WAMSUTTA MILLS '11. FOX.
I
141
WAMSUTTA MILLS
'11.
Fox.
(Circuit {)ourt, D. ConneCticut. February 4,,1892.} INJUNCTION-QUALITY OJ' GOODS SOLD-MISREPRESENTATIONS.
An employe of defendant retail dry-goods merchant, in charge of the men's furnishing goods department, advertised sales, at reduced prices, of shirts made from Wamsutta cotton,a high-grade cotton of established reputatIOn made by plainti:lf, and the clerk in charge of snch sales, in positive terms, represented the shirts sold at the advertised prices as made of Wamsutta cotton, when, in fact, 'they were made of a much inferior cotton.. Held, that a temporary injunction should be granted restraining defendant from advertising and selling such shirts as made from Wamsutta cotton, notwithlltanding defendant denied knowledge of the untrue representation, and the sales were discontinued on serV'ice of the motion papers and notice of the misrepresentation. '
. InEquity. . Bill in equity by the Wamsutta Mills' against Moses to restiaindefendant from advertising and selling'articles as made frOlD muslin Inanufactured by defendant, which were, in 'fact, made from· inferior muslin. Motion fot temporallY injunction. 'Gt'llnted. Edward D. RobbinB, for plaintiff. Cha'r'tef8 E. Gross, for defendant. SHIPMAN, District Judge. This is a bill in equity to restrain the defendant frout 'advertisinga;nd selling shirts, made' from inferior cotton shirtings/as made fromWamsutta ton shirting manufactured by the plaintiff, and known as, and generally -ealled, !l Wamsutta cotton," ha!! acquired a widely extended, ;and highteputation, and extensive salesthroughout tbecountrYi and tbat the sale of an inferior article uuder that name,' and the untrue assertion .by advertisements, and otherwise, that· the· inferior' cotton shirting is Wamsutta cotton, injure the plaintiff's reputation tbe good·wUl, abd the j)fofits of its business; The present hearing is upon a motion for temporary injunction. . . The allegations of the bill in regard to the high aTld general reputation of the cGtton sbirting manufactured by the· plaintiff, and generally ,called '.'Wamsutta," are not denied. It appears from the affidavits,that ,the defendant· isa large retail dry-goods merchant in Hartford,whose ,business is divided into departments, and that one of his employes is the head of the men's furnishing goods department. In accordance with a not unusual custom among I merchants of this class, the prices of the odd lots ou hand were reduced after the 1st of J anuaty,and were .advertised, by an extensive advel'tisement, tohe sold at these low prices .during the week beginning January 4, 1892. 'Amongmen's furnishing goods, there were advertised, "M;en'sLaundered Shirts, Wamsutta cotton, value $1.00. Men's Night-Shirts, Wamsuttaootton,47c., value 75c.'" This part of the advertisement waS prepared by the head -of said dep$rtment, without the knowledge of Fox, who did h'Ot: read it. Affidavits are produced from three persons, who bought at tbe ant's store,iin response to this advertisement, four night-shirtS and one laundered'sbirt, all which \v.ereexpressly . by the saleSman j
142 in attendance to be Wamsutta cotton. The clerk said he would warrant the laundered shirt tobe·'Wams.WPt 90ttqn, at:td, at the request of the buyer, inserted "Wam." in the bill of the goods. These shirts were all made of greatly inferior goods, which'were not the manufacture of the that of plaintiff. The defendan.t's untrue representations, that they without his'orders, that his firsLcalIed to by the' motion papers in this case, when helorthwith· ordered the;.sales to be' stopped,and that his to exerciseltH' possible care, and not to misrepresent the origin of lany article. The head of the departmentsa,ys,. that 'ther,e;,were 'laund,ered shirts on hand, stamped "Wamsutta muslin,'1 which-were made -of. Wamsutta cotton, and were marked down to 67 cents, and that the ad vertisement referred to these shirts. and;to no.othersj and that, in the advertil'lement in regard 'to thenight.shbts,he, made a mistake:, innocently,and without intentionto misreprl'll':lentj t4attbe &ales ofthese shit-ts were stopped on January 16th, .wbenihepaperswere \lerved. ,BetweeJl.tM 2d and 16th of January, 25 laundered shirts were sold,some of ,them Dlade of Warnsutta cotton, and 31 night-shirts were .sold..The l'eqeipts from the two· classes of sales were 831.32. On January 2dthe plaintiff had on hand 145 . laundered ,shirts; . and 132 night..shirts, which. ,were respectively markeddo'l'» to 67 and, 47 ·cents. 'The argument of the defendant against istbatthe.·sales were for a temporary purpose, that ,the goods on,:h,and were,ftsmllllquantity, that the repreand. that the sales were promptly when :ithedefenrlantwas informed of the. lnisrepresenta.tioDS. Thenight.shirls, are :so ·ipferior that iris: impossibltl to suppose that a 'personof thei6xperience, of,a: heat! of a, department in dry-goods was -mistaken, if, If,he: ptepared, the aqvertisement without 'knowing wht'ther he was: teUitlg,thetl,'uth pr Dothi'} was exceedingly careless. The defendant had on hand some Wamsuttalaundered shirts, 4ndsonie,of, an "in,lenol1quality. ,They,allseem' to,be-ve been marked The, .in charge. in positive terms, misreprethe character of which he, sold. I am satis,fled that in the advElrtisemeut"andiu' the sa)es 'under it, there was an to truth'onl the part of the subordinates in the defendant's ,store. The' point of most .importance which has been urged by the defendant is that· tbesales.were small in amount, have .been· stu pped ,and that an injunction is to pl'e'·en.t a threatened wrong, rather t.han to pun,i$otor' a past injury. ":It:seeks top,revel'lt a meditated wrong. more piten than tor redress an injury<alreaflydonl'l."2,Stony, Eq. Jur. §862. ·WhElna paatiJnjuryhas,oo/lsed, and, oannot be renewed Qr contilluedl,a issued. Potter:v.· C'roweU, 1, Abb. (U. In this case itcaOJbe,rellewed. It willnQt;:beconsciouslyrebut,althoug.b he has heretofore orders to his c1etb and·,employestoexercise:allpo8sible.care:ia ,this matter, and not an¥'flrticlesold .as rnadeQf any:roaterial of which they are not' p08itivel' -.tbe orders have not been, iobe.yrel±by the persons
