Minas Furniture Co. v. Edward C. Minas Co.
| Decision Date | 23 February 1929 |
| Docket Number | No. 13205.,13205. |
| Citation | 165 N.E. 84,96 Ind.App. 520 |
| Parties | MINAS FURNITURE CO. v. EDWARD C. MINAS CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Porter County; Harry L. Crumpacker, Judge.
Action by the Edward C. Minas Company against the Minas Furniture Company. Judgment for plaintiff, and defendant appeals. Affirmed.Crumpacker & Friedrich, of Hammond, for appellant.
Tinkham & Galvin, of Hammond, for appellee.
Appellee is an Indiana corporation, operating a department store in Hammond. From its several departments it sells all lines of merchandise known to the retail trade, except groceries and meats. Appellant is an Indiana corporation operating a store in Hammond and one at Gary, and selling at retail, furniture, carpets and rugs, and a limited amount of house furnishings. Appellee claiming a prior right to the use of the name “Minas,” brought this action to enjoin appellant from the use of the word in its corporate name, and from alleged unfair trade competition, and for damages for alleged invasion of its rights.
The complaint, in one paragraph, is answered in three paragraphs, denial, and two affirmative paragraphs. The third paragraph, to which a demurrer was sustained, pleads laches and estoppel.
The court found its facts specially, and stated its conclusions of law, on which it rendered its decree, permanently enjoining appellant from the further use of the name “Minas” in any manner in connection with its business in the city of Hammond. From this decree, this appeal, appellant assigning as error the court's ruling sustaining appellee's demurrer to the third paragraph of answer, in overruling appellant's motion for a new trial, and in the first and fourth conclusions of law.
The special findings cover more than 50 pages of the record. It appears by them, briefly stated, that Edward C. Minas, in 1890, purchased a small hardware store and business, on the southeast corner of State street and Oakley avenue in Hammond. That same year, his brother, Emil Minas, entered his employment as a clerk. Edward C. Minas, in 1894, moved his business into a new and larger building erected by him on the south side of State street about 300 feet west of his former location. Immediately on moving into his new location he added paints and oils to his general hardware stock, and at the same time he added furniture and house furnishings, and devoted the second floor of the new building to their display and sale. The third floor was rented for about one year when he took it over and used it in connection with his furniture, household furnishings, rug, and carpet business.
Emil remained in the employ of Edward for about a month after Edward had entered the retail furniture business, when he resigned and shortly went into the second hand furniture business with one Dixon as a partner on the south side of State street, about 200 feet east of Oakley avenue.
From the beginning until March 21, 1903, Edward was the sole owner of the business, which he conducted in his own name as Edward C. Minas or E. C. Minas. On March 21, 1903, he incorporated appellee company, under the laws of Indiana, and transferred his business and all its assets, and appellee company has continued to carry on said business at the location described.
The company is empowered under its articles of incorporation to engage in the sale of any and all kinds and classes of merchandise at retail. Edward C. Minas has been president and managing officer continuously since its organization. It was capitalized for $25,000, which was increased June 27, 1912, to $125,000, and on January 3, 1918, to $375,000. All the stock is common, and has been, at all times, owned and held exclusively by Edward C. Minas and the members of his immediate family. E. Clarence Minas, a son, is vice president, and a daughter, Lucile Jenson, is its secretary.
Other lines of merchandise, including dry goods, men's clothing, and ladies' clothing, have been added and the business has been commonly known as a department store. Appellee has, at all times since first added, carried in its stock of merchandise, furniture, house furnishings, rugs, carpets, and queensware.
New additions have been made to the building, until now there is, in effect, one building with 175 feet of frontage on State street and consisting of three stories and a basement, and since 1913 appellee has occupied this entire structure for the purpose of conducting its department store. The entire third floor is occupied by the furniture department, and has been for several years past. The easterly 75 feet of the second floor is occupied by the rug and carpet department, while queensware and other lines of house furnishings are carried in other departments of the store. Appellee employs about 125 men and women, of which, 24, exclusive of drivers, are in the furniture, carpets, rugs, house furnishings, and queensware departments.
