Lane v. Smythe

• Decision Date: 03 February 1890
• Citation: 19 A. 199,46 N.J.E. 443
• Parties: LANE v. SMYTHE.
• Court: New Jersey Court of Chancery

19 A. 199

46 N.J.E. 443

LANE

v. SMYTHE.

Court of Chancery of New Jersey.

Feb. 3, 1890.

(Syllabus by the Court.)

On order to show cause why injunction should not issue. Heard on bill, answer, and affidavits.

The contest is over the right to publish a newspaper with the name and title "Summit Record," at Summit, Union county, N. J.

The following facts appear: About January 1, 1883, one Woodruff started a weekly newspaper at Summit, and named it "The Summit Record." Those words were printed in large old English type, at the head of the first page. Beneath, in smaller capitals, were the words, "Independent, Just. and Fearless." Woodruff continued the publication until some time in the latter part of the month of November, 1884, when he was obliged, by pecuniary straits, to suspend. The newspaper plant was mortgaged to one De Forest. On December 1, 1884, Woodruff conveyed the plant to De Forest by a bill of sale, describing it as follows: "All and singular, the goods and chattels mentioned in the schedule hereunto annexed, and now in the rooms on the upper floor of the building, known as 'Littell's Hall,' situated in the said township of Summit, in the county of Union, and state of New Jersey, aforesaid, subject to a mortgage of one thousand dollars given by said Newton Woodruff to William H. De Forest." The schedule comprises a long list of chattels, such as are used in printing and publishing an ordinary country newspaper, and end thus: "And all other goods, chattels, fixtures, furniture, stock, and all and every other article or thing, belonging to me, and used and employed in the printing (sic) or otherwise, and now contained in said rooms and premises on the top floor of Littell's Hall, in the township of Summit, aforesaid."

Both Woodruff and De Forest swear that it was understood and agreed between them that what is called the "good-will" of the newspaper—the right to continue its publication by its old name, and the subscription and advertising lists and patronage—went with the plant to De Forest. On the 16th of December, 1884, De Forest, as party of the first part, and the defendant, Smythe, as party of the second part, executed in duplicate a lease and agreement of that date, by which it was witnessed that De Forest "by these presents doth grant and let unto the said party of the second part all those printing-presses, paper and card cutters, type, and other goods and chattels, particularly mentioned and specified in the schedule hereto annexed, and now contained and being in the rooms on the upper floor of the building known by the name of and generally called 'Littell's Hall,' situated in the township of Summit aforesaid, and formerly occupied by Newton Woodruff in the publication of the 'Summit Record,' and any and all other goods and chattels therein contained, conveyed to the said William H. De Forest by the said Newton Woodruff, or intended so to be, by bill of sale bearing date the first day of December, A. D. 1884, for the term of one year from the sixteenth day of December, one thousand eight hundred and eighty-four, at the yearly rent or sum of ninety dollars. * * * And it is understood by and between the said parties hereto that the said party of the second part is to use the said goods and chattels in the business of the publication of the 'Summit Record,' and for general job-printing purposes. * * * And it is mutually understood and agreed by and between the said parties hereto that in case, at the expiration of three months from the date hereof, the said party of the second part shall be unable to continue the business of the publication of the * Summit Record 'and general job-printing, he shall and may have the privilege, if he elects so to do, of giving up and surrendering this lease, and all his interest herein, upon first giving to the said party of the first part ten days' notice in writing of his intention so to do. And the said party of the first part does hereby agree, from and after said expiration of said three months, to release the said party of the second part from the payment of any rent for the balance of the said term herein mentioned; only, however, upon condition that the said party of the second part shall be unable to continue the said business as aforesaid." There was also a provision for the return of the goods at the termination of the lease, and also for their purchase by Smythe, at his option, at a price to be agreed upon. The schedule is the same as that attached to Woodruff's bill of sale, and ends thus: "And all other goods, chattels, fixtures, furniture, and all and every other article and thing, conveyed as aforesaid by the said Newton Woodruff to the said William H. De Forest, and now contained in said rooms in Littell's Hall formerly occupied by said Newton Woodruff as aforesaid."

