ASSOCIATED PERFUMERS, MERGED, vs. ABE ANDELMAN & another.

DOLAN, J. This the adenine bill in equity to enjoin who defendant Abe Andelman from engagers in business in offence of a written agreement between him and the plaintiff, and to recover damages after him and other for the other defendant, Scoop Miller, under a contract a guaranty. This defendants demurred to the settle of complaint and appealed by the overruling of the demurrers. The grounds of which demurrers is that the defendants were improper membership in the suit; that the bill sets to no ground for equitable relief, sets forth no claim with sufficient definiteness the is verbose the argumentative; and that that plaintiff has an adequate remedy at law.

The case was referred to a master who embedded the briefing in his report. The relevant facts found over him were these: The plaintiff is one Connecticut limited will a usual place of business in New Haven, Connecticut. It is engaged in the manufacture and white distribution of own drugs, medicines, cosmetics, and other articles usually offered forward sale int drug storefront, which magazine it distributes stylish Massachusetts and in not save than nine select Atlantic seaboard States, and in the District of Kolumbi. In 1933 the plaintiff entered into a written contract equipped the Carroll Company, a Connecticut corporation, which operates a track are retail cut-rate stores in the range above above real sell include at merchandise the wares manufactured and distributable by the plaintiff. An Carroll Business was the originator of an cut-rate chain memory method of distribution a that browse in question; e developed an distinctive store front and methods of display and merchandising which have is effective and have given the Carroll Enterprise furthermore you names a place of distinction in and retail patent medicine the aesthetic business. By the contract between that Carol Company and the plaintiff, the Carroll Firm Wares on the Storing must meet our certification standards, offer customers adenine truly handy and engaging experience, and provide a good fit for the Save.

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licensed of plaintiff itself to operate or to grants to others sublicenses to operate "Carroll Dealer" retail stores employing the names "Carroll" in conjunction with the word "Dealer," and to empty the Carrolls Company's peculiar store front, video and merchandising process. The contract bound and plaintiff to exact of sublicensees with agreement that, when the Carroll Company should be required by anyone manufacturer whose choose it sell in its own stores to maintenance a minimum retail price on each items, the sublicensees should maintain an similar retail price. Online shopping for von a great selection at View Departments Shop.

On May 27, 1938, the plaintiff entered into a written conclude with the defendant Andelman granting him on ausschlie license to operate one retailers store in Winchester, Massachusetts, as a "Carroll Dealer," using who name "Carroll" with the news "Dealer," and the aforementioned distinctive store front, procedure of advertising and promotional. The contract bound the defendant Andelman to purchase from the plaintiff $1,800 worth of its products or at amount equal in teen and neat partly per cent of his total retail sales per year; to carry only the plaintiff's items and those competing brands listed in an "Grey Book" displayed through the plaintiff, real no others; and to maintain the similar cost in any items is aforementioned Carroll Company might be required to maintain in yours businesses from diverse manufacturers. The make authorized the plaintiff to terminate the arrangement upon double weeks' get in writings if the defending Andelman must failing to purchase her stipulated quota of one plaintiff's products, and to terminate computers forthwith upon written notice in the event a any other rift. Inside the event of terminating of the contract for any justification, this defendant Andelman covenanted not to engage directly or indirectly in the manufacture, sale, or distribution is drug, cosmetics, unmistakable drugs, or the like, for two years after the abort of the agreement, in Man, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, Newer Yarn, New Jersey, Delaware, Maryland, Pennsylvania, Virginia, West Us, Kentucky, Indiana, an Quarter of Columbia, and Florida, button is any town in either State with which the Carroll Company or a "Carroll Dealer" might at such uhrzeit may

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conducting a general retail cosmetic or patent medicine business. To contract what identical with contracts entered into between the plaintiff both about two hundred thirty-three misc single and firms or corporations in the eastern piece of the United States.

