be seen, is much more liberal with respect of conveyances to the firm in the firm name. 22 The Uniform Partnership Act permits conveyances both by and to the firm in the firm name.23 Unless authorized by statute, actions cannot be maintained either by or against the partnership in the firm name, but must be brought in the individual names of the partners.24 § 124. Of the firm name as property.-"The name by which a firm is known," says Mr. Justice Lindley,25 "is not of itself the property of the firm, and, speaking generally, there is nothing at common law to prevent persons from carrying on business in partnership under any name they please." Notwithstanding this, however, it is clear that the firm name is a thing of value, which may be made the subject of sale or assignment. It is also a thing which the law will protect. Thus Mr. Justice Lindley continues: "One firm is not at liberty to mislead the public by using a name similar to the name of another firm so as to pass off themselves or their goods for that other or for the goods state of Minnesota," is legally sufficient as a mortgage to S. W. Farnham and J. A. Lovejoy, shown to have been the members of a firm engaged in business in that county under that name. Menage v. Burke (1890), 43 Minn. 211, 45 N. W. 155, 19 Am. St. R. 235. See, also, Townshend V. Goodfellow (1889), 40 Minn. 312, 41 N. W. 1056, 3 L. R. A. 739, 12 Am. St. R. 736; Kelley v. Bourne (1887), 15 Ore. 476, 16 Pac. 40. To same effect in case of deed: Sherry v. Gilmore (1883), 58 Wis. 324, 17 N. W. 252; Cole v. Mette (1898), 65 Ark. 503, 47 S. W. 407, 67 Am. St. R. 945, Mechem's Cas. 801. Many other cases will be found cited, post, § 153. 22 See post, § 155. 23 See sec. 10. 24 Statutes in many states permit actions in the firm name under various circumstances: sometimes gener ally; sometimes where the partner- In the absence of such a statute, the action must be in the individual names of the partners. See Johnson v. First Nat. Bank (1906), 145 Ala. 378, 40 So. 78; Pollock v. Dunning (1876), 54 Ind. 115; Smith v. Canfield (1860), 8 Mich. 493; Heath v. Morgan (1895), 117 N. Car. 504, 23 S. E. 489. 25 Lindley on Partnership (Ewell's 2d Am. ed.), p. 114, 7th ed., p. 132. of that other. Moreover, an established firm can prevent a company (corporation) from registering under the name of the firm." But the rule that one firm may not adopt the same name as another firm is subject to the qualification that a person or a number of persons, who have not limited their right by contract, cannot be prevented from using his or their own name, even though it be that of a former firm in the same business, and even though its use may cause some incidental inconvenience or damage to the former firm,26 provided it is done in good faith and with no attempt to mislead the public as to the identity.27 On the other hand, it is equally well settled that one will not be permitted, merely under the pretext of using his own name, to practically and purposely appropriate the business or good-will of another.28 Ordinary family names may not be exclusively appropriated as trade marks.29 § 125. Of the right to the firm name upon dissolution.-The firm name, as has been seen, may be one of two kinds,—it may be a purely impersonal or fictitious name, like "The Chicago Hardware Co.," or it may be a personal one, made up in whole or in part of the individual names of the partners, like "Smith & Jones" or "John W. Smith & Co.," and some difference in legal consequences follows the distinction: 26 See Williams V. Farrand (1891), 88 Mich. 473, 50 N. W. 446, 14 L. R. A. 161, Mechem's Cas. 222, Burd. Cas. 588, Gilm. Cas. 177; Russia Cement Co. V. Le Page (1888), 147 Mass. 206, 17 N. E. 304, 9 Am. St. R. 685; Meneely v. Meneely (1875), 62 N. Y. 427, 20 Am. R. 489; Rogers v. Rogers (1885), 53 Conn. 121, 55 Am. R. 78; Howe Scale Co. v. Wyckoff, Seamans & Benedict (1904), 198 U. S. 118, 25 S. Ct. 609, 49 L. ed. 972. 