Le Maine v. Seals

• Decision Date: 01 September 1955
• Docket Number: No. 33111,33111
• Citation: 47 Wn.2d 259,287 P.2d 305
• Court: Washington Supreme Court
• Parties: George F. LE MAINE and Donald W. Wallace, Appellants and Cross-Respondents, v. Buford V. SEALS, Jr., and Helen F. Seals, his wife; Robert A. Keene and Alice S. Keene, his wife; John E. Keene and Marilyn Keene, his wife; and Buford Enterprises, Inc., a corporation, Respondents and Cross-Appellants.

Page 259

47 Wn.2d 259

287 P.2d 305

George F. LE MAINE and Donald W. Wallace, Appellants and Cross-Respondents, v. Buford V. SEALS, Jr., and Helen F. Seals, his wife; Robert

A. Keene and Alice S. Keene, his wife; John E. Keene and

Marilyn Keene, his wife; and Buford Enterprises, Inc., a

corporation, Respondents and Cross-Appellants.

No. 33111.

Supreme Court of Washington, Department 2.

Sept. 1, 1955.

Rehearing Denied Nov. 2, 1955.

Lenihan & Ivers, Seattle, for appellants.

Merle D. Cohn, Seattle, for respondents.

HILL, Justice.

The plaintiffs, George F. LeMaine and Donald W. Wallace, allege damages, actual and potential, to their business by the actions of Buford V. Seals, Jr., their former partner, and the other named defendants (Seals' wife, Robert A. Keene and John E. Keene and their respective wives, and Buford Enterprises, Inc.) and seek damages and injunctive relief. All except a portion of the fourth of the five causes of action set forth in the complaint were dismissed, and the plaintiffs appeal. From the measure of relief granted the plaintiffs on the fourth cause of action, the defendants cross-appeal. To avoid confusion, we shall refer to the parties as plaintiffs and defendants.

The plaintiffs and defendant Seals became partners in 1946, the last and best known name of the partnership being 'The 3 G. I's.' They started dealing exclusively in war surplus materials but were soon handling other merchandise also and in time the so-called 'civilian' merchandise became predominant.

Their advertising was unusual and effective, and centered around the partners individually as 'George,' 'Don,' and 'Buford' and their caricatures. The caricatures and other drawings were done for them by artists employed or recommended by the agency which handled their advertising from December, 1946, until August, 1948. Defendants Robert A. Keene and Juhn E. Keene, as copartners, operated that agency.

Defendant Seals left the partnership as of November 1, 1948, under the terms of a dissolution agreement dated September 15, 1948, and a supplemental agreement dated December 7, 1948. By these dissolution agreements, the plaintiffs retained the right to the name 'The 3 G. I's' and to use the name 'Buford' and the caricature of Seals which constituted part of their trademark. Seals was to have the right to engage in any business or occupation that would not compete with the business of the partnership. He agreed not to engage in any capacity whatsoever in a general retail merchandising business of the same nature as that operated by the remaining partners within the cities of Seattle and Portland, within a radius of three miles of any of the retail stores then operated by the partnership. Specific provisions of these dissolution agreements will be considered hereinafter, as they are decisive of many of the issues raised in this litigation.

Subsequent to leaving the partnership, Seals kept in touch with the Keenes, and the three of them finally 'evoluted' the idea of a retail center in the nature of a market, to be called 'Buford's Farmers' Market.' To implement that idea, a corporation was organized under the name 'Buford's Enterprises, Inc.,' with Seals as principal stockholder and president. The corporation plans to erect a large market building (1726 feet by 120 feet) on a site which it has leased, and to provide ample parking space thereon. The corporation will then lease space to approximately 185 tenants, who will erect their own specialty shops within the market building. The corporation, through subsidiary corporations, will operate a grocery store and a service station on the property. At the time of trial, the service station was substantially completed and the first section of the large building, where the grocery store will be located, was forty per cent completed.

Lewis Nasmyth, an artist who worked for 'The 3 G. I's' both before and after Seals left the partnership, is now employed by the defendant corporation and is responsible for the caricature and the lettering used by the defendant corporation which are the bases of some of the complaints urged by the plaintiffs.

Many of the fifty-one assignments of error made by the plaintiffs have little bearing on our basic problem of what relief, if any, the plaintiffs are entitled to on their various causes of action. Nineteen of the assignments of error are to the failure of the trial court to make certain findings of fact proposed by the plaintiffs.

