Summerfield Co. of Boston v. Prime Furniture Co.
| Decision Date | 01 July 1922 |
| Parties | SUMMERFIELD CO. OF BOSTON v. PRIME FURNITURE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Supreme Judicial Court, Suffolk County.
Suit by the Summerfield Company of Boston against the Prime Furniture Company to enjoin alleged unfair competition and for damages. From an order denying plaintiff's motion to recommit the master's report for hearing on the question of damages, plaintiff appeals, and from the final decree granting an injunction, but no damages, both parties appeal. Affirmed.
The master found that defendant, in opening its place of business, altered the front of the building by putting in new plate glass show windows, with panels, columns and furniture by rooms generally similar to the arrangement of plaintiff's windows; that though there were minor differences the effect was substantially that made by plaintiff's show windows; that defendant placed a sign over its windows and in the valances over the door and show windows which, though conspicuous from the opposite side of the street, were not noticeable by passers-by on the same side of the street; that there was no indication readily noticed by passersby of its tenancy of the store; that the doorways of both parties were recessed, to provide plate glass show windows on each side and the columns supporting the front wall of plaintiff's building had been incased in mirrors, and the same plan adopted by defendant; that plaintiff had adopted the motto ‘The House of Dignified Credit,’ and defendant the motto ‘The House of Dependable Credit’; that to intending customers of plaintiff there was nothing to indicate that defendant's windows were not part of plaintiff's store; that defendant adopted verbatim the form and printed matter of plaintiff's bill of sale, with only the difference of the name and street number and used a small book for installment payments, the pages of which were similarly ruled; that on occasions customers, believing they were in plaintiff's store, had not been undeceived, and on other occasions the salesmen had been evasive or stated that it was plaintiff's store; that these practices were known to the manager of the store, and a number of them had been called to the attention of defendant's president. Plaintiff was not prepared to show that his business had fallen off in volume or amount by reason of the acts complained of, but claimed that but for such acts his business would have been larger. The master declined to enter into this inquiry, without further order of court. Plaintiff made an oral motion to recommit the report for hearing on the question of damages, which the court denied.
The final decree enjoined the defendant (1) from maintaining its premises in such manner as to give them the appearance of being those of the plaintiff; (2) from maintaining an appearance to its premises likely to induce customers to enter in the belief that they were entering plaintiff's premises; (4) from conduct, active or passive, calculated to justify the public in the belief that they were dealing with plaintiff, from using stationery so similar to plaintiff's as to be capable of use in a deceptive manner, from dressing the windows in a manner or style in which for the time being plaintiff was dressing its windows, or with reference to merchandise specially advertised for the time being by plaintiff in such manner as would likely cause persons to believe the windows were in plaintiff's store, from any form of misrepresentation indicating directly or by inference that the parties were associated or connected, or that plaintiff's employees were, or had been connected with or employed by defendant, and from giving to prospective purchasers in any other way the impression that defendant's place of business was that of plaintiff; (5) from using the phrase ‘The House of Dependable Credit.’ It also ordered (3) that defendant place and maintain on its premises in conspicuous places signs readily legible by and visible to persons approaching its store on the adjacent sidewalks clearly indicating the ownership of the establishment, and (6) that defendant disclose the actual ownership and management of the establishment to all persons on its premises dealing with it under the apparent belief that they were on plaintiff's premises, or dealing with plaintiff.Lee M. Friedman, Paul D. Turner, and Friedman & Atherton, all of Boston, for plaintiff.
Elisha Greenhood and Albert A. Ginzberg, both of Boston, for defendant.
This suit in equity was brought to restrain the defendant from unfair trade competition with the plaintiff. The case was referred to a master. The rule required him ‘to hear the parties and their evidence, to find the facts, and report the same to the court.’
Certain objections to the master's report are printed in the record, but no exceptions were filed as required by equity rules 31 and 32. Such objections are not before us. Therefore, on the appeals of both parties, there is nothing before us except the pleadings, the master's report, the interlocutory decree and the final decree. Smedley v. Johnson, 196 Mass. 316, 317, 82 N. E. 21;Capen v. Capen, 234 Mass. 355, 362, 125 N. E. 692.
No question rightly can be raised at this time concerning profits or damages. The master declined to go into the question of profits. No exception was taken. The correctness of that action is not before us. The master made no findings concerning damages. No reason for this is stated. The bill contains no prayer for damages, but only for profits. Here again no exception was saved. The distinction between recovery of profits and recovery of damages is well settled. Forster Manuf. Co. v. Cutter-Tower Co., 215 Mass. 136, 101 N. E. 1083.
The interlocutory decree denying the plaintiff's oral motion made in open court to recommit the report for hearing before the master on the question of damages discloses no error of law. The motion was not in writing and hence we have no means of ascertaining its alleged grounds. It could not have been founded on exceptions because none were filed. There is nothing in the record to indicate what occurred before the single justice at the hearing on this motion. As was said in Regis v. H. A. Jaynes & Co., 191 Mass. 245, at page 247, 77 N. E. 774, at page 775:
‘If it appears that the amount of damage to the plaintiff or of profits realized by the defendant is only insignificant, or that no actual damage has been sustained, the court may confine its relief to an injunction.’
See Giragosian v. Chutjian, 194 Mass. 504,30 N. E. 647,120 Am. St. Rep. 570.
For aught that appears, the single justice in hearing the motion to recommit may have gone into evidence as to the facts and found that there was no warrant for assessment of damages or profits. Baush Machine Tool Co. v. Hill, 231 Mass. 30, 41, 120 N. E. 188;W. B. Mfg. Co. v. Rubenstein, ...
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