Zagier v. Zagier
Citation | 83 S.E. 913,167 N.C. 616 |
Decision Date | 23 December 1914 |
Docket Number | (No. 557.) |
Parties | ZAGIER. v. ZAGIER et al. |
Court | United States State Supreme Court of North Carolina |
One may use his own name in connection with his business, where he does so honestly, and does not resort to unfair methods, nor wrongfully encroach on another's rights, nor commit a fraud on the public; for as a rule a surname may not become a trade-mark.
[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 84; Dec. Dig. § 73.*]
One may by contract deprive himself of the use of his own name in a given business.
[Ed. Note—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 84; Dec. Dig. § 73.*]
An amended complaint making an entire statement of a cause of action supersedes the original complaint.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 73G-743; Dec. Dig. § 252.*]
A complaint, in a suit to restrain defendant in the use of his name in connection with his business, which alleges that defendant, when he began business in the city, expressly contracted with plaintiff, for a valuable consideration, not to engage in such business in the city at any time under his name^ and that defendant wrongfully began his business in the city under his name, and that plaintiff engaging in that business has been thereby damaged, states a cause of action as against a demurrer.
[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 102, 103; Dec. Dig. § 92.*]
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.
Haynes & Gudger, of Asheville, for appellant.
Jones & Williams, of Asheville, for appellees.
HOKE, J. [1] 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 Sup. 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., 142 111. 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."
said:
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, 200 111. 386, 65 N. E. 720, 60 L. R. A. 291; Frazer v. Frazer Lubricator Co., 121 111. 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 Fed. 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:
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Warren v. Susman
...any objection. The effect of an amendment of a complaint, as superseding the original pleadings, was stated at the last term in Zagier v. Zagier, 83 S.E. 913, and in Warren v. A. & Y. R. Co., 156 N.C. 591, 72 S.E. 481. It is sufficient to say, though, that the case was tried below on the is......
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Burrell v. Dickson Transfer Co.
...were the amended complaint and the answer thereto. The original complaint had been superseded by the amended complaint. Zagier v. Zagier, 167 N.C. 616, 83 S.E. 913; Griggs v. Griggs, 213 N.C. 624, 627, 197 S.E. The conclusion reached is that the case is now pending for trial on said amended......
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