27 Where such an attempt appears, the use may be enjoined. Bininger v. Clark (1870), 60 Barb. (N. Y.) 113. 28 See Robinson v. Storm (1899), 103 Tenn. 40, 52 S. W. 880; Stuart v. Stewart Co. (1899), 33 C. C. A. 480, 91 Fed. 243; Higgins Co. v. Higgins Soap Co. (1895), 144 N. Y. 462, 39 N. E. 490, 43 Am. St. R. 769, 27 L. R. A. 42; Lamb KnitGoods Co. v. Lamb Glove & Mitten Co. (1899), 120 Mich. 159, 78 N. W. 1072, 44 L. R. A. 841; Pillsbury v. Pillsbury-Washburn Co. (1894), 12 C. C. A. 432, 64 Fed. 841; Singer Mfg. Co. v. June Mfg. Co. (1895), 163 U. S. 169, 16 S. Ct. 1002, 41 L. ed. 118. 29 See Howe Scale Co. v. Wyckoff, Seamans & Benedict (1904), 198 U. S. 118, 25 S. Ct. 609, 49 L ed. 972. 1. Upon the dissolution of the partnership by act of parties or by mere lapse of time, neither partner buying out the other, either would have the right to go into business for himself and either one might usually adopt the old firm name if it were an impersonal one which could be used without leading the public to believe that the old firm still continued; but neither would have the right to use the old firm name including the individual name of any partner who did not continue with him where to do so would involve the latter in liability.30 Neither would he have the right, where his former partner also continued in business, to announce himself as the "successor to" the old firm, though either might designate himself as "formerly of" the old firm; but he must do nothing to deceive the public, such as putting his own name and the "formerly of" in very small letters, and the old firm name in very large letters.31 The Uniform Partnership Act has a provision which will be found in the notes,32 § 126. -2. Upon the termination of a partnership by death, it has been held that the survivor has the right to continue the use of the old name, whether personal or impersonal; but the true rule seems to be that the name, if impersonal and 30 Apparently in such a case not only may either one use the old name if he is the only one who continues business; but, if more than one of the former partners continue business, each may use it. Neither one has the exclusive right to appropriate that which belongs to one as much as to the other. See Burchell v. Wilde [1900], 1 Ch. 551; Townsend v. Jarman [1900], 2 Ch. 698; Dyer v. Shove (1897), 20 R. I. 259, 38 Atl. 498, Burd. Cas. 605. 31 See Hookham V. Pottage (1872), L. R. 8 Ch. App. 91; Smith v. Cooper (1877), 5 Abb. New Cas. (N. Y.) 274; Morgan v. Schuyler (1880), 79 N. Y. 490, 35 Am. Rep. 33 of value, is a partnership asset, and must be dealt with as such,34 subject, of course, to the right of the surviving partner to start a new business in his own name. 3. If one partner buys out the other for the purpose of continuing the business, but nothing is expressly agreed upon in reference to the name, the sale by one of all his interest in the business, and a fortiori if the good-will be expressly included, gives to the continuing partner the exclusive right to continue the use of the old firm name if it be a fictitious one, but not if it be a purely personal one containing the name of the retiring partner, except to the extent that the personal name has been made a trade name or a trade-mark of the business.35 The retiring partner in such a case may go into business in his own name, but he must not use even his own name in such a manner as to mislead the public into believing that he is the old firm.36 34 See Fenn v. Bolles (1858), 7 Abb. Pr. (N. Y.) 202. Under a statute providing for the recording of firm names and disclosing who are the partners under a given name, a surviving partner runs no risk of liability where