Lothrop Pub. Co. v. Lothrop, Lee & Shepard Co.
| Decision Date | 03 April 1906 |
| Citation | 191 Mass. 353,77 N.E. 841 |
| Parties | LOTHROP PUB. CO. v. LOTHROP, LEE & SHEPARD CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas. W. Bartlett, Elbridge R. Anderson, and Arthur T. Smith, for complainants.
Brandeis Dunbar & Nutter, Edwd. F. McClennan, and Harrison F. Lyman for respondents.
This bill is brought to restrain the first-named defendant hereinafter called the defendant, a publishing company, from using the plaintiff's name and imprint upon books published by it, and to restrain the other defendants from selling books containing the imprint of the plaintiff, or any statement that they are published by the plaintiff, or by the first-named defendant as the successor of the plaintiff. The case was reserved by a single justice upon the defendants' demurrers, with a stipulation that if the demurrers are sustained the bill is to be dismissed, with costs.
It is averred in the bill that for many years the plaintiff had been engaged in an extensive business of publishing books and pamphlets, and that its name had become a trade-name of great value in its business. It appears by the averments that on February 13, 1904, the plaintiff made an assignment of all its property, except such as was exempt from attachment, in trust for the benefit of its creditors. A copy of this assignment is annexed to the bill and made a part of it. The description of the property and rights conveyed is in part as follows: 'All and singular the real and personal property and estate and claims of every kind, and wheresoever situated, belonging to said party of the first part, including all claims, debts, demands and choses in action owing to it, whether now or hereafter payable, and all evidence thereof, always excepting therefrom such property as is exempt by law from attachment or from being taken on execution.' The assignment gives the fullest possible power for the disposition of the assets for the benefit of creditors, and contains this provision: 'Also, if said trustees shall deem expedient so to do, to carry on in whole or in part the business heretofore conducted by said party of the first part, with power to purchase from funds in their hands such goods and materials as they may deem necessary or proper, the more effectually and to the better advantage to dispose of the stock in trade and other assets of the party of the first part,' etc. The good will of this extensive publishing business, especially in connection with the publication of particular books, and the rights to publish, which the plaintiff owned, was an important part of the assets transferred to the assignees, and this good will passed by the conveyance. This would have been so if there had been no special provision authorizing the assignees to conduct the business themselves, in the execution of their trust, and it includes the right to trade-marks and trade-names used in the business. Warren v. Warren Thread Co., 134 Mass. 247; Hoxle v. Chaney, 143 Mass. 592, 10 N.E. 713, 58 Am. Rep. 149; Sohier v. Johnson, 111 Mass. 238; Wilmer v. Thomas, 74 Md. 485, 22 A. 403, 13 L. R. A. 380; Peck Bros., etc., Co. v. Peck Bros. Co., 113 F. 291, 51 C. C. A. 291; Crattwell v. Lye, 17 Ves. Jr. 335; Townsend v. Jarman (1900) 2 Ch. 698; Levy v. Walker, 10 Ch. Div. 436; Bury v. Bedford, 4 De Gex, J. & S. 352; Hudson v. Osborne, 39 L. J. (N. S.) Ch. 79. The exception of property exempt by law from attachment and from being taken on execution, refers only to that which is subject to express exemption by the statutes. Barton v. White, 144 Mass. 281, 10 N.E. 840, 59 Am. Rep. 84; R.I. National Bank v. Chase, 16 R.I. 37, 12 A. 233; Williams v. Smith, 117 Wis. 142, 93 N.W. 464.
We are of opinion that the assignees under this conveyance could give to a purchaser of the property used in the business, and of the good will connected with it, a right to the use of the plaintiff's name as a designation of the publications that had previously borne its imprint, and to advertise as the plaintiff's successor in the business so purchased. Russia Cement Co. v. Le Page, 147 Mass. 206, 17 N.E 304, 9 Am. St. Rep. 685; Le Page v. Russia Cement Co., 51 F. 941, 2 C. C. A. 555, 17 L. R. A. 354; Baker & Co. v. Baker (C. C.) 87 F. 209; Garrett v. Garrett & Co., 78 F. 472, 24 C. C. A. 173; Coates v. Coates Thread Co., 135 F. 177; Snyder v. Manufacturing Co. v. Snyder (Ohio) 43 N.E. 325, 31 L. R. A. 657; Fraser v. Fraser...
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