Marlin Firearms Co. v. Shields

• Court: New York Court of Appeals
• Writing for the Court: PARKER
• Citation: 171 N.Y. 384,64 N.E. 163
• Parties: MARLIN FIREARMS CO. v. SHIELDS.
• Decision Date: 10 June 1902

171 N.Y. 384
64 N.E. 163

MARLIN FIREARMS CO.
v.
SHIELDS.

Court of Appeals of New York.

June 10, 1902.

Appeal from supreme court, appellate division, First department.

Action by the Marlin Firearms Company against George O. Shields. From an order of the appellate division (74 N. Y. Supp. 84), reversing a judgment for defendant sustaining a demurrer to the complaint, defendant appeals. Reversed.

Bartlett and Haight, JJ., dissenting.

[171 N.Y. 384]John S. Wise and H. A. Wise, for appellant.

171 N.Y. 385]Charles Gibson Bennett, for respondent.
PARKER, C. J.

The plaintiff corporation, which manufactures Marlin repeating refles, brought this action to perpetually restrain defendant, the proprietor of a magazine called ‘Recreation,’ from publishing ‘any article or statement, in any form or under any guise, falsely attacking, misrepresenting, or depreciating plaintiff's said rifle, or its accuracy, effectiveness, merit, or value.’ Defendant demurred to the complaint, and the question presented on this review is whether it states a cause of action. The following is as brief a synopsis of it as will suffice to present fully the question before us:

[171 N.Y. 386]Plaintiff is engaged in the manufacture and sale of the Marlin repeating rifles, which have become well known as a distinct model throughout the United States and elsewhere, and for some time it advertised the rifles in defendant's magazine. Defendant having advanced his rates, plaintiff withdrew the advertisement, whereupon defendant published letters, purporting to be from correspondents, reflecting on the rifle; such publications taking place, one in March and two in October, 1899, and one in September and another in November, 1900. These letters were not in fact written by correspondents, but were sham letters, written and published by defendant in furtherance of a design to force plaintiff to advertise with him, or, failing in that, to gratify his malice. The first letter was complimentary to the Marlin rifle throughout, and contained an expression of surprise that its advertisement no longer appeared in ‘Recreation,’ and the same issue contained an answer by the editor in which the reason for the disappearance of the advertisement was stated to be an advance in advertising rates because of increase in circulation, which advance plaintiff refused to pay, and the complaint alleges that the reason assigned by the editor for the absence of the advertisement and the statement as to its circulation are false. The first of the two letters in the October (1899) issue purports to be written from Montana, and in it the writer syas: ‘I have owned and used a great many Winchester and Marlin rifles of all models. * * * I have come to the conclusion that the Marlin is not to be compared with the Winchester as regards ease, rapidity, or certainty of action, beauty of outline, finish, and all that goes to make up a first class weapon. I consider the first model Winchester a more reliable weapon than the latest Marlin. Some one will ask, Why? And I answer: Because they handle the cartridges perfectly, and as rapidly as the lever can be worked by the operator, under any circumstances, while the Marlin might fail to handle the cartridges if handled with one-half the rapidity of the Winchester. * * * The Marlin has a faulty extractor and ejector,’-citing instances in his own [171 N.Y. 387]experience in support of his assertion and specifying what the Marlin lacks. The letter concludes: ‘Here is an extract from a well-known Northwestern gun dealer's catalogue which has been in circulation several years: ‘I do not manufacture, recommend, or guaranty Marlin rifles. If they chew up the heads of cartridges, clog up in the action and magazine it is not my fault; so do not ship them back on my hands. I have Marlin rifles for sale for those who want them, but when sold and delivered my responsibility ceases.’ A good advertisement, truly. I consider any gun that leaves the Winchester factory perfect in every respect, both as regards accuracy and manipulation.' The statement that ‘the Marlin has a faulty extractor and ejector’ is alleged to be false, and reasons are given in support of the allegation. The other letter in that issue contained the following: ‘Were the Winchester people to take the '86 model frame, and make it light for a .38-55 barrel, and then have a .38-55 Marlin barrel fitted, it would in my opinion be the ideal gun for general work for the man who cannot afford a .30-30 or other late arm. I've used Marlins a good deal, and was always bothered by the side ejector. It is no good, and the extractor in the Marlin is a little weak.’ The complaint charges that the statement in this letter that ‘the side ejector is no good’ is false, and, further, that ‘the side-ejecting system as used by plaintiff is one of the most important improvements of recent development in the art, as shown by plaintiff's successful usage in all of its repeating arms made during the last eleven

[64 N.E. 164

years.’ The letter in the September number, 1900, purporting to be signed by Percy C. Bowker, of Wakefield, Mass., states that, while out squirrel hunting with a friend named Ripley, the latter said his rifle had worn out, and on examination they found that ‘the little racker that racks the carrier had worn out’ after ‘the rifle had been fired about 800 times.’ Ripley took the gun to a dealer, who said he did not warrant the Marlin rifle. The letter compared the Winchester with the Marlin, favorably to the former, and stated that the [171 N.Y. 388]writer did not want the ‘so-called improvement’ in the Marlin, the solid top and side ejector, and expressed the opinion that there is room for great improvement in the Marlin action. The complaint alleges that the statement in this article that ‘the little racker that racks the carrier had worn out’ after ‘the rifle had been fired about 800 times' is false, and in support thereof further alleges that ‘the piece referred to is solidly and substantially designed to perform its functions. These parts are made of excellent material, carefully inspected and tested. Similar rifles, that have seen years of hard service and been fired many thousands of times, show no considerable wearing at this time. It would be impossible to wear out the part in the manner and time stated.’ The publication of November, 1900, purported to be from a correspondent, and stated, in substance, that the Marlin is handsome, but its place is at the bottom of a list of rifles; ‘no repeating rifle can handle the long rifle cartridges;’ the Marlin extractor is defective; the twist in the barrel is too short, and in a specified gun the carrier became worn out before 500 cartridges were used, which gun also shed gas into the action. These statements the complaint alleged to be false, and assigns reasons at length in support of the allegation. The complaint further alleges that the statements in such several letters have greatly injured the plaintiff in its business of manufacturing and selling its rifles, and have ‘casused it to lose sales of same to a large extent, but to what extent plaintiff is unable to state.’ It alleges on information and belief that the defendant intends to carry on said scheme, and to continue to publish in its magazine false and unfounded statements, calculated to slander and depreciate the accuracy, effectiveness, general merits, and value of plaintiff's rifle. It neither asks nor seeks any relief at law for any past publication, but alleges that the plaintiff has no adequate remedy at law, and...