Gaines v. Hake

DeCourcy, J.

These facts are found by the master: From 1910 to 1917 the plaintiff and the defendant bought and sold real estate in Mansfield and shared in the profits. In 1917 they opened a real estate office at 42 Chauncy Street, near the railroad station, and there conducted business as partners under the name of “L. E. Miller & Co.” until October 22, 1920, when the partnership was dissolved. At the time of the dissolution the defendant, for a valuable consideration, sold to the plaintiff her one half interest in the “ good will of the real estate business hereinbefore conducted under the name of L. E. Miller & Co. at number 42 Chauncy Street,' Mansfield, Mass., with the right to said Gaines to use the name of L. E. Miller & Co. in carrying on said real estate business together with the personal property of every kind and description now contained in the office numbered 42 Chauncy Street in said Mansfield.” She reserved, however, the right to engage in the real estate business “in any other part of said Mansfield, but not under the name of L. E. Miller & Co.”

The bill of sale was signed “ Lucetta Miller.” It appears that her maiden name was Lucy Etta Bums, although generally called Lucetta Burns. When about fifteen years of age she was married to one James Simeon Henshaw, who is still living. Her second marriage was to Barnie McNally, from whom she obtained a divorce. Her third marriage, under the name of Etta McNally, was to William C. Miller; and he died in January, 1906. She also used the names Lucetta Sloane and Lucy Etta Sloane while engaged in business at Revere. On January 22, 1921, she was married to Daniel A. Hake, at Tampa, Florida.

Since the dissolution of the partnership the plaintiff has conducted a real estate business in Mansfield under the name of “L. E. Miller & Co.,” first at the old office, and after November, 1920, in a building bought by him on Rumford *91 Avenue, around the corner from the Chauncy Street office. The defendant stayed in his office for about a month and then went to Florida for the winter. On her return, March 22,1921, she opened a teal estate office on Rumford Avenue, in the next building to the plaintiff’s, and there displayed signs which read:

“ Mrs. L. E. Miller Hake

Real Estate Agent

Mrs. L. E. Miller

Real Estate Agent ”

The signs have been changed recently so that they now I*69jd *

“ Mrs. L. E. Hake

Formerly L. E. Miller

Real Estate

Mrs. L. E. Hake

Formerly L. E. Miller

Real Estate Agent ”

The master finds that the defendant did business under the name of L. E. Miller because, among other reasons, she “wished her old friends to find her and she was known by some of her acquaintances as L. E. Miller,” and “ because it closely resembled L. E. Miller & Co. and she found out that the use of that name by her did not meet with Samuel Gaines’ approval.” He also finds that “ the names ‘ L. E. Miller & Co.’ and ' L. E. Miller’ as applied in this case where there are two separate real estate offices conducted on the same street in the same town by two people who were formerly partners is confusing to the public.”

On the facts found by the master, and the reasonable inferences therefrom, the trial judge was warranted in concluding that the defendant, by setting up a competing business next door to the plaintiff, and by her advertisements and conduct, intentionally and successfully sought to derogate from the good will which she had sold to him a few months before. The right reserved by her to carry on the real estate business “in any other part of said Mansfield” did not justify her in doing what she did. Nor can she shield herself behind the claim that she had a right to use *92 her own name. Her name was not then L. E. Miller; and she had sold any right she might have to use that name as a trade name at this location. The contention that while she could not do business as “L. E. Miller & Co.” (the company representing this plaintiff), she could do so as “L. E. Miller,” is a mere evasion of the obvious purpose of the sale of the good will. Rosenberg v. Adelson, 234 Mass. 488 . Libby, McNeill & Libby v. Libby, 241 Mass. 239 .

The decree, however, is too broad in respect to the territory covered. It should be modified by omitting the words “ or in said county of Bristol or in the adjoining county of Norfolk.” As so modified, the decree is to be affirmed, with costs.

Ordered accordingly.