Old Corner Book Store, Inc. v. Upham
| Decision Date | 26 February 1907 |
| Citation | 80 N.E. 228,194 Mass. 101 |
| Parties | OLD CORNER BOOK STORE, Inc. v. UPHAM et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arthur H. Russell and Edward M. Moore, for complainant.
George R. Nutter, J. Butler, Studley & Brandeis, and Dunbar & Nutter, for defendants.
This is an appeal from a final decree of the superior court dismissing the plaintiff's bill. It comes before us on all the evidence without findings of fact.
It appears from the evidence that the defendant Upham was employed as a clerk in the Old Corner Bookstore from 1866 to 1872. In 1872 he became a partner and thereafter carried on the book trade at that store (as a partner or alone) until October 30, 1902, when he sold his interest therein to his then partner, George A. Moore. Moore paid Upham for his interest (it was a two-thirds interest) in the partnership $35,000, and by the terms of the assignment Upham sold and assigned to Moore (among other things) all his interest in the stock in trade of the partnership 'and all other assets of said firm and of the business heretofore conducted by said Moore and myself under the name of Damrell & Upham and including all my interest in the good will of said business.' In the following month, that is to say, in November, 1902, Moore organized the plaintiff corporation and sold and assigned to it all his stock in trade 'and all other assets, pertaining to the business now carried on by me, and recently carried on by one Upham and myself, under the name and style of Damrell and Upham, including the good will of said business.'
The defendant Upham then went abroad. On his return he was for a time engaged as the assistant treasurer of a milk company and later in real estate and insurance business. In the summer of 1905 he conceived the idea of establishing a book store in Boston, primarily for the sale of books used in the Episcopal Church, and secondarily for the general trade of a book store.
It appears in the evidence that from the time that Upham became an employé of the Old Corner Book Store until he sold his interest to Moore in October, 1902, a period of some 36 years, a part of the business carried on there was the selling of books used in or in connection with the Episcopal Church. It further appears that Upham was employed in that department when he first came to the store; that from the time when he became a partner until he sold his interest to Moore in 1902 that department of the business was under his special control and direction, with this qualification: During the last 3 years he had to devote himself to the financial affairs of the partnership and therefore left more of the church department to one Wentworth, who, at the time the defendant corporation was organized, had been employed in that department of the Old Corner Book Store and its successor the plaintiff corporation, for 10 years, with a short interruption.
The defendant Upham testified that while he was connected with the Old Corner Book Store that store was 'the most prominent church depository' in Boston. And by this we understand him to mean that it was the most prominent store in Boston for the sale of church books, or at any rate for the sale of Episcopal Church books. He further testified that the business of the new corporation was intended to be and was a business which was to compete with that of the plaintiff corporation.
The plaintiff corporation has continued the business sold to its assignor by the defendant Upham, including the church department just described. And as we have said Wentworth who in December, 1905, entered the defendants' employ was then conducting that department for the plaintiff.
The defendant Upham on his own testimony was and is a man who is very active in the Episcopal Church. He has been the treasurer of the Episcopalian Club since its organization about 1888. This club consists of some 200 or more Episcopalians. It also appeared in evidence that he was treasurer of the Margaret Coffin Prayer Book Society, which seems to be a society for the sale or distribution of Episcopal prayer books.
After conceiving the idea of setting up a rival book store the defendant Upham's next move was to solicit personally and through some one employed by him for the purpose men prominent in the Episcopal Church to subscribe to shares in a corporation to be organized to carry on the business he proposed to set up. Some of these men were admitted by him to have been customers of the Old Corner Book Store, and all of them were men in the Episcopal Church. He succeeded in getting thirty persons to subscribe to stock.
The result of this solicitation on the part of the defendant Upham was the organization of the defendant corporation on November 29, 1905. The name of the corporation was that of the defendant Upham, to wit, 'H. M. Upham Company.' The business of the corporation is stated in the agreement of association to be 'to conduct a depository for the Episcopal Church and to carry on a general book business and any other matters connected therewith.' The corporation opened a store at No. 15a, Beacon street, on December 7, 1905. On December 23, 1905, this bill was filed. The suit went to a hearing on January 10 and 11, 1906, and the final decree dismissing the bill was entered on January 15, 1906.
It appeared that the plaintiff corporation had moved its store from the corner of Washington and School streets to Bromfield street, and that it was situated there in November and December, 1905. It further appeared that this was five minutes' walk from the defendant corporation's store at 15a Beacon street.
On the day before the opening of the store of the defendant corporation the defendant Upham sent some 1,200 cards to persons in the residential part of Boston; he also sent cards to all the clergy of the diocese of Massachusetts.
So far as appeared the only persons employed in the store of the defendant corporation were the defendant Upham and Wentworth, who already has been spoken of as having been employed under Upham in the church department of the Old Corner Book Store. In November, 1905, he was an employé of the plaintiff, in charge of its church department, and he left that employment to enter into that of the defendant corporation.
We have not found it necessary to go into some further details attending the organization and make-up of the defendant corporation, nor into the circumstances under which Wentworth left the service of the plaintiff to take service with the defendant. The facts which have been stated were not in dispute, and those facts, in our opinion, are decisive of the merits of the suit now before us.
It is settled in this commonwealth that when a man voluntarily sells the good will of his business he thereby precludes himself from setting up a competing business which will derogate from the good will which he has sold. Angie v Webber, 14 Allen, 211, 92 Am. Dec. 748; Dwight v. Hamilton, ...
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