Dr. David Kennedy Corp. v. Kennedy

LANDON, J. The evidence shows that much the greater part of the numerous letters addressed “Dr. David Kennedy, Rondout, N. Y.,” or “Dr. D. Kennedy, Rondout, N. Y.are letters “in connection with the manufacture of the proprietary medicines,” which, with the entire business connected therewith and the good will, the defendant, for a valuable consideration, sold to the plaintiff. The bill of sale given by the defendant to the plaintiff in 1890 contains this clause: “Also, ‘the good will’ of the business of Dr. David Kennedy now carried on by me at Rondout, N. Y., with the sole and absolute and only right to use the names of ‘Dr. David Kennedy, of Rondout, N. Y.,’ or ‘Dr. D. Kennedy, Rondout, N. Y.,’ in connection with the manufacture of the proprietary medicines hereby granted and sold by me to the said corporation.” The contract, in case of doubt, must be construed most favorably to the vendee. Blackman v. Striker, 142 N. Y. 560, 87 N. E. 484. The intention of the parties, as found in the contract,—construed with reference to the facts present to the mind of both parties in making it,—must govern. Clark v. Devoe, 124 N. Y. 120, 26 N. E. 275. If doubts still remain, then weight may be given to the practical construction given to the contract by the parties themselves during the seven years in which they worked harmoniously together under it. Such practical construction by both parties, where one party has invested his money or so managed his business in reliance upon it that to reverse or change it would be to his prejudice, may—as we think it would in this case if it were needed—amount to an estoppel. Trustees v. Smith, 118 N. Y. 634, 23 N. E. 1002. The following clause in the contract shows that the defendant meant to sell, without reserve, everything that could be reasonably embraced in the terms of the contract: “And I do hereby agree, in consideration of such payment of $150,000, as aforesaid, to execute and deliver any other or further paper the said corporation may be advised is necessary and requisite to convey and vest more fully in the said corporation all my right, title, and interest of, in, and to all of the said property and business hereby sold to the said ‘Dr. David Kennedy Corporation.’ ” All we need to say is that the defendant must observe the terms of the contract in letter and spirit. He cannot in any degree pare them down. He has been paid for full observance, and he cannot retain full pay and return scant performance. The evidence shows that, for seven years after such bill of sale, all letters so addressed were received by the plaintiff from the post office; [920] that since February, 1898, the defendant, claiming the right to do so, notwithstanding the protest of the plaintiff and its proper demand to the • contrary, has first received the letters thus addressed, and. retained such of them as he deemed proper, and then sent the others to the plaintiff. Thus, it appears—and other evidence is to the same effect—that the plaintiff is hindered and restricted by the act of the defendant in the enjoyment of its “sole and absolute and only right to use the names of 'Dr. David Kennedy, of Rondout, N. Y.,’ or ‘Dr. D. Kennedy, Rondout, N. Y.,’ in connection with the manufacture of the proprietary medicines,” and also in the full enjoyment of “the good will of the business of Dr. David Kennedy,” specified in the bill of sale. Among the letters thus addressed are some which in no way concern the plaintiff, and the first receipt of the letters by the plaintiff will in some degree subject the defendant to inconvenience. That results from the fact that his proper name, “David Kennedy,” and his trade-name, “Dr. David Kennedy, of Rondout, N. Y.,” or “Dr. D. Kennedy, Rondout, N. Y.,” have points of resemblance. His trade-name was salable property. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490; Caswell v. Hazard, 121 N. Y. 484, 24 N. E. 707; Cement Co. v. Le Page, 147 Mass. 206, 17 N. E. 304. The defendant sold it, and thus has been paid for this inconvenience. The trade-name was valuable when the plaintiff bought it, and the plaintiff has preserved its value, and probably greatly increased it by large expenditures in advertising it in connection with its business for the seven years in which the defendant himself remained the head and practical director of that business. It is an essential part of the name and fame of the plaintiff’s business. It identifies its merchandise, preserves to it its established character, and tends to secure, and, we may assume, to extend and continue, its volume of business. The suggestion that the plaintiff has abused or may abuse rights of the defendant not embraced within the bill of sale is not now pertinent. Such abuse, if it shall need judicial redress, will be considered when properly presented. Nor need we suggest to the defendant by what methods he can lessen, without prejudice to the plaintiff, the inconveniences which seem to annoy him. It is not á ease in which an adequate remedy at law exists, and, on the plainest principles of equity, the plaintiff should have relief by injunction. Practically, there is no dispute about the material facts. The judgment is reversed, and judgment directed for the plaintiff, with costs here and below; judgment to be settled by LANDON, J. All concur, except MERWÍN and PUTNAM, JJ., dissenting.