White v. Trowbridge , 216 Pa. 11 ( 1906 )

Opinion by

Me. Justice Potter,

Counsel for appellants have here advanced the proposition that by the mere transfer of his interest in the good will of the business, the defendant was precluded from entering into a similar business in the same town, and prosecuting it in competition with the old firm, of which he had been a member. The position is wholly untenable. “ Good will ” has been defined by Judge Cooley as the favor which the management of a business has won from the public, and the probability that old customers will continue their patronage: Chittenden v* Witbeck, 50 Mich. 401; and Lord Eldon in Cruttwell v. Lye, 17 Yes. Jr. 385, spoke of it as “ simply the probability that old customers will resort to the old place.” There is a very ample discussion of this question by the supreme court of Michigan, and a full citation of the authorities bearing on the point in Williams v. Farrand, reported in 14 L. R. A. 161. It is there said, “ the doctrine that a retiring partner who has conveyed his interest in an established business, whether the good will be included or not, cannot personally solicit the old customers of the firm, has no support in principle. A retiring partner conveys in addition to bis interest in the tangible effects, simply the advantage that an established business possesses over a new enterprise.”

In the present case the contract for the sale of defendant’s interest in the business was in writing, and we do not find in it anything which can be construed into an agreement by the defendant to refrain from engaging in a similar business, under his own name.

An agreement to retire from business, and not to resume it again, is in restraint of trade, and cannot rest upon mere inference : Hall’s Appeal, 60 Pa. 458. So long as the defendant does not attempt to sell his goods as those of the old firm, or represent that his business is a continuation of the old firm, he is at liberty to engage under his own name, honestly and in good faith, in the same line of business and in the same locality.

We think the learned judge of the court below was entirely correct in his statement of the third conclusion of law, in which he says, “ The defendant is not deprived of the right to use his own name in connection with the conduct of his business simply from the fact that his surname is a portion of the trade-mark used by the copartnership of which he was formerly a member, and whose business has been continued by plaintiffs.” And in the further comment made by him in overruling the exception to this finding, as follows: “ He has no right to use said name for the purpose of misleading the public or to induce persons to deal with him in the belief that they are dealing with or acquiring the product of the old firm, or its successors in business. He also has the same right to hold himself out as the person who invented or originated the kind of wares he offers for sale, subject to the same limitations.” And in this connection it appears that the court below found as a fact, upon evidence which seems to us sufficient, that the defendant had not in this respect infringed upon or violated the rights of the plaintiffs.

So too in deciding the remaining question in this case, as to whether the defendant has so imitated the trade-mark or labels of the plaintiffs as to interfere unfairly with their business, or deceive the public, the court below has applied a well-established rule, and has found that “ the trade-mark or labels used by defendant are not so similar to those of plaintiffs in appearance, or in the sound and connection of the words, as are likely to cause a person of ordinary intelligence, using ordinary caution, in making purchases to be misled.”

This finding is really the gist of the whole case, for if the action of the defendant has deceived or is likely to deceive purchasers, so that they have purchased or will probably accept the goods of the defendant under the mistaken notion that they are those of the plaintiffs, then the defendant should be enjoined from any such use of the labels. But measured by this well-established rule, it does not appear from the evidence, that the defendant has in any sense offended. A comparison of the labels of the respective parties shows such marked and striking differences that no one who has eyes to see with, and uses them, can fail to notice the differences. We cannot see that the similarity is sufficient to convey a false impression, or to mislead the ordinary purchaser. The labels of defendant distinctly refer to his own manufacture, and show that the goods are those of W. S. Trowbridge, and not those of the plaintiffs, the Trow-bridge Chocolate Chip Company. While both sets of labels are descriptive of the same article of manufacture, yet the label of plaintiffs bears upon its face a prominent and distinctive emblem, a large bowl filled to the brim with chocolate chips, while the corresponding label of defendant is entirely devoid of any emblem, but has instead the distinctive and arbitrary descriptive words “twentieth century.” The distinction between the labels intended for smaller packages is equally apparent.

In fact, tbe real difficulty in this case is that the plaintiffs have reason to fear, not that the public will be deceived, but that if the fact becomes known that the defendant is engaged in the same business the public will purposely purchase the goods made by him for the reason that he was and is the originator of the confection known as chocolate chips. In other words, what the plaintiffs really desire is protection from the business competition of the defendant, carried on openly and frankly by him under his own name. As we have already seen, this was something which they did not provide for under the terms of the written agreement when they purchased from him his interest in the business, and they cannot now be permitted indirectly to attain this end which they failed to stipulate expressly for in negotiating the purchase, and which presumably was not included in fixing the amount of the consideration. The learned judge of the court below has with great industry and accuracy examined and assembled the eases bearing upon the exact questions here in dispute, has drawn from them the legal principles upon which they rest, and has with precision applied those principles to the facts of this case.

We see no reason whatever to differ from any of the conclusions reached by him.

The exceptions are overruled, and the decree is affirmed.