Parisian Co., Inc. v. Williams

• Decision Date: 24 April 1919
• Docket Number: 6 Div. 842
• Parties: PARISIAN CO., Inc., et al. v. WILLIAMS.
• Court: Alabama Supreme Court

83 So. 122

203 Ala. 378

PARISIAN CO., Inc., et al. v. WILLIAMS.

6 Div. 842

Supreme Court of Alabama

April 24, 1919

Rehearing Denied Oct. 23, 1919

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by S.A. Williams against the Parisian Company, Incorporated and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Suit for malicious prosecution by S.A. Williams, appellee, against appellant, the Parisian Company, and its manager, Laurens Block, resulting in a verdict and judgment for the plaintiff in the sum of $3,000, from which judgment the defendants prosecute this appeal.

The evidence for the plaintiff tended to show as follows: That he was manager and largely interested in the firm of S.A Williams & Co., a mercantile establishment in the city of Birmingham, engaged chiefly in selling ladies' ready-to-wear clothing; and that the defendant the Parisian Company, of which the defendant Laurens Block was manager and had full charge and control, was engaged in the same business. The two stores were in the "same block on Third avenue, about Nineteenth street, between Nineteenth and Twentieth streets, on the south side of the avenue," and adjoined. At the time this cause of action arose, the Williams Company had been in business for about two months and prior to this occurrence the plaintiff had been approached by defendant Block with a view of buying him out but the plaintiff finally refused to sell. Prior to this occurrence plaintiff had also been approached by defendant Block's kinsman, who was also his attorney, with a complaint as to the arrangement of the front of the S.A Williams & Co. store, which Block claimed was an imitation of the front of the Parisian Company's store, thereby deceiving the public and inducing people to enter the same under the impression it was the Parisian, as the Parisian occupied the upper floors of the building in which the Williams Company was located. However, upon investigation of the authorities, no action was brought by the attorney in the court.

Plaintiff's wife assisted in the business, and on November 3, 1916, was in New York, buying goods for the appellee. That plaintiff had very broad acquaintance with eastern manufacturers on account of his former experience as a buyer for eastern firms, and his thorough knowledge of the trade, is shown by the evidence. It is further shown that Mrs. Williams had succeeded in buying a large stock of ladies' waists, coats, suits, and evening gowns in a job lot at a very low wholesale price, and as a part of an advertising campaign she sent a telegram from New York to Birmingham, stating what she had bought, and advising that a special sale be made on them; and that the eastern manufacturers were extending every courtesy to make the business a success; that plaintiff gave the telegram to the newspaper advertising agent, who was also connected with the Birmingham Ledger, and who wrote the advertisements himself after having been given the items by the plaintiff; that the plaintiff delivered the telegram received from Mrs. Williams to the advertising agent with instructions to follow out those items and advertise them as the telegram called for. The telegram was offered in evidence. The advertisements were written up by the agent, one in the Birmingham News and the other in the Birmingham Ledger. By mistake, either of the printer or the advertising man, the prefix "Mrs." was omitted from the signature of the telegram printed in the Ledger, but the telegram was signed by Mrs. S.A. Williams. The advertisement set out this telegram, and appeared on that day in both the News and the Ledger. The two advertisements were identical, with the exception that in the Ledger advertisement, in setting out the signature to the telegram, the prefix "Mrs." was omitted. The advertisement is as follows:

The House of Truth.

Alterations Free.

Fit Guaranteed.

S.A. Williams & Co., Inc., 1911 Third Avenue.

Now comes the most wonderful sale women's and misses' correct apparel fresh from New York Birmingham has ever known.

New York manufacturers flood the House of Truth--Birmingham's new ready-to-wear store, with values that positively cannot be duplicated in Birmingham outside this store.

Again the House of Truth demonstrates in the most forceful way the absolute supremacy of its buying power. Again the big manufacturers of the East prove their heart and soul interest in the success of this new store. This purchase, which covers suits, dresses, coats, waists, etc., is purely a compliment to Mr. S. A. Williams, who, for many years has been one of the largest buyers of ladies' and misses' apparel in the East. The telegram tells you the story. Most of these are but one and two of a kind. Exclusive models and the very cream of New York's fashions.

