Fairfield v. Lowry

Sheldon, J. The plaintiff does not deny that upon the findings made at the hearing his bill was rightly dismissed. His — 358 — contention is that the right to use the names 65 Henry A. Smith,” “ Henry A. Smith & Co.” and “ Marion Smith Lowry ” in carrying on the insurance business, did pass to him by the agreement between himself and Mrs. Lowry, and that the defendants have no right to use those names in such business; and also that Mrs. Lowry is bound not to compete with him in that business, and not to solicit for herself or any other person the patronage of her former customers or of the former customers of Smith or Smith and Company, and not to interfere in any way with the plaintiff’s peaceful enjoyment of the business which he purchased from her. The written agreement of August 5, 1907, between the plaintiff and Mrs. Lowry did not purport to give to him the right to use the names in question. The effect of this material circumstance is in no wise weakened by the fact that the language of this agreement was chosen by the plaintiff himself. The fact that she allowed him to use those names for a time is sufficiently accounted for by the friendly relations that existed between the parties while she was in his employ, and does not necessarily show an understanding on her part that he had acquired the right to use them. Nor is the language of the instrument doubtful. Such cases as Winchester v. Glazier, 152 Mass. 316, 323, and Insurance Co. v. Dutcher, 95 U. S. 269, 273, have no application here. Under the provisions of R. L. c. 72, § 5, the plaintiff has no right to use in his business either of these names without the written consent respectively of Mrs. Lowry or of Smith’s personal representative. We have not considered the finding that before the execution of the written agreement Mrs. Lowry had told the plaintiff that she would not sell to him the names in question; for it may well be doubted whether it was open to the defendants to prove this fact, as the preliminary negotiations were merged in the written .agreement. If so, the fact that the evidence was received without objection would not give to it any probative effect. Butterick Publishing Co. v. Fisher, 203 Mass. 122, 132, 133, and cases cited. After the sale by Mrs. Lowry to the plaintiff of her interest in the insurance business, she had not the right to derogate from the effect of what she had done by attempting to deprive the plaintiff of any part of the business which she had sold to him. — 359 — But this did not prevent her from engaging in the same business herself, or from using her own name or that of her father in carrying on such business, although she would not be allowed to solicit business from the former customers of herself and her father. She could not so conduct her own new business as to injure the business which she had sold to the plaintiff. Old Corner Book Store v. Upham, 194 Mass. 101. Foss v. Roby, 195 Mass. 292. Hoxie v. Chaney, 143 Mass. 592. The plaintiff does not rely upon Mrs. Lowry’s promise made in January, 1908, not to engage in the insurance business for five years. He concedes the correctness of her contention that this promise was invalid for lack of consideration. So we need not consider whether under our decisions the obtaining of the actual money due to her instead of being put to suit to enforce her rights would not have been an adequate consideration for a new promise by her. Hastings v. Lovejoy, 140 Mass. 261, 265. Abbott v. Doane, 163 Mass. 433. Parrot v. Mexican Central Railway, ante, 184. Tobin v, Kells, ante, 304. The recitals of the decree were properly made. Braman v. Foss, 204 Mass. 404, 410. Certainly the plaintiff, having put those matters in issue, cannot complain of the court’s passing upon them. Recree affirmed.