The findings disclose that appellee's place of business is located substantially in the center of the business district of the city of Hammond, which city is surrounded by cities and towns within easy access thereto by steam roads, steam cars, electric cars, street cars, bus cars, and automobiles, with a total population in round numbers of about 300,000 people, and many of these bus lines make regular stops at appellee's store. Prior to the establishment of these bus lines appellee company operated a bus service, connecting with the towns to the south and west, with the name Edward C. Minas Company on such busses. Appellee advertised its business in newspapers and on billboards using the name “E. C. Minas,” or Company. Such advertising was circulated throughout the territory surrounding Hammond, and carried matters with reference to house furnishings, furniture, rugs, and carpets. Such advertisements have been continued. Appellee has an advertising mailing list of 24,000 names covering the Calumet region, and expended in 1910, $5,000 for advertisements, which amount has gradually increased until it is now from $35,000 to $40,000 a year. In divers other matters it appears that appellee has advertised in the name of “E. C. Minas Company” or “Edward C. Minas Company.” The total receipts of its business for the year 1925 were more than $1,000,000.
As heretofore stated, in 1895, Emil Minas went into the secondhand furniture business at a location about 200 feet east of Oakley avenue, and on the south side of State street, and thereafter so continued with successive and divers changes of partners, and a part of the time alone. The name “Minas” in naming the respective partnerships was used along with the names of the respective partners. During all of this time the store had continued to be operated as a secondhand furniture store, some new furniture having been purchased at times for the purpose of filling in pieces of furniture that were missing in the stock, and some new furniture having been purchased at auction sales or from lines that were out of style. In 1907 or 1908, Emil Minas purchased the building occupied by the store, and erected a new brick building, the same being completed in 1909, and he occupied it with his business. He continued to occupy the business under his own name until May 25, 1910, when he sold the business to Maurice L. Greenwald. Prior to this sale the business had not been incorporated at any time, and the name “Minas Furniture Company” was never used in connection with the business of Emil Minas, either while he was operating alone, under his own name, or with any one of the various partners. Edward C. Minas was engaged in the business of handling furniture at least several months before Emil went into the business of handling secondhand furniture.
The line of business in which Emil Minas was engaged while in the furniture business was not the same line of business in which Edward C. Minas Company were engaged, so far as the handling of furniture was concerned during the same time. Emil Minas catered to the purchasers of secondhand furniture; Edward C. Minas and the Edward C. Minas Company handled new furniture exclusively. There was no competition between the business done in the furniture trade by Edward C. Minas and the Edward C. Minas Company on the one hand and Emil Minas on the other.
Edward C. Minas began the use of the name “Minas” in connection with the handling of new furniture in Hammond and vicinity in the year 1894, and continued the use of that name until 1904, when the Edward C. Minas Company was incorporated and succeeded to the business of Edward C. Minas. The Edward C. Minas Company continued the use of the name “Minas” in connection with the handling of new furniture in Hammond and vicinity from 1904 on to the present time. No other person, firm, or corporation used the name “Minas” in connection with the new furniture business until appellant began to use the name in 1911.
When said Emil Minas sold his business to Maurice L. Greenwald on May 25, 1910, he executed a bill of sale, in which it was stipulated inter alia that he sold the good will of his business, which consisted in the use of his name in the conduct, operation, carrying on, and transacting of said furniture business, at said premises or at any other place in the city of Hammond.
On the same date, and as a part of the same transaction, Emil Minas and Maurice L. Greenwald entered into a written agreement that a corporation to be named “Minas Furniture Company” should be formed, to which the business, and everything pertaining thereto, was to be sold and transferred, Minas agreeing to purchase one third of the stock, and after one year to sell such stock to Greenwald at a reasonable price, and agreeing thereafter not to engage in a business of a like nature. At the time of the sale, the stock inventoried $6,500, of which about 20 per cent. was new furniture.
Upon the incorporation of Minas Furniture Company one third of the stock...
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