Tuttle v. Blow

• Decision Date: 20 June 1903
• Parties: TUTTLE et al. v. BLOW et al., Appellants
• Court: Missouri Supreme Court

75 S.W. 617

176 Mo. 158

TUTTLE et al. v. BLOW et al., Appellants

Supreme Court of Missouri, First Division

June 20, 1903

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

S. H King for appellants.

(1) The allegations of the petition show that a court of equity is without jurisdiction, and notwithstanding their allegation to the contrary, they have a plain, adequate and complete remedy at law. Sec. 7, R. S. 1889; secs. 7078, 7084, 7085, 1993, 2207, 7085. Where a statutory remedy exists, equity will not interfere or assume jurisdiction. Schlector's App., 60 Pa. St. 155. A proceeding to foreclose a mortgage under the statute is a legal remedy. 135 Mo. 604. (2) The petition is not sufficient in law to authorize the appointment of the receiver, and the order appointing him in this case. Nor is there anything in said petition to authorize the order as made. High on Receivers (2 Ed.), secs. 112, 406, 12, 11, 17 24, 106, 107, 109, 36; Jones v. Brinker, 20 Mo. 87; Vesquez v. Ewing, 24 Mo. 31; Congress Spring Co v. High Rock Spring Co., 45 N.Y. 298. (3) "A patent may be mortgaged, but a trade-mark, as such, can not be mortgaged." Brown on Trade-Marks, sec. 153. (4) The right to a trade-mark can not exist as a mere abstract right independent of, and disconnected with the business. It is not property, as distinct from, but only as incident of the business. It can not be transferred except with the business. Ween v. Brayton, 152 Mass. 103; Chadwick v. Covell, 151 Mass. 195; Schneider v. Williams, 44 N.J.Eq. 301; Hoxie v. Chaney, 143 Mass. 597; Batchellor v. Thompson, 86 F. 632; Richter v. Reynolds, 59 F. 579; Hicks v. Knost, 94 F. 626; The LePage v. Russia Cement Co., 51 F. 943; Battle v. Finley, 50 F. 106; Manufacturing Co. v. Trainor, 101 F. 54; Brown Chemical Co. v. Meyer, 139 U.S. 544; Fish Bros. Wagon Co. v. Fish Bros. Manfg. Co., 95 U.S. 461; Royal Baking Powder Co. v. Raymond, 70 U.S. 380; Marshall v. Pinkham, 52 Wis. 572; Russia Cement Co. v. LePage, 147 Mass. 201; Burton v. Stratton, 12 F. 696; Lawson on Good Will, p. 28. (5) A trade-mark does not pass with the business unless expressly agreed. Nor is it exclusive, when transferred, unless expressly so stated in the agreement. Hoxie v. Chaney, 143 Mass. 597; Chadwick v. Covell, 151 Mass. 190; Basset v. Percival, 5 Allen 347; Hazard v. Caswell, 93 N.Y. 264; Emerson v. Badger, 19 Pick. 216; Blake v. Shaw, Johns. 732; Delaney v. Delaney, 15 L. R. Ir. 55; Richardson v. Pilliner, 50 L. J. Ch. 488. (6) William T. Blow never had a trade-mark, but simply a trade name in the word "Dr. T. L. Stephens Eye-Salve." Columbia Mill Co. v. Alcorn, 150 U.S. 466; Brown Chemical Co. v. Meyer, 139 U.S. 544; P. M. Co. v. P. M. P. Co., 135 N.Y. 30; Gilman v. Nunnewell, 122 Mass. 148; Russia Cement Co. v. LePage, 147 Mass. 206; Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 Mass. 542; Kidd v. Johnson, 100 Mass. 617; Fish Bros. Wagon