The fact that the evidence on a certain point may be undisputed does not entitle a party to a finding of fact on that particular point. As we said in Seattle Ass'n of Credit Men v. Green, 1954, 45 Wash.2d 139, 143, 273 P.2d 513, 515:

'We find no merit in defendants' assignments of error to the failure of the court to enter findings of fact proposed by them. These proposals are either contrary to the weight of the evidence, or are not ultimate material facts. The court is not obliged to make findings in regard to every item of evidence in a case, but to make ultimate findings of fact concerning all of the material issues. Bowman v. Webster, 1953, 42 Wash.2d 129, 134, 253 P.2d 934, and cases cited. The findings here are sufficient to enable this court to review the issues upon appeal, and disclose what questions were decided, and the conclusions reached upon them, by the trial court. This satisfies the requirements of Rule of Superior Court 17, 34A. Wash.2d 118, referred to in the last cited case.'

We shall, in an effort to give adequate consideration to the basic problem to which we have referred, consider each of the five causes of action and the plaintiffs' rights thereunder on the basis of the evidence applicable thereto, rather than take the time and space to discuss each assignment of error.

The first cause of action is for damages in the amount of one hundred thousand dollars against the defendants for appropriating to their own use

'* * * the name 'Buford' and the cartoon, caricature and symbol depicting and representing 'Buford', and the distinctive type, design and lettering thereof * * *.'

which was alleged to be a

'* * * substantial and primary part of the good will and trade name of the partnership known as 'Veterans' Sales Outlet', 'The 3 G. I.'s' and 'George, Don and Buford' * * *.'

The fifth cause of action is also for damages in the amount of one hundred thousand dollars. It is alleged therein that the defendants conspired, orally and by written agreement, to injure and defraud the plaintiffs by causing violation of certain contracts between Seals and the plaintiffs (the partnership agreement of July 9, 1947, and the dissolution agreements of September 15 and December 7, 1948), and by appropriating to their own business 'the label, trademark, trade name, term, device, design, form of advertisement, lettering, type, cartoon, caricature and symbol' which belong to the plaintiffs.

The plaintiffs attempted to prove their damages by introducing evidence that the total cost of their advertising to June 30, 1953, was $134,335.39. (This figure was compiled from income-tax returns.) They argued that 'Buford' was a dominant feature of that advertising and that the activities of the defendants had injured them in the amount of one hundred thousand dollars.

They also showed that the defendants had placed a valuation of fifteen thousand dollars on their trade name, 'Buford's Farmers' Market,' in the financial statement furnished when they applied for a license authorizing them to sell stock and securities of the defendant corporation, Buford Enterprises, Inc. The plaintiffs argued that this is the value placed by the defendants on the name 'Buford,' to the exclusive use of which the plaintiffs allege they are entitled, and hence they have been damaged in at least that amount.

The trial court dismissed these two causes of action at the close of the plaintiffs' case, because no damages had been shown.

Damages resulting from the type of activities alleged by the plaintiffs in these two causes of action have always been recognized as difficult of proof. A statement of this difficulty appears in W. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co., 1907, 103 Me. 334, 341, 69 A. 569, 572:

'If the plaintiff fails to furnish evidence affording some basis for an intelligent judgment for least a probable estimate as to how much of his damage resulted from the wrongful acts of the defendant, he fails to prove a necessary element in his case. It is for the plaintiff to prove the resulting damages as well as the wrongful act. They are not to be determined by haphazard guess, as by throw of dice.

'It is not necessary, however, for the plaintiff in such case to prove the resulting damages in separation from other damages with mathematical certainty or anything like it. He is not to be held to precision to the exact pound, neither more nor less, nor even to show a distinct separation in time and circumstance. It is enough if he furnishes evidence upon which the tribunal can make a reasonably probable estimate through the exercise of intelligent judgment. Mere difficulty in making such an estimate does not authorize the tribunal to turn the plaintiff away without any damages. Of course in a given case the estimate may be too large or too small, as it may be and undoubtedly often is in that large class of cases in which damages cannot be calculated but necessarily have to be estimated. Certainly precision is undoubtedly very desirable in the assessment of damages in such cases, but it is practically unattainable, and there is less danger of injustice in awarding judgment upon reasonably intelligent estimates than in refusing it wholly.'

See Eno v. Prime Mfg. Co., 1943, 314 Mass. 686, 50 N.E.2d 401; Hygienic Products Co. v. Judson-Dunaway Corp., 1948, D.C., 81 F.Supp. 935, 947; 2 Nims, Unfair Competition & Trade-marks (4th ed.) 1336, § 420; 4 Callman, Unfair Competition & Trade-marks (2d ed.) 1881, § 89.3.

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