The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1899-03-27
OPINIONS.
Use of Prefix " DR.. .
as a Trade Name.
TRUSTS TROUBLE.
Active Proceedings Proba-
BILE Under Sherman Law.

uhe New York supreme court, appel
late division. has just handed down an
opinion in the case of Tha DR.. David
Kennedy Corporation, against DR.. Ken
needy.
The defendant David Kennedy. reg
uIarly licensed physician, was engaged
in the preparation and sale of proprie-
tary medicines, the chief Of which was
known as ''Dr. Kennedy's Remedy and
pE David Kennedy's Favorite Rem
Sny.~ This medicine was extensively
advertised and patrons were notified to
address communications to Or. David
Kennedy, Rondout. n. " and "Dr. D.
Kennedy, Rondout. N. Y" The business
hecame very large and profitable one.
ana IN course Of time a corporation was
organized to carry IL on. The CORPORA
ton purchased the business from de-
PENDANT, and he was made president.
BY the agreement of sale there was
transferred to the corpora ton 1.-THE
good Will of the business of DR.. David
Kennedy now carried on by me at Ron
dout, y, Y. with the sole ard absolute
Il.
David Kennedy Of Rondout. N. " or
'Dr. d. Kennedy of Rondout, N. " in
connection with the manufacture of
the proprietary medicines hereby gran
ted and sold by me to the said cor
poration.''
After the transfer of the business to
the corporation, il was carried on as
before for a number of years, the de-
PENDANT remaining at the head of the
enterprise. The large number of let
tiers which were received addressed
"D1. David Kennedy. Rondout, N. Y"
and DR.. d. Kennedy Rondout, N. Y,
were delivered to and opened by the
corporation. BY and by the defendant
was deposed from the presidency of the
corporation, and his relations there
with ceased to be pleasant. He opened
an office, and re-entered the practice
OF his profession in the same city where
the business of the corporation was
conducted The defendant hired a box
at the post office and directed the post
master to put all letters addressed Or
David Kennedy, Rondout, n. Y" and
DIR. d. Kennedy, Rondout. N. Y"
therein. He took these letters, opened
them, and such as were for the plant
in, he sent to it through the post Of
nee. 1t is the taking and opening of
these letters. and the delay in their re-
ceipt occasioned thereby, of which
plaintiff complains. The plaintiff prays
for Judgment that the plaintiff has the
sole, only, and absolute right to use
the name or address DR. David Ken
NEEDY, Rondout N. " and DIR. D.
Kennedy, Rondout N. " as a form
Of address to it, and that the plaintiff
has a right to first receive and open
all letters and other mail matter so ad-
dressed and received at the post Office
at Kingston and at Rondout station.
and that the defendant be enjoined
FRsOTp fQIy 49,
post offices any letters or other mail
matter addressed or directed DIR. Da-
rld Kennedy, Rondout, N. " or DIR.
d. Kennedy, Rondout N. " or from
opening the same, or in any manner
interfering herewith.
The court say: "The evidence shows
that much the greater part OF the
numerous letters received addressed
DR.. David Kennedy, Rondout. n. Y
or Dr. ID. Kennedy, Rondout, N. "
are letters lin connection with the man.
ufacture of the proprietary medicines
which, with the entire business connect
ed herewith and the good will the de-
PENDANT for valuable consideration,
sold to the plaintiff.
After quoting the clause above quoted
from the agreement between the parties
transferring the use Of the name. the
court continues: "The contract, in case
OF doubt, must be construed most favor
striker, 142 n. Y. $50. The intention of
the parties, as found in the contract
construed with reference to the facts
present to the mind of both parties in
making it-must govern. Clark VS.. De-
voc 124 N. Y. 120. If doubt still remains.
then the weight may be given to the
practical construction given to the con-
tract by the parties themselves during
the seven years during which they
worked tremendously together under if. |
Such practical construction bv both
na1tics, where one party has invested
hiss money or so maraged his business
an reliance upon st that to reverse or
change it would be to his prejudice,
may-as we think it would in this case
II 1t were needed-amount to an es-
toppel. Trustees VS.. Smith, lis n. Y. |
6Sl.'
IAN we need 10 say is that the de-
PENDANT must observe the terms of the |
contract in letter and spirit He cannot |
IN any degree pare them down. He has
been paid for full observance and he |
cannot retain full pay and return scant
performance.
The evidence shows that for seven |
years after such bill of sale, all letters |
so addressed were received by the plain |
tiff from the postoffice: that since Feb |
ruary, 1898, the defendant, claiming the |
right TO do so, Notwithstanding the pro-
test of the plaintiff and it's proper de- |
nand TO the contrary, has first received |
the letter thus addressed, and retained
such OF them as he deemed proper, and |
then sent the others 10 the plaintiff |
Thus, 1t appears-and other evidence is
10 the same effect-that the plaintiff |
is hindered and restricted by the act
Of the defendant I'm the enjoyment of
its sole and absolute and only right to
use the names Of DR. David Kennedy.
Rondout, y. " or DR. D. Kennedy,
Rondout n. " in connection with the
manufacture Of the proprietary medl-
cines, and also In the FUN enjoyment Of
the good win Of the business of Or.
David Kennedy specified in the bill OF
sale. Among the letters thus addressed
are some which in no way concern the