Clark, J.:
The Court below found as facts: That Rev. Wm. Bingham established a classical school at Wilmington, N. 0., in 1793, which he subsequently removed to Chatham county and thence to Orange county, N. 0., where said school was conducted by him up to his death in 1826; it was then continued by his oldest
son Wm..J. Bingham till 1857, when he associated with him his two sons, William Bingham and Robert Bing-ham, till 1861 when the latter entered the Confederate army and shared its fortunes until the end came in 1865. In 1864 William J. Bingham, on account of ill health, gave up teaching and his son William Bingham procured the school to be incorporated by the Legislature as the “Bingham School.” “ William Bingham and those who may be associated with him, ” being named as the in-corporators in said charter; in the articles of agreement made between William Bingham and William B. Lynch and Stuart White, whom he “associated with him,” under the above charter provision, it is stipulated “nothing herein contained shall prejudice the original and ultimate right of property in the name of said school pertaining to William Bingham as the representative of the name and reputation of the school.” In 1865 Stuart White retired from the school, selling out his interest to William Bingham, and Robert Bingham assumed his place as teacher and member of the corporation; the school was removed to Mebane, N. 0., and conducted by the two Binghams and Lynch till 1872, when William Bingham withdrew from actual participation in the school work and died, in 1873; in 1879, Lynch sold out to Robert Bingham who conducted the school under his sole management, the widow of William Bingham conducting the boarding department, till 1891, when Robert Bingham removed the school to Asheville, N. 0., and has conducted it there till the present time; the charter expiring, Robert Bingham had the. school again incorporated by Act of the Legislature in 1895; on the death of William J. Bingham in 1866 he left his school property to his two sons, and on the
death of William Bingham, in 1873, he left all his property to his widow for life and after her death to his children; Robert Bingham qualified as executor under the will of his brother, William Bingham, and settled up the estate, but did not account to the estate or the legatees thereof for any interest they might have in the good will or name of the “Bingham School”; the defendants are the widow and children of William Bing-ham and are conducting a School at Mebane, N. C. ” on the site of the old school and under the style of the “William Bingham School,” and. in their catalogues and advertisements claim that .the school was organized in 1793, and they assert that the school is one of the rightful successors of the name and reputation of the school founded and conducted by the Binghams since 1793, and maintain that they have the right to style themselves the “Bingham School,” should they so desire.
Upon the above facts the court below properly adjudged that “neither the plaintiff corporation nor Robert Bingham is the sole and exclusive owner of the name and reputation of the School organized by William Bingham in 1793 and conducted by that family continually till 186é, that defendants, acting under the authority of the widow and children of William Bingham, deceased, have a rightful share in the name and reputation of said School and are of right entitled to use the name of William Bingham School of Orange county, N. C., and to claim that their school is one of the successors of the school established in 1793,” and dissolved the restraining order which had been previously granted at the instance of the plaintiff.
As the defendants are the widow and children of William Bingham (or those acting under their authority) who are conducting the school on the old site at Mebane,
we see -no ground upon which the plaintiff can ask that they be prohibited from styling the school, if they wish, the “Bingham School,” and most certáinly no reason why the’plaintiff should enjoin their using the present style the “William Bingham School” to which the plaintiff can lay no claim and which is sufficiently distinctive from the plaintiff’s title.
That the plaintiff is incorporated as the “Bingham School” does not give it the exclusive right to that name; another corporation might he created by and operated under the same title, when not in the same locality, in the absence of proof of an intent to injure the first named corporation or to avail itself fraudulently of the other’s good name and reputation. Where there was a Fulton National Bank in New York and a Fulton National Bank was subsequently opened in Brooklyn, the former could not enjoin the latter.
Farmer's L. & T. Co.
v.
Farmer's L. & T.
Co., 1 N. Y., Supp. 47.
As a rule, a trade mark cannot be taken in a surname, and any one named Bingham could start a school called the “Bingham School,” in the absence of proof of intent to injure, or fraudulently attract the benefit of the good name and reputation acquired by a previously existing “Bingham School”
(Brown Chemical Co.
v.
Meyer,
139 U. S., 540; 2 Beach Inj., Section 762) and certainly there could be no confusion between a Bingham School at Asheville and a school even of the identically same name at Mebane, N. C.
Investor Pub. Co.
v.
Robinson,
82 Fed. Rep., 56.
Butin truth the doctrine of “trade mark” can have no application except reasoning by analogy which is often deceptive. This is a case of the right to “good will.” The corporation running the school recognized in 1864 that the “good will” was the individual proper
ty of one incorporator, William Bingham. Being a corporation and not a partnership, that good will did not pass to the other corporators. The doctrine as to the passing of good will to the remaining partners, on the retirement of one, has no application, as in
Menendez
v.
