Lodge v. Weld

2 N.E. 95, 139 Mass. 499, 1885 Mass. LEXIS 137

Opinion

C. Allen, J.

There was no consent in writing of John D. Williams, or of his legal representatives, to the continued use of his name in the firm by the defendant. The only consent in writing which he gave personally was to Moses Williams and David W. Williams. Nobody assuming to represent him has given any such written consent to the defendant. It would be a strained construction to hold that the note of the plaintiff to the Messrs. Williams, ordering some cooking wine, carried with it a consent sufficient to satisfy the statute. Moses Williams, the executor of John D. Williams, never gave a written consent in his representative capacity, although his letters may fairly be held to show his personal consent that the defendant might use the name of John D. Williams in the firm.

It is to be assumed, therefore, that the use by the defendant of the name of John D. Williams in his business is within the prohibition of the Pub. Sts. o. 76, § 6.

Footnotes

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* The question remains, whether the plaintiff can maintain a bill in her own name to restrain such use.

It is a natural inference from the phraseology of the statute, that the persons whose consent in writing is required in order to justify the use of the name would be the only persons entitled to remedy the wrong, if committed. And so it has been considered heretofore. Bills in equity for this purpose have always been brought, so far as appears in the reports, in the name of the person himself whose name was used without authority, or of his executor or administrator. Bowman v. Floyd, 3 Allen, 76. Morse v. Hall, 109 Mass. 409. Hallett v. Cumston, 110 Mass. 29. See also Rogers v. Taintor, 97 Mass. 291. But, in the present case, the estate of John D. Williams has been settled, and there is no executor or administrator living, and the plaintiff, being his daughter, seeks to enforce the remedy, and contends that, under the circumstances, she is to be deemed a legal representative, within the meaning of the statute.

There can be no doubt that the ordinary meaning of the term “ legal representatives ” is executors and administrators. Cox v. Curwen, 118 Mass. 198. Price v. Strange, 6 Madd. 159. In wills, the term may mean whatever the testator intended; but, if the meaning is not controlled by the context, it means execu-* tors or administrators. 2 Wms. Exrs. (6th Am. ed.) 1216-1220. In the construction of statutes, technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, are to be construed and understood according to such peculiar and appropriate meaning, unless such construction would be inconsistent with the manifest intent of the General Court, or repugnant to the context of the same statute. Pub. Sts. c. 3, § 3, cl. 3. Accordingly, in a particular statute, this' term was held to include heirs. Johnson v. Ames, 11 Pick. 173, 180. Looking at the legislation now before us for construction, nothing is found to change the ordinary meaning of the term. The enactment was first passed in 1853 (St. 1853, c. 156); and was continued in the Gen. Sts. c. 56, §§ 3, 4; and is now found in the Pub. Sts. c. 76, §§ 6, 7.

The circumstance that there may come a time when there is no legal representative of a person deceased, and can be none for want of legal authority to appoint an administrator de bonis non, is not decisive to control the ordinary meaning of the words. But for the statute, clearly the plaintiff would have no right to maintain the bill. The only question is, whether she is within its meaning. If the statute does not go far enough to give to her this right, that is a matter for the consideration of the Legislature, and not for üs. The right is conferred only upon the legal representatives. The statute looks rather to the matter of property, and seeks to enable a profitable disposition to be made of partnership assets, to enable the executor or administrator to sell the good will and the right to use the partnership name, and to give effect to such sale by securing the purchaser in the use of it. If it had been intended to go further,' it is reasonable to suppose that the Legislature would have used appropriate language to show that meaning. A powerful argument has been addressed to us, in behalf of the plaintiff, that peculiar circumstances may exist, making it proper for a child to vindicate the memory of a parent by restraining the use of his name by successors who have departed from his methods of business, and who may thereby bring discredit upon his name. This, however, is for the Legislature. The existing statutes, as it seems to us, are not broad enough for that purpose.

Some confirmation of this view is derived from taking into account the state of the law, as it existed independently of these statutes. Ordinarily, an assignment of the good will and business of a firm includes the exclusive right to use the name of the firm. Levy v. Walker, 10 Ch. D. 436. Hall v. Barrows, 4 De Gf., J. & S. 150. Churton v. Douglas, H. R. V. Johns. 174. 2 Lindley on Part. (4th ed.) 861, 862. This right is regarded as property. The statute, .in putting a limitation upon the rights to be acquired after its enactment by a mere succession in business, and in prohibiting an unauthorized use of another person’s name, would naturally confine the remedy to those representing the property rights of such person.

It was further contended, on behalf of the defendant, that he had a vested right, by succession, to the use of the firm name of John D. & M. Williams, under the assignment executed by John D. Williams prior to the enactment of the St. of 1853, and also that the plaintiff’s right, if any, would be barred by loches. But being of the opinion, for the reasons above stated, that the plaintiff’s bill cannot be maintained, we do not enter upon the consideration of these further objections. Bill dismissed.

This section is as follows :

“ No person carrying on business in this Commonwealth shall assume or continue to use in his business the name of a person formerly connected with him in partnership or the name of any other person, either alone or in connection with his own or with any other name or designation, without the consent in writing of such person or of his legal representatives.”