Tanner-brice Co v. Sims

• Decision Date: 17 December 1931
• Docket Number: No. 8630.,8630.
• Citation: 161 S.E. 819,174 Ga. 13
• Parties: TANNER-BRICE CO. v. SIMS.
• Court: Georgia Supreme Court

174 Ga. 13

161 S.E. 819

TANNER-BRICE CO.

v.SIMS.

No. 8630.

Supreme Court of Georgia

Dec. 17, 1931.

.

Syllabus by the Court.

1. A corporation in this state can by user acquire a right to use a trade-name other than its corporate name in connection with its business.

2. A corporation in adopting a trade-name can embrace therein the surname of another person, when this is done with the consent of that person; and when the corporation so uses such surname and on the faith of the license makes expenditures of money, such license becomes an agreement on a valuable consideration and irrevocable.

3. The right of a corporation to use the surname of another person with his consent is not prohibited by section 257 of the Penal Code.

4. The use of the name of another person by a corporation with his consent does not violate his right of privacy.

5. The judge did not pass upon the question whether or not the defendant violated section 3165 of the Civil Code in using the name of Sims in its trade-name; but if the question were properly before the court for decision, that section has no applicatian under the facts of this case.

Error from Superior Court, Toombs County; R. N. Hardeman, Judge.

Action by W. W. Sims against the TannerBrice Company. The trial court granted an interlocutory injunction, and defendant brings error.

Reversed.

"W. W. Sims filed his petition against Tanner-Brice Company, a corporation, making the following allegations: (1) Defendant is engaged in the wholesale grocery business. (2) On or about July 16, 1928, petitioner and defendant entered into a verbal contract, in substance, as follows: Petitioner was to establish and operate a retail grocery store in the city of Vidalia, and such other stores at other places as the defendant might determine to be expedient; such stores to be run in the name of Sims Service Stores, W. W. Sims, manager. Petitioner was to have the general management of said stores, and was to receive as compensation $45 per week and fifty per cent, of the net profits derived from the store in Vidalia. The defendant was to furnish all merchandise to the store at Vidalia, at first cost. (3) Under said contract, petitioner opened a store in Vidalia on August 10, 1928, and operated the same until May 27, 1930, when by mutual consent petitioner severed his connection with the defendant. (4) After opening the store at Vidalia, the defendant decided to establish other stores in various towns and cities in the state. All of these stores were opened and managed by petitioner under said contract.

(5) Since the opening of said stores, the defendant has opened a store at Douglas and one at Dublin, both of which are being operated under the name of Sims Service Stores, without the consent of petitioner.

(6) Defendant is now operating the same under the name of Sims Service Stores, W. W. Sims, manager, notwithstanding the fact that petitioner is no longer connected in any way with the same, and over his protest, and will continue to use the name of petitioner unless enjoined from so doing. (7) Petitioner has no adequate remedy at law. (8) The defendant has had printed, and says that there will be circulated, certain handbills and advertising matter. These handbills have the word "Sims" in large letters inclosed within a circle, and under this cir-cle appear the words, "Saves—Serves—Satisfies." At the top of these bills-appear the following: "Double Saving Event at Sims." On these bills appears a letter signed by Sims in which it is stated that saving is a most urgent question. "The most for your money is the watchword of the day. Sims Store is the successful answer to this question." At the bottom of this circular letter appears the following: "Sims, the Orange-Colored Front." The" circular advertises a big flour sale "At Sims Store, Vidalia Georgia." (9) Petitioner has been paid by the defendant all salary due him under the contract aforesaid, but has not received his part of the profits derived from the operation of the store at Vidalia. Defendant is now due petitioner as profits derived therefrom the sum of $2,000, or other large sum. He prays that the defendant be enjoined from circulating the advertising matter described in the petition, from operating in the name of Sims Service Stores, W. W. Sims, manager, or from using his name in any other manner in connection with said business; and for an accounting.