,,:WAMstrT1!A MILLS O. FOX. "
143
in charge of the men's furnishing department, and may be still disobeyed. The 00nduct of'these personscanm>t be successfully defended. The amount of sales was amall,but it is. apparent that the litigation is to be continued, and, for!the which t I think that an injunction pendente lite should be issued. T/:le motiouis granted. ON 'MOTION' FOR REHEARING. i:
,(Fe/>ruary }9,18ll2.):, "
District Judge. Thisisa motipQ for a rehearing of theapplica.tionJora temporary. injunction in the,ttbove.entitled caUl3e, upon the ground that the meaning of that portion of the defendant's upon which the court based its reason for.granting !lninjunctiQn was misthe orqers understood. The defendant now which he issued to his clerks, not to misrepresent any article sold as made of 'aiiymaterial ofwmeh·they'were riot positive, were"given a.fter the motion papers in this casewereiscrved, orders ,had -ever been: previouslygiven,J8ild that the need of.such orders to :hi8 -clerks;against ithe misrepresentation of the ,character of .goods offered for sale had never occurred t()'him, he had assumed that suchan order wa$, neceasarilyimplied"m} acconnt of what he knew to be, his reputa,.tion among ,the people.ofi ElatlJford forfair and honest dealing, to which ,he attributes' bissuccess as·a.,merchant":1 The,meanipg:ofthe.oliigiDa(,·affidavitwas. misunderstoodj for Lsupposed"tluit it referred to ;ditectioDs whioh tbe.defen<.1ant· had previously been in the habit of gi\>ing, or'which he had,pre",iQusly given. peurs'that no. given,: and the,saeed of such orderl> had never occurred to him; upon the,assnmption that they were implied. It will ·be: observed that the, distinction between.' the facts as now ex;' pminedand;:as· formerly understood consists in the :distinctioll' between .an express order and the defendant's assumption that there was an im-·pliedorder; ,but, it is not neeessary to dwell upon thiltpoint, because I think thllit,although thepartieular, reasoD,npoll ,whieh the . order for 'an injunction'wRsbased did 'Dot exist, the facts which; as appears from all the affidavits; did exist:constitute a sufficient reason for a temporary 3njunction. The motion is denied. SH;IPMAN, i
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'If
_,oJ,.
144
FEDERAL
vol. 49.
PALMER t1. SANDERS
et at 1899.)
(CfnocuUCourt, S. D ·. .ffew York. I,BAS_PAROL EVIDENCE' TO VARY.
Parol evidence of consent by the lessor to cut trees on the leased premises and on adjoining premises is not inadmissible as varying the written lease, which provides that trees should }wt be cut on the premises without consent of the lessor.
At .Law. Action by John E. PIll mer against Elizabeth B. Sanders an<Hlharles W. Sa.nders, for maHcwus prosecution. Verdict for plaintiff. Motion by defendants' to set the same asjde, and fora new tri8.1. Denied; .. I ;. 'Palmer'& BoothlFy, for·plaintiff. c.' SandetB,for · .WBBELElt,: J. The'plaintifftooka lease for five years of a farm in New Jersey belonging to the husbandofthedefeildantE"izabeth, father oithe defendant Chllrle$, of which.they had charge,some of the fences On whiehwere gone;'.agreeing in the lease to make all necessary repairs to the fences andbuHdings, and· tolexpend $600 in improvements 011 it withjn: two and not.tO' cut any living trees·witllout· the consent·of the lessdr.· He carried some fencelo.posts away from this farm to. another. of which he had the use, near by;: They went together to look the posts up ,a\ld." oJ! the, complaint-of dafelldant Oliarles,<he was prosecuted for stealiilg-the posts, imprisoned, ;tried, ·and acqditted. This suit is brought for startingtbat prosecutionrilaliciously , Thedefendantsclaiined ,that the lposts were on the farm, piled, before the lease; he claimed .that he cut part of them on the leased premises, and the rest on land, adjoining,belohging to the lessor, with the consent of defendant Elizabeth, acting for the lessor, for re-building the fences. _: " ' ThedMeildants irisistthat the parol evidence of this consent was inadmissible,because it would vary:or' add to the terms of the written But consent to cut trees on the leased premises was expressly provided for in:the lease,and not reqilired:to: be in writing, and consent to cut on the other premises was wholly without the termaof the lease. Besides this, the parol proof must have been admissible to account for the posts which he carried away, and shows that they were not there before he went there. His right, or claim of right, to the posts on account of having cut them with this consent was the turning point on the question of want of probable cause. It was submitted to the jury on all the evidence, and found for the plaintiff. This finding is argued to have been against the weight of the evidence, and reasons in support of that view are brought forward. They were, however, well presented to the jury on the trial, and must have been considered. That there was no evidence to support the finding is not claimed. Under those circumstances, it cannot be disturbed without trenching upon the province of the: jury.