Gorham Mfg. Co. v. Emery-Bird-Thayer Dry-Goods Co.

• Decision Date: 09 October 1900
• Docket Number: 1,312.
• Parties: GORHAM MFG. CO. v. EMERY-BIRD-THAYER DRY-GOODS CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

104 F. 243

GORHAM MFG. CO. v. EMERY-BIRD-THAYER DRY-GOODS CO. et al.

No. 1,312.

United States Court of Appeals, Eighth Circuit.

October 9, 1900

Rufus J. Delano (W. H. Brown, Benjamin H. Chapman, and Philip S Brown, on the brief), for appellant.

John L Peak, for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This is a suit in equity brought by the appellant, Gorham Manufacturing Company, a corporation, against the appellees Emery-Bird-Thayer Dry-Goods Company, another corporation, and others, to enjoin them from palming off the silverware of other manufacturers as that made by the appellant, and known as 'Gorham silverware,' or as 'silverware made by Gorham Manufacturing Company. ' The appellant alleged in its bill that the appellees had been and were deceiving the public and their customers by selling to them silverware of another manufacture as Gorham silver or Gorham silverware which was well known in the market to be silverware of its manufacture, and of a superior quality and character. The appellees denied the averments of the bill. The evidence was conflicting and voluminous. It occupies 274 printed pages of the record. A recital of this evidence would not be instructive, and it is sufficient to say that the case of the appellant rested upon these four charges (1) That on one occasion the clerks of the appellees represented to one Frances MacGillis that silverware manufactured by others was made by the appellant. But this charge is denied by the clerks, and it is supported by the testimony of Frances MacGillis alone. (2) That the clerk of the appellee who had charge of its silver department sold 18 spoons which were made by some other manufacturer as spoons made by the appellant. And, although denied by the clerk, this charge is, in our opinion, sustained by the evidence. (3) That this managing clerk, at the request of an agent of the appellant, who had bought spoons of her, falsely marked them 'Gorham' spoons, when she and the agent both knew that they were not such. And (4) that another clerk of the appellee sold to counsel of the appellant a spoon made by another manufacturer as one made by the appellant. But this clerk was a new and incompetent salesman, who did not know the difference between goods manufactured by the appellant and those made by other manufacturers, and he was discharged for the misrepresentation he made, the day following his sale. In this state of the evidence, the only incident upon which a decree for the appellant could be lawfully based is that described in the second charge; and this is met by the testimony of the managers of the appellee that they never made, themselves, and never permitted their clerks to make, any misrepresentation respecting the manufacture of the goods they sold, and that, if any such misdescription or misrepresentation was made, it was either through the mistake or the misfeasance of some one of their employes, without knowledge or intent upon their part. Such testimony as this would undoubtedly be insufficient to overcome evidence of a course of action, or of several fraudulent sales by the clerks of the appellees. In the presence of established facts, evidence of this character must be carefully scrutinized, and credited with caution. Nevertheless, this suit is based on fraud. Its foundation is unfair, fraudulent competition, and the intent to deceive is an indispensable element in the fraud which warrants the relief sought. This intent and the fraud in which it inheres may be,...