Holt,
128 U. S., 514. On the expiration of the corporation in 1894, this good will was still the property of the widow of William Bingham, to whom all his property went by his will. She could use it by putting it in a new corporation, or by joining in a school without incorporating it. In like manner, in the well known instance of the Blackwell M’t’g. Go., the right to the “brand” was the individual property of one of the stockholders. All the realty and buildings used in connection with the Bingham School from its removal to Mebane in 1864, down to the removal of Robert Bing-ham to Asheville in 1891, were the property of William Bingham till his death and then to his widow and children except about eight acres sold to Robert Bingham by them in 1875, with a covenant in the deed that the land so conveyed should be used solely to erect thereon a residence for himself and academic buildings, (the latter to be used by the Bingham School at a reasonable rent) and for no other purposes, with provision that the grantors should have the refusal should Robert Bingham at any time desire to sell said realty.
The right of Robert Bingham to operate a “Bingham School” is because of his bearing the name, and also because of an Act incorporating the school by that name.
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Clark, J.:
The Court below found as facts: That Rev. Wm. Bingham established a classical school at Wilmington, N. 0., in 1793, which he subsequently removed to Chatham county and thence to Orange county, N. 0., where said school was conducted by him up to his death in 1826; it was then continued by his oldest
son Wm..J. Bingham till 1857, when he associated with him his two sons, William Bingham and Robert Bing-ham, till 1861 when the latter entered the Confederate army and shared its fortunes until the end came in 1865. In 1864 William J. Bingham, on account of ill health, gave up teaching and his son William Bingham procured the school to be incorporated by the Legislature as the “Bingham School.” “ William Bingham and those who may be associated with him, ” being named as the in-corporators in said charter; in the articles of agreement made between William Bingham and William B. Lynch and Stuart White, whom he “associated with him,” under the above charter provision, it is stipulated “nothing herein contained shall prejudice the original and ultimate right of property in the name of said school pertaining to William Bingham as the representative of the name and reputation of the school.” In 1865 Stuart White retired from the school, selling out his interest to William Bingham, and Robert Bingham assumed his place as teacher and member of the corporation; the school was removed to Mebane, N. 0., and conducted by the two Binghams and Lynch till 1872, when William Bingham withdrew from actual participation in the school work and died, in 1873; in 1879, Lynch sold out to Robert Bingham who conducted the school under his sole management, the widow of William Bingham conducting the boarding department, till 1891, when Robert Bingham removed the school to Asheville, N. 0., and has conducted it there till the present time; the charter expiring, Robert Bingham had the. school again incorporated by Act of the Legislature in 1895; on the death of William J. Bingham in 1866 he left his school property to his two sons, and on the
death of William Bingham, in 1873, he left all his property to his widow for life and after her death to his children; Robert Bingham qualified as executor under the will of his brother, William Bingham, and settled up the estate, but did not account to the estate or the legatees thereof for any interest they might have in the good will or name of the “Bingham School”; the defendants are the widow and children of William Bing-ham and are conducting a School at Mebane, N. C. ” on the site of the old school and under the style of the “William Bingham School,” and. in their catalogues and advertisements claim that .the school was organized in 1793, and they assert that the school is one of the rightful successors of the name and reputation of the school founded and conducted by the Binghams since 1793, and maintain that they have the right to style themselves the “Bingham School,” should they so desire.
Upon the above facts the court below properly adjudged that “neither the plaintiff corporation nor Robert Bingham is the sole and exclusive owner of the name and reputation of the School organized by William Bingham in 1793 and conducted by that family continually till 186é, that defendants, acting under the authority of the widow and children of William Bingham, deceased, have a rightful share in the name and reputation of said School and are of right entitled to use the name of William Bingham School of Orange county, N. C., and to claim that their school is one of the successors of the school established in 1793,” and dissolved the restraining order which had been previously granted at the instance of the plaintiff.
As the defendants are the widow and children of William Bingham (or those acting under their authority) who are conducting the school on the old site at Mebane,
we see -no ground upon which the plaintiff can ask that they be prohibited from styling the school, if they wish, the “Bingham School,” and most certáinly no reason why the’plaintiff should enjoin their using the present style the “William Bingham School” to which the plaintiff can lay no claim and which is sufficiently distinctive from the plaintiff’s title.
That the plaintiff is incorporated as the “Bingham School” does not give it the exclusive right to that name; another corporation might he created by and operated under the same title, when not in the same locality, in the absence of proof of an intent to injure the first named corporation or to avail itself fraudulently of the other’s good name and reputation. Where there was a Fulton National Bank in New York and a Fulton National Bank was subsequently opened in Brooklyn, the former could not enjoin the latter.
Farmer's L. & T. Co.
v.
Farmer's L. & T.
Co., 1 N. Y., Supp. 47.