a purchaser of the old firm name continues the business in that name, even though it includes the name of the surviving partner. Slater v. Slater (1903), 175 N. Y. 143, 67 N. E. 224, 96 Am. St. R. 605, 61 L. R. A. 796, Mechem's Cas. 857. Otherwise that risk might make improper a sale of a personal firm name whose use might involve him. The heirs or the estate of the deceased partner on the other hand, cannot ordinarily be made liable merely by the continuance of the business in the old name, even though it includes the name of the deceased partner. The constructive notice of the death prevents that. See Webster V. Webster (1791), 3 Swanst. 492, 36 Eng. Reprint 949; Price v. Mathews (1859), 14 La. Ann. 11; Maryland Nat. 35 See Thynne v. Shove (1890), 45 Ch. Div. 577; Levy v. Walker (1879), 10 Ch. Div. 436. 36 See Williams V. Farrand (1891), 88 Mich. 473, 50 N. W. 446, 14 L. R. A. 161, Mechem's Cas. 222, Burd. Cas. 588, Gilm. Cas. 177; Vonderbank v. Schmidt (1892), 44 La. Ann. 264, 10 So. 616, 32 Am. St. R. 336, 15 L. R. A. 462 and note; Brass and Iron Works Co. v. Payne (1893), 50 Ohio St. 115, 33 N. E. 88, 19 L. R. A. 82; Myers v. Kalamazoo Buggy Co. (1884), 54 Mich. 215, 19 N. W. 961, 20 id. 545, 52 Am. Rep. 811; Snyder Manufacturing Co. v. Snyder (1896), 54 Ohio St. 86, 43 N. E. 325, Mechem's Cas. 240; Rowell v. Rowell (1904), 122 Wis. 1, 99 N. W. 473. As to the use of individual names as trademarks, see Fish Bros. Wagon Co. v. Fish (1892), 82 Wis. 546, 52 N. W. 545, 4. The retiring partner may, however, by express agreement invest the continuing partner with the right to continue the former firm name, even though it is a purely personal one; and the retiring partner may, in the same manner, limit his own right to resume business or to use or permit to be used his own name in connection with a new business to compete with the old.37 5. Where the firm business and good-will are sold to a third person, whether voluntarily or as the result of some legal proceeding, the purchaser will, in the case of manufacturing and trading partnerships at least, acquire the right to such use of impersonal firm names as can be made without involving the former partners in personal liability for the debts of the new business.38 There is less risk of such a liability where the sale is made on legal process involving publicity of the fact than where it is the result of private negotiation. The effect of the sale of the good-will upon the right to use the name is considered more fully in a later section.39 III. OF THE GOOD-WILL. § 127. What is meant by the good-will.-What is known as the "good-will" of the business may properly be considered 33 Am. St. R. 72, 16 L. R. A. 453; Marshall v. Pinkham (1881), 52 Wis. 585, 9 N. W. 615, 38 Am. Rep. 756; Russia Cement Co. v. Le Page (1888), 147 Mass. 206, 17 N. E. 304, 9 Am. St. R. 685; Shaver v. Shaver (1880), 54 Iowa 208, 37 Am. Rep. 194, 6 N. W. 188. "The defendant is not deprived of the right to use his own name in connection with conduct of his business simply from the fact that his surname is a portion of the trademark used by the copartnership of which he was formerly a member, and whose business has been continued by plaintiff." White V. Trowbridge (1906), 216 Pa. 11, 64 Atl. 862. 37 See Grow v. Seligman (1882), 47 Mich. 607, 41 Am. Rep. 737; Frazer v. Frazer Lubricator Co. (1887), 121 Ill. 147, 13 N. E. 639, 2 Am. St. R. 73; Symonds v. Jones (1890), 82 Me. 302, 19 Atl. 820, 17 Am. St. R. 485, 8 L. R. A. 570; Le Page Co. v. Russia Cement Co. (1892), 51 Fed. 941, 17 L. R. A. 354, 5 U. S. App. 112. 38 See Snyder Mfg. Co. v. Snyder (1896), 54 Ohio St. 86, 43 N. E. 325, 31 L. R. A. 657, Mechem's Cas. 240; Twin City Brief Printing Co. v. Review Pub. Co. (1918), 139 Minn. 358, 166 N. W. 413, L. R. A. 1918 D, 154. 39 See post, § 130. |