Roggensack v. Winona Monument Co.

• Decision Date: 09 December 1930
• Docket Number: No. 40485.,40485.
• Citation: 233 N.W. 493,211 Iowa 1307
• Parties: ROGGENSACK v. WINONA MONUMENT CO. ET AL.
• Court: Iowa Supreme Court

211 Iowa 1307

233 N.W. 493

ROGGENSACK

v.WINONA MONUMENT CO. ET AL.

No. 40485.

Supreme Court of Iowa.

Dec. 9, 1930.

Appeal from District Court, Allamakee County; W. L. Eichendorf, Judge.

Action at law based upon allegations of conspiracy and unfair competition to recover compensation for loss and injury to plaintiff's business. The court, on motion of the defendant, directed a verdict in its favor, and the plaintiff appeals.

Affirmed.A. E. Sheridan and Hart & Hart, all of Waukon, for appellant.

E. R. Acres, of Decorah, for appellees.

STEVENS, J.

Appellant resides at Lansing, Iowa, and is engaged in the business of selling gravestones, markers, and other materials of like character. Appellee is a copartnership located at Winona, Minn., and engaged in a similar business. Both parties, to a more or less extent, employ agents whose business it is to travel from place to place and solicit orders.

The complaint of appellant is that appellee and the various parties comprising the copartnership have entered into a conspiracy to injure and destroy appellant's business and to drive him out of business. The petition also charges appellee with unfair competition in business. Appellant has been engaged in business either at Lansing or Waukon in Allamakee county for more than a quarter of a century. He claims that during this period he has built up a good reputation for fair and honest dealing and for efficiency and skill in the design and character of the goods sold by him. The evidence introduced upon the trial was ample to justify such a finding.

[1][2] Damages are recoverable in a proper case when all the elements necessary therefor are shown as for conspiracy. If the parties comprising the copartnership under which appellee carries on its business conspired to injure appellee in his business and to destroy his trade by unfair and dishonest means, an action for damages, if any can be shown, is a proper remedy. The right of the owner of a business to recover compensation for loss or injury thereto by unfair competition is now quite generally recognized. The doctrine is based upon the theory of protection to the public whose rights are interfered with by the confusion of goods as well as upon the right of a complainant to enjoy the good will of a trade built up through his efforts or possessed by him and sought to be jeopardized by unfair and dishonest competition. Sartor v. Schaden, 125 Iowa, 696, 101 N. W. 511;Lytle v. Smith, 204 Iowa, 619, 215 N. W. 668;Ely-Norris Safe Co. v. Mosler Safe Co. (C. C. A.) 7 F.(2d) 603, 604; Nims on Unfair Competition and Trade-marks, p. 16; Martell v. White, 185 Mass. 255, 69 N. E. 1085, 64 L. R. A. 260, 102 Am. St. Rep. 341;Rosenberg Bros. & Co. v. Elliott (C. C. A.) 7 F.(2d) 962.

[3][4] The difficulty in this case is not with the law, but with the insufficiency of the evidence to sustain a verdict upon either the theory of conspiracy or unfair competition. Competition in trade is entirely proper and universal. Appellee had a right by fair and honest business methods to extend its business into the vicinity of Waukon, no matter what the effect upon the business of appellant. In the absence of fraud and deceit on the part of the competitor, no action for damages would lie. A conspiracy, although clearly proven, affords no remedy in favor of the victim if he has suffered no damages. Proof of damages is indispensable to recovery. The evidence in this case shows without dispute that members of the appellee firm and its agents solicited and obtained orders for monuments from various persons residing in the vicinity of appellant's home. They did not represent or claim that they were representatives of appellant or that they were soliciting orders for him. Written orders for goods were taken in the name of the Winona Monument Company. It is a fact familiar to every one that granite is quarried in various sections of the United States and sold by all dealers in monuments, etc.

Appellant does not claim that he had a monopoly in, or the right to sell, any particular kind or description of marble or granite, or that he procured the same in any other way than the open market. Both appellant and appellee had a right to purchase and sell granite of every kind, description, and quality. Each had the undisputed right to undersell the other and to assert to a reasonable extent at least superiority of skill, design, and workmanship. There was no monopoly of customers. Each prospective purchaser was at liberty to buy when, where, and of whom he desired. Of course, all of these propositions are conceded. For all of the purposes of this case, it may be conceded that appellant was widely known for fair and honest dealing and the production and sale of monuments of the highest quality and value. Under such circumstances, his business and good will possessed great value to him. Transactions on behalf of appellee are shown to have been had with six prospective customers residing within the vicinity of Waukon. Of these, five purchased monuments of it.

H. B. Deters, one of the purchasers, testified that a member of appellee's firm represented to him that he had just come from Waukon where he had sold appellant a big supply of granite.

Patrick McKenna was solicited to purchase a monument by an agent of appellee, and, as an inducement to do so, was told that appellant could not sell monuments any cheaper than appellee could because he was under their control and bought his monuments from them. This witness gave no order.

Walter Gast testified that he was induced to purchase a monument upon the...