Fairfield v. Lowry

• Decision Date: 04 January 1911
• Citation: 207 Mass. 352,93 N.E. 598
• Parties: FAIRFIELD v. LOWRY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 352

93 N.E. 598

FAIRFIELD v. LOWRY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1911

The following is the contract of the sale of the insurance business of the late Henry A. Smith, Henry A. Smith & Co. and Marion Smith Lowry to H. G. Fairfield & Co.:

'Henry A. Smith, General Insurance.

'Room 441 Exchange Building, 53 State Street.

'Residence: 26 Chestnut St., Stoneham, Mass.

'Telephone Main 2082.

'Boston, Mass., August 5, 1907.

'In consideration of one thousand dollars ($1,000) cash (the receipt whereof is hereby acknowledged), and the agreement to pay the sum of eight hundred dollars ($800) additional on December 1st next, we hereby agree to sell and deliver, on October 1st next, all our right, title and interest in the insurance business of the late Henry A. Smith, Henry A. Smith & Co., and Marion Smith Lowry, to H. G. Fairfield & Co.

'Mrs. Lowry to continue in interest until October 1st, and the remaining 10% to be paid within 2 years from date.

'[Signed] Marion Smith Lowry,

'For Henry A. Smith & Co.

'[Signed] H. G. Fairfield & Co.'

COUNSEL

Frederick W. Brown and Walter L. Came, for appellant.

Frank M. Forbush and Jesse W. Morton, for appellees.

OPINION

SHELDON J.

The plaintiff does not deny that upon the findings made at the hearing his bill was rightly dismissed. His contention is that the right to use the names 'Henry A. Smith,' 'Henry A. Smith & Co.,' and 'Marion Smith Lowry' in carrying on the insurance business, did pass to him by the agreement between himself and Mrs. Lowry and that the respondents have no right to use those names in such business; and also that Mrs. Lowry is bound not to compete with him in that business, and not to solicit for herself or any other person the patronage of her former customers or of the former customers of Smith or Smith & Co., and not to interfere in any way with the plaintiff's peaceful enjoyment of the business which he purchased from her.

The written agreement between the plaintiff and Mrs. Lowry did not purport to give to him the right to use the names in question. The effect of this material circumstance is in no wise weakened by the fact that the language of this agreement was chosen by the plaintiff himself. The fact that she allowed him to use those names for a time is sufficiently accounted for by the friendly relations that existed between the parties while she was in his employ, and does not necessarily show an understanding on her part that he had acquired the right to use them. Nor is the language of the instrument doubtful. Such cases as Winchester v. Glazier, 152 Mass. 316, 323, 25 N.E. 728, 9 L. R. A. 424, and Insurance Co. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410, have no application here. Under the provisions of Rev. Laws, c. 72, § 5, the plaintiff has no right to use in his business either of these names without the written consent respectively of Mrs. Lowry or of Smith's personal representative.

We have not considered the finding that before the execution of the written agreement Mrs. Lowry had told the plaintiff that she would not sell to him the names in question; for it may well be doubted whether it was open to the defendants to prove this fact, as the preliminary negotiations were merged in the written agreement. If so, the fact that the evidence was received without objection would not give to it any probative effect. Butterick Publishing Co. v. Fisher, 203 Mass. 122, 132, 133, 89 N.E. 189, 133 Am. St. Rep. 283, and cases cited.

After the sale by Mrs. Lowry to the plaintiff of her interest in the insurance business, she had not the right to derogate from the effect of...