Mitchell v. Gruener

• Decision Date: 30 January 1925
• Citation: 251 Mass. 113,146 N.E. 252
• Parties: MITCHELL v. GRUENER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 113

146 N.E. 252

MITCHELL

v.GRUENER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 30, 1925.

Appeal from Superior Court, Suffolk County; P. J. O'Connell, Judge.

Bill by Ellen E. Mitchell, as executrix of John G. Mitchell, deceased, against Edward O. Gruener and others, to enjoin use of name John G. Mitchell, in violation of G. L. c. 110, § 4. From a decree dismissing the bill, complainant appeals. Reversed.

R. B. Stone, of Boston, for appellant.

W. C. Rice, of Boston, for appellees.

PIERCE, J.

This is a bill in equity brought by the plaintiff, in her capacity as executrix of the will of John G. Mitchell, late of Brookline, deceased, to enjoin the use of the name John G. Mitchell in violation of G. L. c. 110, § 4. The evidence taken by a commissioner is reported. The bill was dismissed with costs, and the suit is before this court on appeal.

The substantial material facts are as follows: John G. Mitchell for many years prior to the year 1909 carried on a high grade merchant tailoring business in the city of Boston under the name of John G. Mitchell. Pursuant to an agreement of copartnership between him and one Ferdinand Hutchins, dated January 2, 1882, an agreement for the dissolution and carrying on of the tailoring business under the name of John G. Mitchell as of July 1, 1909, was executed on April 22, 1909, between John G. Mitchell, Ferdinand Hutchins, William Wooldridge and Algernon H. Magune; the last two were employees of the former firm. The agreement made provision for the future use of the name John G. Mitchell in the terms which follow:

‘Said Hutchins and said Wooldridge and said Magune, or either of them, shall have the right to carry on business hereafter under the name of John G. Mitchell, so long as said Hutchins, or said Wooldridge, or said Magune, shall live and shall be engaged in carrying on said business, either alone or in partnership with others; but not more than one business shall be carried on under the name of John G. Mitchell at any one time.’

On July 1, 1909, a new partnership was formed between Hutchins, Wooldridge and Magune and the old business was carried on by them under the name of John G. Mitchell. December 7, 1909, John G. Mitchell died, and thereafter, in January, 1910, the plaintiff was appointed executrix of his will. Ferdinand Hutchins died on March [251 Mass. 117]27, 1912, and Magune was appointed executor of his will. Wooldridge bought the interest of Hutchins and then owned two-thirds and Magune one-third interest in the business.

On June 29, 1912, a new partnership agreement was entered into between Wooldridge and Magune. This agreement contains the following provision:

‘If either partner shall die, or retire, the right to use the name of John G. Mitchell and carrying on business under the said name shall belong to and continue in the surviving partner so far as he may be entitled to the same under the terms of an agreement between John G. Mitchell, in his lifetime and the late Ferdinand Hutchins and the parties hereto.’

In October, 1912, Magune suffered a nervous breakdown, withdrew from the business, entered the McLean hospital, and there remained until February 15, 1913. Meanwhile his wife had been appointed conservator of his estate, had sold all his interest in the business and all right of Magune to use the name of John G. Mitchell.

On February 17, 1913, Wooldridge entered into a partnership with the defendants Gruener, Toner and Burton to continue for five years and to succeed to the business previously carried on by Wooldridge and Magune. This agreement contained a provision in relation to the use of the said name, which reads:

‘In case of the death of a partner and of the purchase of his interest by the remaining partners as herein provided, the right to use the name of John G. Mitchell and to carry on said business under said name shall, so far as the deceased partner is concerned, be the property of the remaining partner.’

In February, 1913, Magune was discharged from the McLean asylum. He wanted to get back into active work and knew he could not return to the old firm under Wooldridge. He had no business occupation until March, 1914, at which time he formed a copartnership with one Chapman and that firm carried on a tailoring business of a different class than that of the firm of John G. Mitchell. November 6, 1915, Mrs. Mitchell, through sympathy and desire to restore to Magune his rights which were sold to Wooldridge, signed and gave to Magune a paper which reads:

‘The use of the name of John G. Mitchell, in the tailoring business, was conveyed to Algernon H. Magune, Ferdinand Hutchins, and William Wooldridge, as long as either of them lived. In the event of the withdrawal of Mr. Wooldridge from the firm, or his death prior to that of Mr. Magune's, I desire and authorize Mr. Magune, to at once assume all right and title in the use of the name, as given to him by John G. Mitchell, in a paper dated April 22, 1909.’

Again, at Magune's request, on May 16, 1916, Mrs. Mitchell signed the paper which follows:

‘As an expression of friendship and good will toward Mr. Algernon H. Magune of Revere, Mass., who was without his personal consent, deprived of the right conveyed to him by Mr. Mitchell to do business under the name of John G. Mitchell, as long as Mr. Magune lived, I do hereby give and assign to Mr. Magune the sole and exclusive right to incorporate in the tailoring business in Boston, under the firm name of John G. Mitchell, whenever it can legally be done. I authorize Mr. Magune to take the above privilege, whenever in his judgment it becomes necessary to do so, to protect his interest in the name of John G. Mitchell.’

July 30, 1917, Magune retired from the firm of Chapman, and thereafter had no business occupation until some time in June, 1918.

February 16, 1918, Wooldridge retired from the partnership with the defendants Gruener, Toner and Burton, and conveyed to them his interest in the firm and its business, and covenanted that he would not object to their use of the name John G. Mitchell and would not himself use the name. February 18, 1918, Gruener, Toner and Burton entered into a new copartnership agreement pursuant to their agreement with Wooldridge, and thereafter have continued to carry on the business under the name of John G. Mitchell. The defendants were aware of the provisions of the agreement of April 22, 1909, between Mitchell, Hutchins, Wooldridge and Magune, and especially as to the terms thereof in connection with the right to use the name John G. Mitchell. By an agreement dated June 13, 1918, the respondents agreed to pay Magune $500 a year for the right to use the name John G. Mitchell, gave him the right to such use of their place of business as should enable him to fully protect himself and the legal representatives of John G. Mitchell in the use of such name by them, and gave Magune an option to purchase a partnership interest in the business or to enter its service as an employee. February 17, 1921, the foregoing agreement as to the use of the name John G. Mitchell was continued with all the rights and privileges for a period of three years. Wooldridge died November 7, 1918.

November 23, 1922, Robert B. Stone, Esquire, wrote a letter to the defendants stating that Mrs. Mitchell had asked him to advise her as to her rights with respect to the continued use of the name John G. Mitchell ‘under which I understood you are doing business. According to my present information, it would seem that she has the right to prevent the continued use of that name.’ The respondents replied under date of November 24, 1922, ‘* * * We will take this up with you within a few days.’

Under the agreement of June 13, 1918, Magune received $500 a year quarterly. He devoted no active time to the business; he went in and out at his pleasure and looked over the business and examined different things; he drew no salary except the $500. He sometimes came to the place of business twice a week; sometimes once a week, sometimes once in three weeks. He kept himself in touch with the business to know what was going on; he came and went as he saw fit; he drew no pay; did not...