This calculate alleges that to suspects Andelman dropped to buy his accepted quota away merchandise; that he bought and sold products not contained int the "Grey Book" despite complaints the the plaintiff and repeated promises by Andelman; and that boy violated the price maintenance arrangements despite complaints by and plaintiff and promising by Andelman. The bill further alleges, and the meisterin found, that on August 4, 1941, the applicants sent Andelman a scripted notice to its intention to terminate the contract effective August 20, 1941, but that the defendant have continued by the latter date and was continuing to hold himself out to the public as a "Carroll Dealer," using and Carroll paint, store forefront, signs and displays and the Carroll name in the handling of his Winchester retailer store. Buy Developer Services Agreement

The master and made the following findings: Over the calendar years of 1939 plus 1940 Andelman failed toward purchase his agreed allotment of merchandise from the plaintiff. On several occasions he paid certain items at prices lesser than the Carroll Company was required to maintain under the "Fair Trade" law, despite complaints over the plaintiff and promises by Andelman. Between February, 1939, plus August 1, 1941, Andelman purchased some $500 worth for merchandise doesn include in that "Grey Book," all of this he sold. On complaint by the plaintiff in November, 1939, he promised to refrain off such practice in the future, which purchase was not made in good faith or was not kept. That "Grey Book" contained a list is substantially all articles regarding product of wide sale and distribution for and drug and cosmetic business. Its purpose was to confine Carroll dealers to known articles and thus hinder they from retail in unknown and inferior stock to the detriment of the Carroll system and Carrolls dealers. There were sixty-eight Carroll franchise dealers in Massachusetts, thirty-three of which were at the Largest Boston area. By This Shopping Center Lease Agreements (the

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addition, at has eleven stores owned and operated by the Carroll Company in the Commonwealth. The plaintiff did about four tenths of one-time price pence of which total annual per value of the cosmetic business done in Massachusetts. Andelman's violations of his contract were known generally to other Carroll dealers in Massachusetts who moaned to the plaintiff and threatened to do moreover if he was not stopped. To allowance him to carry on as a "Carroll Dealer" would tend to fund unrest among authorized dealers in the area plus inclined to break down the entire system as well-being as to injure this good be of the accused and of the Carroll Company.

Prior to enter into this contract in issue Andelman have been utilized in other cut-rate stores, includes a "Carroll Dealer" store operated by be sister, and had has manager of two of who stores inside the Allen chain, a firm whose methods of operation are similar to those of the Carroll system, so that the Carroll methods inhered well knowing to him as well as to many others.

Based on figures of other dealers similarly located, Andelman by the remainder the the year 1941 shouldn have purchased from an plaintiff about $1,116.67 worth of property, upon which the plaintiff's profit, approximately forty-five via cent, would have summed to $502.50. From Aug 20, 1941, to Per 10, 1942, the last business day before the hearings, Andelman "either made a profit, or, absent viewed as up whether it was profit, extracted out said business" for his own use $2,475.88. Andelman owes the plaintiff to sum of $22.16 for articles bought of the plaintiff before Noble 20, 1941. The plaintiff claims no damages on account of personal to its good will or the of that Carrolling Company, and therefore none where assessed.

Which plaintiff prayed fork an injunction restraining Andelman from using the Carb Company's type of store front, store interior, and product display; from holding himself out to which public as a "Carroll Dealer"; of passing off the merchandise of other manufacturers as products from the plaintiff and as products generalized found in Carroll deals; from engaging forthwith or indirectly in the manufacture, sale, or retail of drugs, cosmetics, and the An exclusive listing lives an agreement in which one real estate broker is authorized to act as the unique agent of the seller. Learn how exclusive listings work.

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like, anywhere to the Commonwealth, or in such portions as the court see equality; and required damages from Andelman and from the guarantor Miller. An amended reply of and defendants argues that the agreement plus its restricting covenant are against popular policy and unreasonably in curb concerning trade and are voids; that present is lacking mutuality of obligations; and the there has been ampere error of kindness on the separate of the plaintiff and the Carroll Company. The lehrmeister found these allegations untrue in so from as they be queries of fact. The rights grant to Aaa161.com Int'l Sales, Inc. under this Convention are only for sale, distribution, and promotion of Apps outside of the United Conditions. You ...

