Yale Co-op. Corp.. v. Rogin.

• Decision Date: 01 May 1947
• Citation: 53 A.2d 383,133 Conn. 563
• Court: Connecticut Supreme Court
• Parties: YALE CO-OP. CORPORATION v. ROGIN.

133 Conn. 563

53 A.2d 383

YALE CO-OP. CORPORATION

v.ROGIN.

Supreme Court of Errors of Connecticut.

May 1, 1947.

Appeal from Superior Court, New Haven County; Shea, Judge.

Action by Yale Co-operative Corporation against Bernard S. Rogin for an injunction restraining the defendant from the use of the plaintiff's name or a similar one, brought to the Superior Court. Judgment for the plaintiff, and appeal by the defendant.

No error.

Julius B. Schatz and Arthur D. Weinstein, both of Hartford (Joseph P. Kenny, of Hartford, on the brief), for appellant (defendant).

Catherine J. Tilson, Frank E. Callahan, and Frederick H. Wiggin, all of New Haven, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKINSON, JJ.

ELLS, Judge.

The Yale Co-operative Corporation is located in New Haven and has been continuously engaged in the business of buying merchandise and selling it at retail since its organization in 1892. During that period it has occupied a store at various locations near the geographical center of Yale University. The store has been known as the ‘Yale Co-op’ since 1899 and has been so advertised for many years. The annual volume of its business is about $500,000. Approximately 40 per cent of its retail trade is made up of the sale of books, including dictionaries. Its principal customers are the Yale students and faculty in New Haven and alumni of Yale University in New Haven and throughout the United States. It brought this action to enjoin the defendant from doing business under the name ‘Yale Co-op Books' and from selling books labeled with an abbreviation or contraction of its name. The trial court issued an injunction, and the defendant has appealed.

The defendant's first claim is that the plaintiff is not a corporation and does not have capacity to maintain the action. The articles of association show that the plaintiff was organized under the provisions of § 1907 of the General Statutes of 1888, which permitted the organization of a corporation without capital stock ‘for any lawful purpose,’ and which provided that it might hold real and personal estate the annual income from which should not exceed $5000. The articles of association were duly filed in the office of the secretary of state and in the town clerk's office at New Haven. The statutes now provide that corporations without capital stock may not be organized for the purpose of carrying on a mercantile or manufacturing business or one solely conducted for profit, but the limitation as to the amount of property which may be held has been removed General Statutes, Cum.Sup.1935, § 1402c. Upon the basis of evidence that the plaintiff has exercised corporate franchises, has maintained a corporate existence, has duly elected directors and officers throughout the period, and has continuously engaged for fifty-three years in the business for which it was organized, the court properly found that it was at least a de facto corporation; DiFrancesco v. Kennedy, 114 Conn. 681, 687, 160 A. 72; and as such could maintain the present action against a person in the defendant's situation. 8 Fletcher, Corporations (Perm. Ed.) § 3857; see 13 Am.Jur. 203.

The trial court found that the defendant used the name ‘Yale Co-op’ on various dictionaries which he published and sold; that he was preparing to publish and sell a series of books under the name ‘Yale Co-op Classics'; that without the plaintiff's knowledge he had filed in the United States Patent Office petitions to register trade-marks bearing the name ‘Yale Co-op’ or ‘Co-Y-op’ and upon the granting of the petitions had registered the trade-marks in the office of the secretary of state in Hartford; that in his sworn statement which accompanied the petitions he stated that he was the owner of the trade-marks sought to be registered and that no other person, firm, corporation or association had the right to use the trade-mark in the United States; that the defendant was using the name ‘Yale Co-op Books'; that he had established offices on the third floor of a building on College Street in New Haven under the name ‘Yale Co-op Books,’ which name appeared on the office door and in the building directory; and that he was using the words ‘Yale Co-op Books' on his business stationery and checks. The defendant has not questioned this finding of facts. He claims the right to use the name ‘Yale Co-op’ on the dictionaries and the classics by virtue of contracts with the plaintiff, and seems to contend that the other uses of the name by him enumerated above are justified by and flow from those contracts.

The claim as to the classics requires but brief discussion. The court found that the defendant suggested the publication of certain classical works under the name ‘Yale Co-op Classics' and tried to persuade the plaintiff to grant him the use of its name in this connection but that no agreement was ever made, nor was any permission to use name ever given. There is evidence to support the finding, and it must stand.

The court found that in 1941 the parties entered into an agreement whereby the defendant was given the right to use the name ‘Yale Co-op’ on a dictionary which was to be known as Webster's Encyclopedic Dictionary and which was to be published by the defendant; that no time was fixed for the performance of the agreement; that the defendant arranged for the publication of three types of dictionary, in accordance with the agreement, and sold large quantities of them; and that early in February, 1943, the parties terminated the contract by mutual agreement. A principal claim of the defendant is that the court erred in finding a rescission of the contract.

The parties to this contract could as validly agree to rescind it as they could agree to make it originally. Savage Arms Corporation v. United States, 266 U.S. 217, 45 S.Ct. 30, 69 L.Ed. 253; 12 Am.Jur. 1011. ‘Mutual assent to abandon a contract, like mutual assent to form one, may be inferred from the attendant circumstances and conduct of the parties.’ 6 Williston, Contracts, Rev.Ed., p. 5171; Osborn v. Stevens, 132 Conn. 410, 414, 45 A.2d 160; Woodbridge Ice Co. v. Semon Ice Cream Corporation, 81 Conn. 479, 484, 71 A. 577. The mutual release of obligation under a contract affords sufficient consideration for a rescission. 6 Williston, op. cit., p. 5170. The question is whether the subordinate facts found by the trial court validly support its finding and conclusion that the contract was terminated by mutual agreement of the parties. The following facts were found and are not subject to correction. Subsequent to the making of the agreement, the defendant, in accordance with it, published and sold three kinds or types of Webster's dictionaries with a ‘Yale Co-op’ binding. Differences of opinion developed and the plaintiff sought a new contract. Proposals and counter proposals were made and discussed. A draft of a new contract was croposed by the plaintiff's attorneys and sent to the defendant. No reply was received, and the plaintiff pressed for an answer. In February, 1943, the defendant called at the plaintiff's store and informed its manager, who had conducted the negotiations and was authorized to act for the corporation, that he would not sign the proposed agreement; that because of a shortage of material and labor it would be impossible to publish any more dictionaries. The parties understood and treated this refusal as a termination of their existing agreement and of the negotiations for a new one, and there was no further communication between them. The agreement of 1941 could not continue to be operative unless dictionaries of the...