Peninsular Stove Co. v. Augst
| Decision Date | 04 April 1939 |
| Docket Number | No. 41.,41. |
| Citation | 288 Mich. 465,285 N.W. 24 |
| Parties | PENINSULAR STOVE CO. v. AUGST et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by the Peninsular Stove Company against Fred W. Augst and another, doing business under the assumed name and style of Peninsular Furniture & Repair Company, to enjoin defendants from using the word ‘Peninsular’ in their business of selling and repairing furnaces. From a decree of dismissal, plaintiff appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; Harry B. Keidan, judge.
Argued before the Entire Bench.
Carl B. Grawn, of Detroit, for appellant.
Sidney E. Doyle and Frank P. Neaton, both of Detroit, for appellees.
In January, 1931, the Peninsular Stove Company, a Michigan corporation which had been in the business of manufacturing stoves and furnaces for some 50 years, was in a failing condition. A receiver was appointed, but the record does not show the nature of the receivership, i. e., whether to conserve the assets and continue the business or to wind up and terminate the affairs of the corporation. In February, 1931, Frank C. Mack and Richard Casey, two employees of the stove company, started in business for themselves. The nature of this business was to service the Paninsular line of stoves and furnaces as well as sell stoves and furnaces. On March 3, 1931, Mack and Casey incorporated under the name of Peninsular Repair and Service Company. This new business was made possible by the purchase of parts from the Peninsular Stove Company on credit and from orders for servicing which were turned over to them by the treasurer of the ‘old stove company’ and later by its receiver. In June, 1931, the new corporation, feeling the need of additional capital, reorganized and in October, 1931, amended its articles of incorporation and changed its name to Peninsular Sales and Service Company.
On or about January 25, 1932, the old company filed notice of dissolution and about the same time the Peninsular Sales and Service Company again amended its articles of incorporation and changed its name to Peninsular Stove Company.
Sometime after plaintiff adopted the name Peninsular Stove Company, the receiver for the old Peninsular Stove Company commenced a chancery action to enjoin plaintiff from the use of that name, but that case was later discontinued by stipulation of the parties.
Defendants Fred W. Augst and Arthur W. Johnson were also former employees of the old Peninsular Stove Company. On April 1, 1931, they formed a copartnership under the assumed name of Peninsular Furnace and Repair Company and have been operating the business of selling furnaces and making repairs for any line of furnace. January 17, 1938, plaintiff filed its bill of complaint to enjoin defendants from using the word ‘Peninsular’ in their business of selling and repairing furnaces.
Plaintiff claims that the old Peninsular Stove Company clothed plaintiff with the right to use the name ‘Peninsular’ when the old company set Mack and Casey up in business in February, 1931; and that by reason of its prior appropriation and use of the name ‘peninsular’ defendants may not now employ the same name in the same line of business against the objections of plaintiff. The defendants make the claim that plaintiff acquired no right to the name ‘peninsular’ at the time it adopted it as the old stove company had not abandoned the name at that time; and that assuming prior adoption of the name by plaintiff, there is no showing of unfair competition in the acts and doings of defendants. The trial court entered a decree dismissing plaintiff's bill of complaint.
The record sustains plaintiff's claim that it adopted the word ‘peninsular’ some 28 days prior to the time defendants began using it, but it is also true that when plaintiff and defendants began using the word, there is no evicence that the odd company had abandoned the name. Nor can it be said that plaintiff acquired any right in the name ‘peninsular’ by the purchase of merchandise or extension of credit from the old company. The facts in the case at bar are to be distinguished from Dayton v. Imperial Sales & Parts Co., 195 Mich. 397, 161 N.W. 958, and Grand Rapids Trust...
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