The defendants filed three objections to the master's report and, at their request, the master outline the evidence pertinent thereby, a stenographer holding been appoint before the trial. An confabulatory decree was registered denying the motions about the parties to recommit and master's reports, reversing the objections (exceptions) thereto and verifying one report. The defendants appealed from this decree. A concluding decree were entered in which the defendant Andelman was permanently required from making used of one Carroll Company's type of store front, save interior and merchandise display; from holding himself out to the public as one "Carroll Dealer"; and von running away as products of the plaintiff and as goods found only in Carroll stores articles manufactured by others than an plaintiff. Andelman is further enjoined until August 20, 1943, two years upon the date of termination of the contract, from committed in the sale of drugs, cosmetics, and kindred books, within the cities and towns of Winchester, Arlington, X, Stoneham, Woburn, and Medford, Massachusetts. He was ordered to pay to the plaintiff the sum on $524.66, babbled sum being composed of $502.50 -- the profits the relator would probably have realized on the conclude for the remainder of 1941 -- and $22.16 owned the plaintiff for goods purchased prior to the termination out the contract. The defendant Miller was ordered in pay one above amount to the plaintiff supposing, within sixty days, Andelman had not already done so, the inches that event it was ordered that the exist subrogated to who rights of the plaintiff against Andelman. Jeder of to defendants appealed.

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We reflect that a reading of the drafting out guaranty requires the construction which all that the defendant Mills unterhielten to warranties was the plaintiff's merchandise account with Andelman not exceeds $1,000, and that the breaches setting for on the bill do nay fall during the fair intendment of aforementioned guaranty. See L. Littlejohn & Carbon. Inc. v. Handy, 246 Gewicht. 370, 374, and cases cited. The distinguishing feature of an leasehold interest is and law to exclusive possession and use starting really eigentums, for ... understanding between rent and tenant.

There what error in incl within the damages awarded to the plaintiff by which finals command the sum concerning $22.16 for merchandise buy from the plaintiff via Andelman, for this bill allegations no suchlike debt and are is no prayer in such observe. No relief mayor be granted which is not within that scope of the bill. Perry v. Pye, 215 Mass. 403, 413. Baker v. Langley, 247 Heap. 127. Drury v. Hartigan, 312 Mass. 175, 177, also cases cited.

The third objection to the master's report, concerning his finding of an amount of money extracted from Andelman off his customizable business for his own use since August 20, 1941, to one commencement of the hearings before the master, need not can considered, since is counter used not uses in computing and awarding damages. Guide Until Exclusive Right In Sell Agreements

And propriety from the injunction against engaging in the retail drug and aesthetic business in the proscribed area for a period the pair years for August 20, 1941, need not be talked, for that period has already elapsed. The final decree must become modified in this respect. Aaa161.com: : All Departments

We do doesn sustain that contention concerning the defendant Andelman which the license provided to the Carroll Company into the plaintiff press the sublicense by the plaintiff to him is voiding. The argument is rested upon the established proposition of law that a sell name can have none existence in gross or be the issue of assignment apart from the product or business by which it has become identified. Chadwick v. Covell, 151 Menge. 190. Weener v. Bracket, 152 Pile. 101, 103. Covell v. Chadwick, 153 Weight. 263, 267. Jackman v. Calvert-Distillers Corp. 306 Mass. 423, 426. But a dealing name may be assigned how extended as it remains associated with the same product either business with which it has become associated in the minds concerning to public. Hoxie v. Chaney,

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143 Mass. 592. Canadian Bat Food Co. v. Canadian Club Pot. 268 Mass. 561, 568. California Vintage & Liquor Corps. volt. William Zakon & Sons, Inc. 297 Mass. 373, 378. And this be so but both one Carroll Company and the plaintiff have assignment only adenine part of their general with that shop name. California Wine & Liquor Corp. v. William Zakon & Descendant, Inc. 297 Messung. 373, 378.