The defendant demurred upon the grounds that there is no equity in the petition, and that its allegations do not entitle the plaintiff to the relief sought. The defendant answered, admitting some of the averments of fact in the petition, but denying all of the other allegations therein, and further answering as follows: In the year 192S, it entered into an agreement with petitioner, whereby he was employed by it to open a retail grocery store in Vidalia. Under this contract, petitioner was to act as the manager of said store, and for his services defendant agreed to pay him $45 per week, and in addition fifty per cent, of the net profits derived from the operation of this store, which net profits were to be determined after deducting from the gross profits all expenses of operating the store, and after allowing five per cent, to the defendant as wholesale charges on merchandise furnished by it, which was to be furnished at actual cost plus the five per cent, added. The store was opened, and Sims entered into the management of the same, and this relation continued two or three months, when defendant decided to open other retail stores in other towns and furnish merchandise for sale in such stores from its wholesale business in Vidalia. Defendant and petitioner then entered into another agreement that petitioner was to leave the Vidalia store as active manager, was to be employed thereafter by defendant to supervise all its stores that might be established, and for his services in that capacity defendant was to pay him $45 per week, but no part of the profits for the operation of any of the stores. At the time of this agreement, defendant proposed to petitioner to sell to him a block of its capital stock, thereby giving to him an opportunity to participate in the profits that might be derived from the wholesale store and the retail stores. He did not accept this proposal. He entered upon his duties under said agreement. From the time the Vidalia store opened until the second agreement was entered into, while plaintiff was at the Vidalia store as manager, that store earned a small profit. On February 2, 1930, a full settlement between plaintiff and defendant was agreed upon and perfected, whereby the profits from the Vidalia store, without any deduction of the five per cent, wholesale charges agreed upon in the first agreement, amounted to $555.80. On said date, defendant paid plaintiff $272.90, which was accepted by him in full settlement of all profits, commission, salary, and any and all other amounts owing to him by defendant up to that date. At the time the petition in this case was filed the defendant owed the plaintiff nothing. After plaintiff left the Vidalia store, he employed inefficient and incapable men to operate It. Soon thereafter the volume of business decreased more than half. The store became unprofitable, and, from that time until the present, it has been operating at a loss. When the store at Vidalia was first opened, the name of Sims Service Store was selected, after consideration and after discussion between plaintiff and defendant for some time. This name was finally selected mainly for the reason that it appealed to the defendant as an easy sounding and well-rounded name for the store, and it was selected in connection with the motto, "Saves, Serves, Satisfies." The defendant determined that the name Sims, being short, could be easily pronounced and remembered by the public. Said name was selected without any idea of it being the name of any particular person, and especially as the petitioner owned no interest in the store, but was merely an employee of the defendant. It was selected as a trade-name, and was agreed upon between petitioner and defendant and consented to by petitioner. After defendant decided to open other stores and entered into the second agreement with petitioner in regard to his employment as supervisor of the same, it was agreed to use the same name and the same motto, and to paint all the store-fronts an orange color. This general idea has been carried out up to the present time, thus establishing the name and motto in the minds of the public, after considerable expense incurred by the defendant in advertising. The personal name of W. W. Sims has never been used in connection with said stores, in the advertising or printed matter, or otherwise, except that when he was actual local manager of the Vidalia store, when it was first opened, his name was used as manager, and during a short period recently when he was again employed as the local manager of the Vidalia store since he resigned as supervisor of all of such stores. At the time when petitionersevered his connection with defendant as the recent manager of the Vidalia store, he had already prepared and printed a circular to be distributed to the public, bearing the name of W. W. Sims as manager of the Vidalia store. As soon as petitioner's connection was severed with this store, defendant immediately changed all such advertising matter by blocking out the name of W. W. Sims, and substituting the name of the new manager employed to take his place. It has been the Invariable policy of the defendant to use the name in his printed matter for advertising purposes of the individual who was manager of each store. Never at any time has it advertised the name of W. W. Sims as manager of the stores generally, or of any of the stores, except the one at Vidalia during the time when he was manager there. It was not the purpose of defendant to use the name of W. W. Sims, or to hold out to the public that the...