Kelly v. Morrison

• Decision Date: 03 January 1919
• Citation: 121 N.E. 418,231 Mass. 574
• Parties: KELLY et al. v. MORRISON. ROGERS et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 574

121 N.E. 418

KELLY et al.

v.MORRISON.

ROGERS et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 3, 1919.

Report from Superior Court, Suffolk County; Jabez Fox, Judge.

Suits by Thomas A. Kelly and Thomas J. Kelly, administrators de bonis non with will annexed of the estate of Thomas Kelly, and by Frank F. Rogers, Jr., and others, copartners, against James M. Morrison. On report to the Supreme Judicial Court. In the second case, decree dismissing the bill directed; in the first case, decree of injunction ordered to issue.

John F. Sullivan, of Boston, for complainants.

Dunbar, Nutter & McClennen, of Boston (George R. Nutter and Greta C. Coleman, both of Boston, of counsel), for defendant.

PIERCE, J.

These cases were argued together and may be disposed of by a single opinion. In each case the plaintiffs seek to enjoin the defendant from the use of the name Thomas Kelly in connection with his business in the cities of Boston, New York and Chicago. The cases are before this court on report.

The agreed facts applicable to both cases are, in substance, as follows: December 1, 1892, the defendant Morrison became a partner with Thomas Kelly and one Maguire, under the name of Thomas Kelly & Co. Kelly died in 1893. Maguire and Morrison continued the business under the same firm name until the death of Maguire in 1895. December 1, 1895, Morrison formed a new partnership with other partners, and continued the business with various partners, and finally with the plaintiffs Hennessey, Rogers and Jenkins under the same firm name of Thomas Kelly & Co. until the expiration of the last partnership on November 30, 1917. December 1, 1917, a bill was filed by Morrison against the other partners, a receiver was appointed, and all the right, title and interest of the defendants in and to the personal property of the partnership was transferred to the receiver, who conveyed the same to Morrison. After the conveyance by the receiver, Morrison sent out to all customers whose names appeared on the books of the old firm of Thomas Kelly & Co., and to the trade generally, a statement, dated May 1, 1918, which in substance read:

‘The late firm of Thomas Kelly & Co. has been dissolved. I have acquired the assets, business and good will, and am continuing the business * * * at the same address, and under the same name of Thomas Kelly & Co.’

May 1, 1918, the plaintiffs Rogers, Hennessey and Jenkins sent out to all the old customers of Thomas Kelly & Co., and to the trade generally, a notice of the dissolution of the firm of Thomas Kelly & Co. and that they had ‘formed a new partnership under the name of Rogers, Hennessey & Jenkins for the carrying on of the same line of business.’

‘The executor of the will of Thomas Kelly was his partner, Maguire, and after the death of Maguire, Thomas A. Kelly and Thomas J. Kelly, the plaintiffs, were appointed administrators de bonis non in 1895. The right to the use of the name of Thomas Kelly does not appear as an asset on any inventory of the estate of Thomas Kelly, nor is it included in the first and final account of the administrators de bonis non, which was filed in 1916, duly assented to by all persons interested therein. The administrators de bonis non have at all times known that after the death of Thomas Kelly, Morrison continued the business and has continued it under the same firm name with different partners since December, 1895. During that period, Morrison has sent out circulars and price lists regularly to the trade, and has advertised somewhat in trade papers, and the sales of the business have almost doubled from 1895 to 1917. The name is of value, and its value has increased since 1895. Neither of the administrators has even been engaged in a similar business, although Thomas A. Kelly was employed during the year 1896 by the firm which Morrison formed to succeed the old firm in which Thomas Kelly was a parther, and since the sale of the business by the receiver to Morrison, Thomas A. Kelly has been employed by the firm of Hennessey, Rogers & Jenkins. The offices of the firm of Thomas Kelly & Co. since 1895 were in Chauncy street, Boston, at the corner of Exeter Place, until the building burned in 1917, and after that destruction by fire were moved to the opposite corner, where Morrison is now conducting the business. No notice was ever given by the administrators...