Morse v. Hall

109 Mass. 409

Opinion

Ames, J.

For the special and limited purpose for which this suit is brought, we see no difficulty in maintaining it. It is not a case in which complaint is made of the misuse of an established trade mark, and it does not depend upon the provisions of the first section of the, Gen. Sts. e. 56. It is not a case within that section at all. The complaint is, that the defendants continue to use, in carrying on their business, the name of a person formerly con. nected with them in partnership, but now deceased, and that they do so without the consent of his legal representatives. Thif> would be a violation of the third section

Footnotes

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* of the statute, which the court would have power to restrain by injunction. We see no sufficient reason for holding the bill to be multifarious, either on the ground that it joins parties not interested in the same subject matter, or that it embraces several and distinct causes of action in the same suit. The administrator of the estate of the deceased person has in writing consented that Esbach, Hartman and Reed may in their business make use of the name of that person, who was once their copartner. The result is, that the plaintiffs have a joint and concurrent interest in preventing the use of the same name by any other persons. The legal and equitable right in the subject matter belongs concurrently to all the plaintiffs, and they may therefore properly join in the suit. Dan. Ch. Pract. (4th Am. ed.) 192. The subject matter of the suit is the use of the name of the deceased partner, and nothing else. Gf course there is no such blending together of distinct and separate claims as to be open to objection for multifariousness.

Demurrer overruled.

“ No person carrying on business in this state shall assume or continue to use in Ms business the name or names of any persons formerly connected with Mm in partnersMp, or of any other persons, either alone or in connection with his own or any other name or designation, without the consent in writing of such person or Ms legal representatives ”