Lawrence v. Hull , 169 Mass. 250 ( 1897 )

Holmes, J.

This is a bill in equity brought by the administrator of Andrew Lawrence, under Pub. Sts. c. 76, §§ 6, 7, to enjoin the defendants from using the name of Lawrence in their partnership name, which at present is Lawrence, Wilde, and Company. The defendants rely on two written instruments executed by Lawrence as constituting a consent in writing which satisfies the statute. The most important of them was executed by Lawrence to his three remaining partners on the date of his retiring from the firm of Lawrence, Wilde, and Company as then constituted. By it he sold to them, “ at this date constituting the firm of Lawrence, Wilde, & Co., all my right, title, and interest to and in any and all things and property of whatsoever name or nature, in which I have an undivided interest with said Hull, Wilde, and Darrow, as a member of the late firm of Lawrence, Wilde, & Co., which copartnership expired by limitation on the 31st day of January, 1889.” The words of conveyance are thought to carry the right to use the firm name by implication. We are of opinion that they do not have that effect. The firm is contemplated as dissolved, and the conveyance is only of the property in which the former member of a now dissolved firm has an undivided interest after the dissolution with the other former members. But the statute gave each former member the whole and undivided interest in the use of his own name, and words could not have been framed more accurately to exclude a grant of that interest. It is time, however, that the earlier words, “at this date constituting the firm of Lawrence, Wilde, & Co.,” do import a license of some sort to use that style for the partnership. But they do not purport to grant such a license; they import that in some way the license already exists. And this was the fact, as we find by referring to the other and earlier instrument. By that, while he was still a member of the firm, Lawrence agreed to sell out to his three other partners, and they agreed “to make a copartnership contract, to commence on the first day of February, A. d. 1889, for the term of five years, under the firm name of Lawrence, Wilde, & Co.” This' Lawrence assented to because he was a party to the instrument, and this was the only license the defendants or any of them ever had. It extended only for the five years contemplated by the agreement. With or without parol evidence, we can give the words no larger construction. It is to be noticed, as a confirm-. atory circumstance, that Lawrence was to receive five notes for ten thousand dollars each, running one, two, three, four, and five years from the beginning of the new partnership, and therefore was interested in its success for that time, but that after that he had no interest in it of any kind. Upon this construction of the document, it is unnecessary to advert to the fact that one of the three persons with whom Lawrence dealt has dropped out, and that a new person, has been introduced into the firm. Lodge v. Weld, 139 Mass. 499.

We see no ground for giving the plaintiff profits. The plaintiff has not been competed with unfairly, and his loss bears no relation to the defendants’ gains. He ought not to recover more than compensation for his loss, even if the reasoning of the Supreme Court of the United States should seem to suggest that possibility in patent cases. Tilghman v. Proctor, 125 U. S. 136, 148. Compare Root v. Railway Co. 105 U. S. 189, 214, 215. On the other hand, there is nothing in the act inconsistent with the allowance of damages, or making an injunction the only remedy. Whether that is intended or not is a question of construction not much helped by generalities. See Tilghman v. Proctor, 125 U. S. 136,144. But while we cannot say, as matter of law, that the damages are merely nominal, it is to be observed that neither he nor the estate which he represents has suffered beyond the infraction of a statutory right of prohibition. Decree accordingly.