Zweck v. Aberdeen L. & Dry Cleaning Co.

• Decision Date: 02 June 1921
• Docket Number: 4790
• Citation: 44 S.D. 176,183 N.W. 118
• Court: South Dakota Supreme Court
• Parties: HARVEY L. ZWECK, dba Aberdeen Dry Cleaning Works, Plaintiff and respondent, v. ABERDEEN LAUNDRY & DRY CLEANING COMPANY, et al., Defendant and appellants.

44 S.D. 176

183 N.W. 118

HARVEY L. ZWECK, dba Aberdeen Dry Cleaning Works, Plaintiff and respondent,

v.

ABERDEEN LAUNDRY & DRY CLEANING COMPANY, et al., Defendant and appellants. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. Frank Anderson, Judge #4790--Affirmed Max Stokes, C. O. Newcomb Attorneys for Appellants. Van Slyke & Agor Attorneys for Respondent. Opinion filed June 2, 1921; Rehearing denied July 16, 1921

GATES, J.

Action for damages for unfair competition and for an injunction. Trial to the court without a jury. From a judgment for plaintiff and from an order denying new trial defendants appeal.

This action was begun in 1919. For about 15 years prior thereto plaintiff and his predecessors conducted a dry cleaning and dyeing business in the city of Aberdeen under the trade-name "Aberdeen Dry Cleaning Works." From 1901 until 1916 two of defendants conducted a laundry business in Aberdeen under the name "Aberdeen Steam Laundry." In 1911 the said two defendants purchased a business known as the "Sanitary Dry Cleaning & Dye Works" then doing business in Aberdeen. Afterwards another of defendants purchased an interest in the latter business, and the same was conducted by the defendants Tiffany under said name "Sanitary Dry Cleaning & Dye Works" until August, 1916, when the defendant corporation, "Aberdeen Laundry & Dry Cleaning Company," was incorporated and both businesses of defendants were consolidated under said corporate name and they were thereafterwards so conducted.

Appellants complain of the insufficiency of the evidence to sustain the findings. From ample competent evidence the trial court found facts showing that confusion and loss resulted to respondent's business from and after the adoption and use by defendants of their present trade-name. From ample competent evidence the trial court also found:

"The court further finds from the evidence that defendants did fraudulently appropriate to their use and did operate their business under the name 'Aberdeen Laundry & Dry Cleaning Company,' and did, after knowledge of the confusion created thereby and the loss and injury sustained by the plaintiff, continue to operate its said business under said corporate name, whereby the plaintiff suffered irreparable loss and injury."

From the findings of fact the trial court entered the following conclusion of law:

"The court finds, as a conclusion of law, that the plaintiff is entitled to a judgment forever enjoining and restraining the defendants, their agents and servants, from doing business under the corporate name 'Aberdeen Laundry & Dry Cleaning Company,' and from advertising or soliciting trade thereunder and from using the trade-name of the plaintiff or...