Ready Saturday morning--extra salespeople to serve you promptly. Note.--Despite the sensationally low prices, all alterations will be made absolutely free of charge and fit is guaranteed.

"Western Union Telegram.

"Newcomb Carlton, Pres. Geo. W.E. Atkins, Vice-Pres. Belvidere Brooks, Vice-Pres. Received at Birmingham, Ala., Nov. 3, 1916. S.A. Williams & Co., Inc., 1911 3rd Ave., Birmingham, Ala. Manufacturers are combining in helping us make a big success. Bought job lot plush coats. Values to twenty-seven fifty--sell at fourteen ninety-five, also lot novelty coats, values to twenty-two-fifty--sell at nine ninety-five. Special lot plush coats value fifty dollars, sell at twenty-nine ninety-five. Georgette and crepe de chine waists, values to seven fifty, sell at two ninety-five. Afternoon and evening gowns, values to fifty dollars, sell at nineteen ninety-five. Two hundred suits, all sizes, values to thirty-five, sell at fourteen ninety-five. Beautiful serge dresses values to twenty, sell at nine ninety-five. These are the most wonderful values ever offered in Birmingham. Advertise them strong for Saturday's selling. Birmingham women will be certain to appreciate this timely sale.

"Mrs. S.A. Williams."

Plush Coats. [ Here picture appears.] $27.50 values, $14.95.

Handsome new plush coats. A value you cannot afford to miss. $50.00 values, $29.95.

You who have waited for

that rich plush coat need wait no longer.

$20 New Serge Dresses, $9.95.

Lovely dresses less than half value. $7.50 Georgette and Crepe De Chine, $2.95. [ Here picture appears.]

Twenty styles to pick from. Never a waist value like this in Birmingham before.

Beautiful Afternoon and Evening Gowns, $19.95, values to $50. [ Here picture appears.]

The most charming creations in evening and afternoon frocks you have ever beheld. All colors and black. Samples, only one of each. 200 Suits [Here picture appears.] All sizes $35.00 values, $14.95.

The smartest suits that have been South this season. Mostly one and two of a kind. All colors. Handsomely tailored, fur and velvet trimmings, novelty buttons, etc. $35.00 values.

The House of Truth

New Store, New Goods.

S.A. Williams & Co., Inc.

1911 Third Avenue.

Mall orders promptly filled when cash accompanies order.

That upon appearance of these advertisements in the paper, the defendant Block called one Cullen, who was acting secretary of what was known as the Ad Club, an organization of some of the retail firms of Birmingham, organized to protect themselves against excessive advertising rates, and also to protect the public against false and fraudulent advertisements. Defendant Block also called up an attorney, who was at that time counsel for the Ad Club, and, also, the advertising managers of other firms in Birmingham, all of which resulted in a conference at defendant Block's private office, which was his office as manager of the Parisian Company, at its place of business. All of those present at the conference were members of .the Ad Club, except Block, and composed what is known as a protection committee. The president of the club was summoned and brought into the conference at this meeting. The defendant Block stated to the secretary that he wanted to call attention to an advertisement which he believed to be untrue, false, and misleading, and stated that the advertisement contained a "fake" telegram, to which the secretary replied he was ready to investigate it, and Block suggested that a warrant should be issued before an investigation was made in order to secure the evidence. The secretary desired that the evidence be secured before any warrant was sworn out; and it was suggested that two of the articles advertised--a plush coat and a georgette waist--be bought. It was finally agreed that the secretary's wife do the buying. It developed that there were no funds in the treasury of the club for this purpose, and thereupon the defendant Block offered to furnish the money, and gave the secretary $17.50, with which his wife was to make the two purchases above mentioned. The defendant Block also paid $25 to the fund out of which the fee of the club's attorney for the prosecution was to be paid. A few days subsequent defendant Block paid an additional $25 to this fund, either for himself or for some other party not disclosed. It is further shown that the secretary's wife was instructed to purchase one of the cheaper waists.

The purchases were made, and the secretary of the club stated that the coat bought was found to be the full value placed upon it in the advertisement; but the waist was variously estimated at different prices. The evidence for the defendant tended to show that it was not of the value of $7.50, as advertised. Defendant's evidence shows that, in the conference the advertisements in each of the papers were before them, and it was known that the plaintiff was not in New York.

Before the prosecution, the plaintiff was not consulted to see...