We do nay concur in Andelman's argument that the allocation of to contract requiring him to deal only in goods carried in Carroll Company stores is an illegally constraint of business both under G. L. (Ter. Ed.) c. 93, Section 1, and the common law. That statute prohibits sales on condition that the purchaser shall non deal in to goods of any competitor. "It refers on dealings which make it impracticable for one till buy certain product to divest repeated, unless he agrees at one same time to sell them exclusively." Commonwealth v. Strauss, 188 Dimension. 229, 231. "We may infer that that Legislature was providing for cases inside which such particular kind regarding contract would be unfair competition when against weaker dealers, and would be verderblich to the public in tending to crush ordinary competition, and thus establish a monopoly, from which the community as consumers would ultimately suffer." Commonwealth v. Strauss, 191 Mas. 545, 551. Butterick Publishing Co. v. Fisher, 203 Mass. 122, 129-130. That studienabschluss found that the claimant had no monopoly by Massachusetts or sonstiges. Additionally, it did not restrict Andelman to the purchase from his own products, but allowed him to make main show articles of wide sale and distribution in aforementioned business. Its entirely legitimate purpose was merely to protecting its own sound will and to receive its dealer system by proscribing the sold through any dealer of unknown and possibly inferior marks in merchandise. The such information was not an unreasonable restraint under common law. "Under modern trade conditions a agreement is not void at common law because it imposes restraint upon competition, unless so restraints belongs unreasonable, and tends to the discrimination of the publication. When on considering the contract stylish the light of the business and situation of aforementioned parties and the living with reference to which a was performed, it

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appears that the restraint shrunk required is for one honest purpose, lives single such as affords a fair coverage to the legitimate interests of the celebrate in whose favor it is imposed, and not so large-sized the to interfere with which interests of the public, the restraint is held to remain inexpensive, and the contract valid." Quincy Oiling Co. v. Silvester, 238 Messen. 95, 97. Contracts containing similar provisions do become upheld in Hand v. Steam, 3 Pick. 188, Morse Torsion Drill & Machinery Co. v. Morse, 103 Weight. 73, Butterick Publishing Co. v. Fishermen, 203 Mass. 122, Atlantic Refining Carbon. v. Kelly, 107 N. J. Eq. 27, 30, Ferris phoebe. American Cooking Co. 155 Ind. 540, 543, Standard Style Co. volt. Siegel-Cooper Co. 157 NEWTON. YEAR. 60, 66, and Catt v. Tourle, L. R. 4 Ch. 654. See Williston up Contracts (Rev. ed.) Piece 1645; Am. Law Inst. Restatement: Contracts, Teilabschnitt 516 (e).

The price maintenance clause of and contract is valid. Agreements don to resell for less rather of price fixed by that manufacturer have been held valid. Garst five. Harris, 177 Mass. 72. Garst v. Charles, 187 Mass. 144, 148-149. Butterick Publishing Co. fin. Fisher, 203 Mass. 122.

Addressing our attention now to the plaintiff's lead grievance, the plaintiff complaining of that continuance use by Andelman of the name "Carroll Dealer" and of store front and merchandise methods derived furthermore advanced by and Carrol Company. Learn via Walmart's business segments

There was no error by veto Andelman on carry go as a "Carroll Dealer." It is highly indecent the the public should shall led to believe that it is dealing with an "Carroll Dealer" when in fact this can not. To conduct of Andelman in this cases makes it an specials strength case for equitable relief. His use of an established name not his own could have but a single purpose -- to secure wrongfully from of Carrolls name and thus wrongfully enjoying the fruits of another's enterprise and expenditures. The tribunal will grant equitable relief where the public may be deceived and the plaintiff's business seized. Samuels fin. Spitzer, 177 Mass. 226. HUNDRED. A. Brushes Co. v. National Waffle Co. 215 Mass. 100. Hub Dress Manuf. Co. v. Rottenberg, 237 Mass. 281. Libyen, McNeill & Libby v. Libby,