Co. v. Fish Bros. Mfg. Co., 95 F. 451; Alaska Packer's Assn. v, Alaska Imp. Co., 60 F. 124; Actiengessellschaft-Bereinigte-Ultramarine, etc., v. Amberg, 102 F. 552. Any one can employ the symbol of an eye. (7) Nor did William T. Blow's widow and children obtain a trade-mark or the right to use the trade name of this medicine upon his death, by operation of law or otherwise, to the exclusion of anyone else. Singleton v. Bolton, 3 Doug. 293. (8) The right to one's name on his goods and to transfer the use of his name with his goods to a purchaser, is not founded on the theory that the same is a trade-mark, but upon contract between the parties in which the transferrer expressly deprives himself of the right to use his name in connection with that particular business. Hicks v. Knots, 94 F. 657; Walter-Baker & Co. v. Baker, 77 F. 184; American Cereal Co. v. Eli Petijohn Cereal Co., 76 F. 374; Russia Cement Co. v. LePage, 147 Mass. 206; Kidd v. Johnson, 100 U.S. 617; Columbia Mill Co. v. Alcorn, 150 U.S. 466. (9) The mere name of a person does not form a property subject for a trade-mark, Ex parte Fairchild, 21 Off. Gaz. (Pat. Cas.) 789; Marshall v. Pinkham, 52 Wis. 572; Brown Chemical Co. v. Meyer, 139 U.S. 544; Columbia Mill Co. v. Alcorn, 150 U.S. 466; Royal Baking Powder v. Raymond, 70 F. 380; Lawson's Good Will, p. 21. A manufacturer acquires no property in words as such. Royal Baking Powder Co. v. Raymond, 70 F. 380. (10) Trade-mark should point out the origin or ownership, etc., of the goods or place of business. Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U.S. 542; Columbia Mill Co. v. Alcorn, 150 U.S. 466; Royal Baking Powder v. Raymond, 70 F. 380; Actiengessellschaft-Bereinigte-Ultramarine, etc., v. Amberg, 102 F. 522. The words "Dr. T. L. Stephens Eye-Salve" indicates to the public that Dr. Stephens is still making said medicine, which is not true and is misleading the public. Prince Metallic Paint Co. v. Prince Mfg. Co., 57 F. 942. (11) The purchaser, assignee, or successor to this medicine should state, in using the medicine and trade name or trade-mark, to the public, that he is such purchaser, assignee, or successor, etc.; otherwise, he is misleading the public, in which case a court of equity will not protect him in its use. Manufacturing Co. v. Trainer, 101 U.S. 54; Manhattan Medicine Co. v. Wood, 108 U.S. 223; H. S. Co. v. H. S. Co., 144 N.Y. 462; Alaska Packers' Assn. v. Alaska Imp. Co., 60 F. 103; Royal Baking Powder v. Raymond, 70 F. 380; Dennison Mfg. Co. v. Thomas Mfg. Co., 94 F. 669; Actiengessellschaft-Bereinigte-Ultramarine, etc., v. Amberg, 102 F. 552. (12) Neither the stock in trade, nor the capital invested, nor the income arising from the sales of the medicines, nor any property belonging to the said Blows could pass, even if they had transferred the "good will" of their business, unless the same was specifically or sufficiently described in the mortgage or sale. Blake v. Shaw, Johns. 732; Delaney v. Delaney, 15 L. R. Ir. 55; Richardson v. Pilliner, 50 L. J. Ch. 488.

