Stumpf & Langhoff, Ltd. v. Espenhain Dry Goods Co.

Kerwin, J. The facts in this case are practically undisputed. The parties to the action seek to deduce different conclusions from undisputed facts. The defendant bought the exempt portion of the stock of the bankrupt and the plaintiff bought the balance. Each advertised the sale of the stock purchased by it. The defendant advertised in the Sunday issue of the Milwaukee Sentinel: “ESPENHAINS. “WE SECURED AND OEEEE EOE MONDAY’S SELLING THE EXEMPTED STOCK OE HUBERT’S LINGERIE SHOP (BANKRUPT). 593 Downer Ave. “Consisting mainly of Infants’ and Children’s Wear, at About HALF THE WHOLESALE COST. “The purchase was not a large one, and the various lots are consequently limited, but we assure you that the savings we offer you are substantial. You should not fail to take advantage of this offering of NEW CLEAN MERCHANDISE AT ABOUT HALE PRICE. “In being permitted by process of law to select his legal exemption, Mr. Hubert A. Silberberg, the proprietor, naturally selected THE CHOICEST ITEMS, and since we bought the EXEMPTED STOCK we offer WHAT THE PROPRIETOR CONSIDERED HIS BEST MERCHANDISE AT RADICALLY LOW PRICES.” Then follows a description of goods with value and discount prices. The plaintiff also a few days later published an advertisement of the sale of goods belonging to the bankrupt stock in [586] four newspapers published in tbe city of Milwaukee, viz. Ger-mania, Free Press, Journal, and Sentinel. Tbe advertisement published by plaintiff reads as follows: “STUMPF & LANGHOFF. “STUMPF & LANGHOFF. STUMPF & LANGHOFF. “BANKRUPT SALE OF HUBERT’S LINGERIE SHOP. “593 Downer Avenue. “WOMENS AND MISSES’ DRESSES, WAISTS, MUS-LINWEAR, GLOVES, KNIT UNDERWEAR, GIRLS’ AND INFANTS’ WEAR. “EVERYTHING AT 40c. ON THE DOLLAR. 'SAVE .50 %. “We came into possession of tbe entire stock of Hubert’s Lingerie Shop through tbe United States bankruptcy court. Hubert’s Lingerie Shop was well known for exclusiveness and high quality. Practically all tbe merchandise is fresh, clean, new, and highly desirable. Our purchase price was 40c. on the dollar. Your purchase prices, therefore, will leave you a saving of 60 per cent., CONSIDERABLY MORE THAN ONE HALF. It is a sale which is bound to make a deep and lasting impression upon the memory of all those who will share in the extraordinary bargains. But we’ll let the merchandise and prices speak for themselves. Read them below.” Then follows a description of some of the articles with prices. It is clear from the advertisements of both parties that they were trying to make as much as possible out of their respective purchases. Each had a part of the bankrupt stock and was advertising the sale of it. As will be seen, the advertisement by plaintiff was of “Hubert’s Lingerie Shop.”' The advertisement of plaintiff would strongly indicate that it was offering for sale the entire stock. The advertisement of defendant was of sale of the exempt stock which it purchased. So it is difficult to see how the court below could find that the advertisement of defendant was deceptive, false,,. [587] and fraudulent. True, as contended, there was a display in large type of certain parts of the advertisement, but the facts stated in the parts displayed were true. There was no false statement in the advertisement. Surely the defendant had a right to state the facts in advertisement, even if such statement had the effect of drawing trade away from plaintiff. Counsel for respondent furnish us with a very able discussion of the doctrine of unfair competition in trade and the law relating to trade-marks and trade-names. It is clear that there is no question of trade-mark or trade-name in the instant case, and the only question is whether the defendant is shown by the record to have been guilty of any unfair competition. There was no effort by defendant to palm off its goods as the goods of plaintiff. The facts respecting the purchase of the exempt stock and sale thereof were true, and there was nothing in the advertisement calculated to mislead the public. In Howe S. Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118, 25 Sup. Ct. 609, 49 L. ed. 972, in speaking of what constitutes unfair trade the court said: “The essence of the wrong in unfair competition consists in the sale of the goods of one manufacturer or vendor for those of another; and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.” It is alleged in the complaint that upon the purchase at sales made by receivers and trustees it is the custom of the purchaser to advertise such stock, and that the exclusive right to so advertise constitutes a large element in determining and greatly increases the price paid for such stock at such sales, and if such right is hot protected such element of value is destroyed. Clearly the plaintiff obtained by the purchase of a part of the stock no exclusive right to advertise and prevent the defendant from advertising the sale of such portion as it purchased. [588] Tbe chief complaint of plaintiff’s counsel séems to be that the advertisement of the defendant, displayed as it was in part in large type, was calculated to deceive. We cannot agree with counsel for plaintiff in this regard. We are satisfied that upon the undisputed facts no case was made, hence the preliminary injunction was improvidently granted, and the order must be reversed. By the Court. — The order appealed from is reversed, and the canse remanded for further proceedings according to law.