Smythe commenced the publication of a newspaper at Summit on December 20, 1884, entitled "Summit Record," the motto of which was placed beneath both the title and the date, and was, "Devoted to the Best Interests of the People and the Advancement of Democratic Principles." The type of the words "Summit Record" was precisely similar, both in size and character, to that used by Woodruff in the title of his paper. Smythe's first issue was numbered "Volume 3, No. 1." A copy of Woodruff's paper of October 25, 1884, was produced by the defendant, and bears the number, "Volume 2, No. 43." The leader, in the editorial column of Smythe's first issue, a copy of which was also produced by him, was as follows: "The Summit Record is before you this morning with a general change in the office employes, the editor, and the general management of the paper. The Record and general business of the office has been sold to D. M. Smythe, who will hereafter manage the paper, and the business connected therewith. In the purchase the present publisher does not assume the unfulfilled subscription and advertising contracts entered into with the retiring editor and publisher." In that issue appear several legal advertisements. No entry was made at the post-office by Smythe of his paper, as required when a new newspaper is started, but it was deposited and sent as second-class matter, as a continuation of the old paper. Smythe continued to publish the paper under the foregoing lease and agreement, regularly, and still continues it. He did not purchase the plant from De Forest, nor did he at any time do anything to change the relations between himself and De Forest arising out of the lease and contract. In August, 1889, whatever title De Forest had in the lease, name, and good-will of the newspaper and plant became vested in the complainant. He at once demanded possession of the plant and establishment. The defendant delivered up to him what remained of the plant, but declined to deliver the title-plate then in use.

Complainant, on September 14th, served on defendant the following notice: "To David M. Smythe: Please take notice that the lease made by William H. De Forest to you, dated December sixteenth, eighteen hundred and eighty-four, has been duly assigned to me by George R. Sheldon, assignee of William H. De Forest, and also assigned to me by the said William H. De Forest; that the paper known as the 'Summit Record,' and the right to publish the same, has been sold to me by the said George R. Sheldon, assignee, and by the said William H. De Forest; that by virtue thereof I am now the owner of the said paper, the Summit Record, and the right to use the said name in the publishing of a newspaper, and that I am also the owner of all the rights of the said William H. De Forest, or of George R. Sheldon, assignee under said lease; that by virtue of the covenants in the said lease, and my rights as aforesaid, I declare the said lease at an end. I demand the delivery of the plate used in publishing the Summit Record, upon which the name of the said paper Summit Record is engraved, and I forbid you, and all other persons, to use the name 'Summit Record,' or any name similar thereto, in the publishing of a newspaper at Summit, or at any other place within this state. Dated September 14th, eighteen hundred and eighty nine. [Signed] THOMAS F. LANE."

Defendant refused to comply with the complainant's demand, and said he would contest complainant's right in the courts. Complainant himself at once commenced the publication of a newspaper entitled "The Summit Record," and on the 5th of October last filed his bill, setting forth the foregoing facts, and praying that the defendant may be enjoined from further publishing a newspaper under the name of "Summit Record," and from taking from the post-office mail matter addressed to "The Summit Record" or "Summit Record." The bill also alleges that the defendant is a man of no pecuniary responsibility. Upon filing this bill, with affidavits in its support, an order was made on the defendant, Smythe, to show cause on October 21st why an injunction should not issue according to the prayer of the bill. Smythe answered, admitting the previous publication of "The Summit Record" by Woodruff; alleging that the last issue published was on November 22, 1884, and that its publication was abandoned by Woodruff; denying that the sale from Woodruff to De Forest included the right to use the name "The Summit Record," or any good-will; alleging that he leased from De Forest only the printing plant, and not any good-will, or the right to use any particular name; and that the name "Summit Record," without the article "The," was adopted by him as a new name, and filled in the lease after that instrument was prepared. Defendant further denies that he has ever admitted that the newspaper was rented by him from De Forest, or that he did in fact do so. No proof was offered in support of the allegation in the leader of Smythe's first issue that the newspaper and general business of the office had been sold to him, nor was any explanation made of the statements of that article. The answer...