not point to the ownership of the coal, nor indicate in any degree the person, natural or artificial who mined it or brought it to market; that the defendant has dealt in said coal and sold it as one mined near to Owl creek by the Kirby Coal Company, within the Owl Creek region or field; that the generic and comprehensive name for all coal mined in that region or district is "Owl Creek Coal," and that there are at least two collieries now in operation in that district, the product of both of which is truly and rightfully described as "Owl Creek Coal." The replication admits that plaintiff's coal is mined near Owl creek in the state of Wyoming, but denies all the other affirmative allegations in the answer.
The court found generally for the defendant and directed judgment to be entered, dismissing the action. The plaintiff has appealed.
It is not important in this case to inquire into the question whether a person may secure the exclusive right to the use of a trade-name, as distinguished from a trade-mark, by a compliance with the provisions of the Codes (Rev. Codes, §§ 2036, 2040), or whether the plaintiff has complied with them. The case proceeds upon the theory that the defendant has been engaged in an attempt to secure to himself the benefit of the good will which the plaintiff has acquired, as the exclusive agent of the Owl Creek Coal Company, for the sale of the coal produced by it. In other words, the cause of action alleged--and for the purposes of this case we shall assume that sufficient facts appear upon the face of the complaint to require a defense--is for relief from the injury resulting from a course of unfair competition by the defendant. Nor are we required to enter into the inquiry whether the evidence is sufficient to justify the findings. No attack is made upon them by appellant. The assignment of error in the brief is that "the court erred in rendering judgment against appellant and in favor of respondent." This presents only the question whether, upon the facts as found, the trial judge reached the proper conclusion; for, though the findings are not specific, but in general terms, every finding upon any issue necessary to support the judgment is to be implied. Thorp v. Freed, 1 Mont. 651; Ingalls v. Austin, 8 Mont. 333, 20 P. 637; Haggin v. Saile, 23 Mont. 375, 59 P. 154; Currie v. Montana Central Ry. Co., 24 Mont. 123, 60 P. 989; Slater Brick Co. v. Shackleton, 30 Mont. 390, 76 P. 805; Bordeaux v. Bordeaux, 32 Mont. 159, 80 P. 6. This rule is in effect declared by the statute (Rev. Codes, § 6766). Furthermore, this court has uniformly observed the rule that it will not consider alleged errors not assigned in appellant's brief. Lehane v. Butte Electric Ry. Co., 37 Mont. 564, 97 P. 1038; Foster v. Winstanley, 39 Mont. 314, 102 P. 574; Toole v. Weirick, 39 Mont. 359, 102 P. 590, 133 Am. St. Rep. 576; Watkins v. Watkins, 39 Mont. 367, 102 P. 860.
Under the issues made by the pleadings, the court necessarily found that at the time the action was brought the plaintiff in common with others, including the defendant, was selling coal which is designated as "Owl Creek Coal"; that the coal dealt in by the plaintiff and defendant under this designation is produced in the Owl Creek coal field, in the state of Wyoming; that it has been and is designated as "Owl Creek Coal" because of this fact; that defendant's coal is similar in appearance and quality to that dealt in by the plaintiff; that the designation is truthful as applied to the coal sold by the defendant; that it does not point to the ownership of the coal, nor to the person who mines it or puts it upon the market; that the defendant has dealt in it as coal mined near Owl creek by the Kirby Coal Company; that the designation is a geographical and comprehensive one, and is applicable to all coal mined in that district; and that there are at least two collieries in the district producing coal, the product of both of which is truly and rightfully called "Owl Creek Coal."
It cannot be doubted that upon principles analogous to those which apply to technical trade-marks a person may be protected in the exclusive use of his own name, or that of a place, building, or other designation selected by him, and by use of which, in connection with his business, he has acquired for it a valuable good will. The theory of the law is that, while all are entitled to the use of any given designation, no one has the right to so use it, even though it is his own name or a name selected for his place of business, as to invade the right of another. Such conduct is a distinct fraud. The good will of a business is intangible, being merely the expectation of continued public patronage (Rev. Codes, § 4566); but nevertheless it is property capable of transfer (Rev. Codes, § 4567), and the owner is entitled to the same protection in the exclusive enjoyment of it as he is in that of his tangible possessions. One competitor in the same business cannot so dress his goods or advertise them as to take away the trade reputation which another has established by a long course of honesty and fair dealing with the public. To permit this character of wrong would be tantamount to a declaration that for injuries to this species of property the law furnishes no redress. In Croft v. Day, 7 Beav. 88, it was said: ...
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