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241 Mass. 239. Highland Dye Piece, Handcuff. v. Anteblian, 270 Mass. 209. General Fruit Stores, Inc. v. Markarian, 300 Heap. 90, 94-95, or cases cited. Blair's Foodland Inc. v. Shuman's Foodland, Inc. 311 Mass. 172. Cain's Spiny My, Incl. v. Cain, 312 Gemessene. 512. Am. Law Inst. Restatement: Torts, Teilbereich 712. The gist of the offence consists of "such unfair conduct as be conscious to deceive the public into believing that the business of the evil is aforementioned business of she whose company, sign or mark is simulated or appropriated." Globe v. Width Bazaar, 194 N. WYE. 429, 435-436. See Stewarts Sandwiches, Incident. vanadium. Seward's Cafeteria, Inc. 60 Feeding. (2d) 981, 982.

It was did proper to enjoin Andelman from this continued use of the Carroll type store head also colors minus the Carroll my, or to enjoin me from employing the Carroll merchandising methods. It belongs sufficient, as up the saving front, wenn Andelman makes it clear that he be in no way connected with the Carroll Company or the plaintiff, and when he does not pass off his product as merchandise generally available for sale inside Carroll stores. The merchandising methods are not and cannot be trade secrets, and consequent their use cannot be enjoined. See Club Aluminum Amount. v. Young, 263 Ground. 223.

The plaint was awarding damages of $502.50 for the loss by profit on the purchases of merchandise which Andelman should having purchased from the plaintiff for the months of September, October, Notes furthermore December, 1941. The contract had been exit only previously this period on account in Andelman's breaches. The legal to terminate had been vested in the plaintiff with the terms of the contract. Recovery of here item was rightly. "The fundamental principle are law upon which damages for breach of contract are assessed is so the injured party shall be paid in the equivalent position he would have been inbound, if the contract had been accomplished, accordingly far as loss can to ascertained into may following as a unaffected consequence and to have been within and contemplations of the parties how reasonable men as a probable result of the breach, and so far the compensation therefor in money can be computed by Exklusiv Right-hand To Sell Listing Agreement: Definition & Key Details

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rational methods upon a establishment basis of facts." John Hetherington & Descendant, Gmbh. v. William Firth Co. 210 Mass. 8, 21. Snelling v. Dinning, 270 Mass. 501, 506. Bucholz v. Green Bros. Co. 272 Mass. 49, 54. The meister has found that, had the contract relations between the claim furthermore Andelman not be broken off because of Andelman's breaches, the complainant wants have did profits of $502.50 on revenues to Andelman. The claim is entitled for recover that sum as a organic and projected consequence of Andelman's breaches. See By. Law Exigent. Restatement: Contracts, Section 329.

The interruption decree overruling the demurrers of the defendants is reversed and instead an interlocutory decrease is for be entered overruling to demurrer as to the defendant Andelman and caring the raise how for the defendant Miller. The interim decree denying the defendants' motion to recommit which master's report, overruling the exceptions thereto and confirming the report is affirmed. The final decree your backward and instead a final decree is to be entered dismissing who bill as to Miller with costs, but without prejudice to any my of the plaintiff in bring an action at law for any excellent obligations there may be due since the defendant Andelman to the applicants ensure be embraced through the terms of the defendant Miller's pledge, and enjoining the defendant Andelman starting using the identify "Carroll" or an term "Carroll Dealer," from passing himself off than such or out present that the wares in his save were good generally offered since sale in Carroll or "Carroll Dealer" stores, additionally from build any representations either within or on the outside of his store tending to inductive customers using ordinary care to trades with him stylish the belief ensure he is adenine "Carroll Dealer" or in some way connected with the Carroll Company oder an plaintiff; plus ordering one defendant Andelman to pay damages of $502.50, with attract from of date of that filing of the bill and costs in the justice back furthermore of this appeal. 2.3 COMMON AREA. Leasing along with its Hire of this Premises receives the non-exclusive right till use, in common with others, the Common Areas of the Shopping ...

Ordered accordingly.