As a rule, a trade mark cannot be taken in a surname, and any one named Bingham could start a school called the “Bingham School,” in the absence of proof of intent to injure, or fraudulently attract the benefit of the good name and reputation acquired by a previously existing “Bingham School”
(Brown Chemical Co.
v.
Meyer,
139 U. S., 540; 2 Beach Inj., Section 762) and certainly there could be no confusion between a Bingham School at Asheville and a school even of the identically same name at Mebane, N. C.
Investor Pub. Co.
v.
Robinson,
82 Fed. Rep., 56.
Butin truth the doctrine of “trade mark” can have no application except reasoning by analogy which is often deceptive. This is a case of the right to “good will.” The corporation running the school recognized in 1864 that the “good will” was the individual proper
ty of one incorporator, William Bingham. Being a corporation and not a partnership, that good will did not pass to the other corporators. The doctrine as to the passing of good will to the remaining partners, on the retirement of one, has no application, as in
Menendez
v.
Holt,
128 U. S., 514. On the expiration of the corporation in 1894, this good will was still the property of the widow of William Bingham, to whom all his property went by his will. She could use it by putting it in a new corporation, or by joining in a school without incorporating it. In like manner, in the well known instance of the Blackwell M’t’g. Go., the right to the “brand” was the individual property of one of the stockholders. All the realty and buildings used in connection with the Bingham School from its removal to Mebane in 1864, down to the removal of Robert Bing-ham to Asheville in 1891, were the property of William Bingham till his death and then to his widow and children except about eight acres sold to Robert Bingham by them in 1875, with a covenant in the deed that the land so conveyed should be used solely to erect thereon a residence for himself and academic buildings, (the latter to be used by the Bingham School at a reasonable rent) and for no other purposes, with provision that the grantors should have the refusal should Robert Bingham at any time desire to sell said realty.
The right of Robert Bingham to operate a “Bingham School” is because of his bearing the name, and also because of an Act incorporating the school by that name. He has no title to the good will of the former Bingham School and his claim that the school at Asheville is the sole successor of the Bingham School established in 1793 can not be sustained. His claim that his school is one of the successors thereof will not be restrained because-
the defendants have not asked it, and perhaps, even if asked, the courts would not enjoin it as the damage is intangible, since it could not be shown that its use at that distant locality has perceptibly damaged the “good will” of the school at Mebane, which passed to the defendants. The incorporation of the “Bingham School” at Asheville, N. C., has only the usual effect of a charter,
i. e.
to confer the corporate rights of perpetual succession, suing and being sued, exemption from personal liability of stockholders and the like. It did not have the effect of creating a. trade mark of the Bingham name and of conferring the exclusive right to use it, in connection with school purposes, upon that corporation nor is it a prohibition upon all others named Bingham, whether of that family or of any other of the same name, using it in connection with any school they might establish. Such an idea was foreign to the legislative mind, and it is beyond the scope of the powers of the State Legislature to establish a monopoly in a family name or to confer a patent right in its use.
As to the right to claim to be a successor of the school ! ‘established in 1793” it belongs to the defendants, to say the least, fully as much as to the plaintiff. Up to 1864 there had been unbroken succession in the school taught by the Binghams and, in that year, the sole right as successor appears by the agreement amoug those then teaching to have devolved upon William Bingham, the husband of one of the defendants and father of the other defendants, Robert Bingham having left the school in 1861. This right exclusively in William Bingham in 1864 was recognized by Robert Bingham entering the corporation subject to that agreement; it was not sold by him as executor of William Bingham and is not shown to have passed by sale or otherwise in
William Bingham’s life to Robert Bingham. The incorporation of 1895, as we have seen, conferred and could confer, no such right of transfer. That Act was purely for incorporation — nothing more. If, since 1865, Robert Bingham has continuously taught in the school and since 1872 as its head, he has the benefit of that, but that does not make him the sole heir to the name and reputation acquired from 1793 to 1872. There was. a break in his own connection with the school from 1861 to 1865 and there was a decided break in the continuity of the school by the removal of it to a distant point in 1891 and he fails to show any acquisition by him of the exclusive right held by William Bingham from 1864 to his death. This presumedly went to the widow of William Bingham, under his will. Tbe break in the operation of the Bingham School at Mebane, after 1891, was not a forfeiture of the right to revive the school there as a successor of the school founded by the same family in 1793 — still less did it transfer the exclusive right to use the name of “Bingham School” upon Robert BiDgham (or tbe corporation) operating a school at Asheville.
There can be a generous rivalry between the two schools, respectively at Asheville and at Mebane, to show, by superior teaching, which is a successor in the truest sense to the celebrated “Bingham” school which has been so long an honor and a service to our State. There is room for good service by both. Neither can restrain the other in the use of the name (2 High Inj. Section 1070) and each may also claim a nominal successorship to the school originally founded in 1793.
No error.