Zagier v. Zagier

• Decision Date: 23 December 1914
• Docket Number: 557.
• Citation: 83 S.E. 913,167 N.C. 616
• Parties: ZAGIER v. ZAGIER ET AL.
• Court: North Carolina Supreme Court

83 S.E. 913

167 N.C. 616

ZAGIER v. ZAGIER ET AL.

No. 557.

Supreme Court of North Carolina

December 23, 1914

Appeal from Superior Court, Buncombe County; M. H. Justice, Judge.

Action by R. B. Zagier against M. and L. Zagier. From a judgment of dismissal, plaintiff appeals. Reversed.

The action was to restrain the defendants in the use of the name "Zagier" in connection with the clothiers and furnishing business in the city of Asheville. A demurrer on terms to the complaint was sustained and judgment entered dismissing the action, and plaintiff excepted and appealed.

An amended pleading which is complete and does not refer to or adopt the original pleading destroys the effect of the original pleading.

Haynes & Gudger, of Asheville, for appellant.

Jones & Williams, of Asheville, for appellees.

HOKE J.

It is recognized in this jurisdiction, and the position is in accord with authority very generally prevailing, that a man has the right to use his own name in connection with his business, provided he does so honestly, and does not resort to unfair methods by which he wrongfully encroaches upon another's rights or commits a fraud upon the public. Bingham School v. Gray, 122 N.C. 699, 30 S.E. 304 41 L. R. A. 243; Howe Scale Co. v. Wyckoff et al., 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972; McLean v Fleming, 96 U.S. 245, 24 L.Ed. 828; Blanchard Co. v Simon et al., 104 Va. 209, 51 S.E. 222; Hazelton Boiler Co. v. Hazelton Co., 142 Ill. 494, 30 N.E. 339.

In Bingham's Case, supra, it was held:

"As a rule, a trade-mark cannot be taken in a surname, and any one having the same surname as that under which a business has been long and successfully conducted by another, so as to acquire a reputation therefor, can conduct a like business under the same name, provided there be no intent to injure or fraudulently attract the benefit of the good name and reputation previously acquired by the other."

In the Howe Scale Co. Case, supra, it was said:

"Every man has the right to use his name reasonably and honestly in every way, whether in a firm or corporation; nor is a person obliged to abandon the use of his name or to unreasonably restrict it. It is not the use, but dishonesty in the use, of the name, that is condemned," etc.

And it is also well established that one may, by contract, conclude himself from the use of his own name in a given business, and the agreement will be enforced by the courts. Ranft v. Reimers, 200 Ill. 386, 65 N.E. 720, 60 L. R. A. 291; Frazer v. Frazer Lubricator Co., 121 Ill. 147, 13 N.E. 639, 2 Am. St. Rep. 73; Russia Cement Co. v. Le Page, 147 Mass. 206, 17 N.E. 304, 9 Am. St. Rep. 685; Hall Safe & Lock Co. v. Herring-Hall, etc., Safe Co., 143 F. 231-237, 74 C. C. A. 361.

A very satisfactory statement in reference to both positions will be found in Russia Cement Co. v. Le Page, opinion by Devens, Judge, as follows:

"A person cannot make a trade-mark of his own name, and thus debar another having the same name from using it in his business, if he does so honestly, and without any intention to appropriate wrongfully the good will of a business already established by others of the name. Every one has the absolute right to use his own name honestly in his own business for the purpose of advertising it, even though he may thereby incidentally interfere with and injure the business of another having the same name. In such case the inconvenience or loss to which those having a common right to it are subjected is damnum absque injuria. But although he may thus use his name, he cannot resort to any artifice or

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