Noble & Shields and W. H. Ludwig for respondent Caroline Lueders.

(1) A trade-mark together with the business or the right to manufacture and vend the article to which it is attached, or which it indicates, can be sold or mortgaged. Skinner v. Oakes, 10 Mo.App. 45; Oakes v. Tonsmiere, 49 F. 447; Richmond Co. v. Richmond, 159 U.S. 293; Morgan v. Rodgers, 19 F. 597; Bank v. Warren, 94 Wis. 160; Warren v. Thread Co., 134 Mass. 247; Fish Bros. v. Fish Bros., 87 F. 206; Fish Bros. v. Fish Bros., 95 F. 461; Sarrazin v. Irby Co., 93 F. 626; Kidd v. Johnson, 100 U.S. 617; Dixon v. Guggenheim, 2 Brew. (Pa.) 321. (2) The assignment to Mott and Lueders conveyed the full and exclusive right and liberty of making and vending said eye-salve together with the exclusive right to the use of said trade-mark. (3) If any ambiguity exists on the face of the instrument as to this proposition, parol evidence is always admissible to point out the subject-matter involved and explain surrounding facts and circumstances to show the meaning of the parties as expressed in the language employed in the instrument. Amonett v. Montague, 63 Mo. 201; Skinker v. Hogsma, 99 Mo. 208; Welsch v. Edmisson, 46 Mo.App. 282; Edwards v. Smith, 63 Mo. 119; Block v. Warner, 93 Mo. 374; Wolfe v. Dyer, 95 Mo. 545; Thornton v. Railroad, 40 Mo.App. 265; Weil v. Schwartz, 21 Mo.App. 372; Blair v. Corby, 37 Mo. 313.

Dawson & Garvin for respondent Curd.

(1) The trial court had original chancery jurisdiction of the persons and of the subject-matter of this suit and to issue its restraining order and appoint a receiver for the protection of the mortgages; and the petition was sufficient for the purposes of a trial on the merits in that court. Tuttle v. Blow, 163 Mo. 644; Wolff v. Ward, 104 Mo 145. (2) The order restraining defendants Blow and Ballard and appointing a receiver was properly made on complainant's application, and was properly confirmed and made perpetual by final decree after trial on merits. Glover v. Bond Ind. Co., 138 Mo. 417; Railroad v. Wear, 135 Mo. 260; Wolff v. Ward, 104 Mo. 127; Ashurst v. Lehman, 86 Ala. 372; Sims v. Adams, 78 Ala. 397; Haugan v. Netland, 51 Minn. 555; High on Injunction (2 Ed.), secs. 116, 117; Kerr on Receivers, 7-10; People v. Norton, 1 Paige Ch. 18; Carrow v. Ferron, L. R. 3 Ch. App. 729. The apparent insufficiency of the mortgaged property and insolvency of the defaulted mortgagors and impending diversion of the income and profits warranted their sequestration. Wolff v. Ward, 104 Mo. 158; Bank v. Field, 156 Mo. 311; Dunham v. Stevens, 60 S.W. 1064; High on Receivers, secs. 643, 644; Beach on Receivers, p. 194; Kerr on Receivers, pp. 7-10; Main v. Ginthert, 92 Ind. 185; Lofsky v. Maujer, 3 Sandf. Ch. 71. (3) The mortgage on its face conveys all the proprietary rights, including the exclusive right to manufacture and sell the trade-marked eye-salve, and the trade-mark would pass as an incident. Morgan v. Rogers, 19 F. 597; Filkins v. Blackman, 13 Blatchf. 443; Congress Spg. Co. v. High Rock Spg. Co., 45 N.Y. 301; Ship-wright v. Clements, 19 Weekly Reptr. 600; Fulton v. Cellars, 4 Brewst. 48; Chattanooga Med. Co. v. Thedford, 66 F. 545; Hoxie v. Cheney, 143 Mass. 592; Upton on Trade-Marks, pp. 52, 53, 80; Skinner v. Oakes, 10 Mo.App. 58; McClain v. Fleming, 96 U.S. 251. (a) Appellants are estopped by their deed to deny that the property in controversy was not conveyed by plaintiff's mortgage. Skinner v. Oakes, 10 Mo.App. loc. cit. 50; Bailey v. Trustees, etc., 12 Mo. 177; Tyler v. Hall, 106 Mo. 319. (b) Appellants, when the mortgage was given, owned and enjoyed exclusive valuable rights to manufacture and sell this eye-salve, and they had, and could have had, but one trade-mark by which to designate it. Richmond Nervine Co. v. Richmond, 159 U.S. 302; Dixon Crucible Co. v....