Motion Picture Herald (Nov-Dec 1934)

16 Better Theatres Section December 15, 1934 ducer had its films copyrighted that this tended to complete an unlawful monopoly. However, the court held otherwise, saying : "It is true that respondent's pictures are copyrighted and that one cannot use them except under lease or license, but by reason thereof no monopoly in the pictures has been created, and moreover the respondent's pictures are not indispensable to any exhibitor." COURTS ON UNFAIR COMPETITION UNFAIR COMPETITION ordinarily consists in the imitation by one person, for the purpose of deceiving the public, of the name, symbols, or devices employed by a business rival, thus falsely inducing the patronage of the public and thereby obtaining for himself the benefits properly belonging to his competitor. The rule of law is generally recognized that no one shall by imitation or unfair methods induce the public to patronize his business and thereby appropriate to himself the reputation which the other or competitor has acquired. CASE For illustration, in Schwannecke v. Genesee (247 N. W. 761, Flint, Mich.), it was disclosed that a corporation had for more than 27 years been engaged in a busi ness under the name of "Genesee." Another company adopted the name "Genesee" with other words thereafter. The original user filed suit and in holding the latter user liable, the court said : DECISION "The question here presented is whether the defendant by using the word 'Genesee' in its assumed name thereby became engaged in unfair competition with plaintiff. . . . It seems apparent that its purpose and design in the use of this name was to secure to itself a part of the business theretofore enjoyed by the plaintiff, and, in the language above quoted, 'they have no right, by imitative devices, to beguile the public into buying their wares under the impression they are buying those of their rivals.' " ACCORD AND SATISFACTION PROBABLY the most common source of litigation, involving payment, arises when a purchaser disputes a seller's account. Litigations of this character are legally classified as "Accord and Satisfaction." Accord is the legal expression used when the debtor offers to settle an old account under a new agreement. Acceptance of the offer by the creditor is Satisfaction. An important question presented to the court, in litigations involving accord and satisfaction is whether the account was disputed by the customer, and whether the creditor accepted the payment under circumstances which indicated that the debtor was making it in full payment. Numerous cases are on record disclosing that a theatre owner may file suit and collect the balance due on an undisputed account, although he accepts cash or a check with a notification from the debtor that the amount is being paid in full settlement. The same law is effective with respect to a receipt given by mistake for "full" payment, when a balance remains due. However, if the account is disputed a quite different situation arises. Acceptance of any payment by the theatre owner, who knows that the debtor intends that it shall be full payment, actually is legal full payment. For example, in a leading case it was shown that a theatre owner contended that he did not owe the amount shown on a seller's bill. Later the theatre owner sent approximately one-half of the full amount due on the account with an explanation that it was being paid to fully extinguish the debt. The creditor accepted the money and then filed suit to recover the balance. The court promptly held the theatre owner not liable for further payment. Therefore, it is quite apparent that when a claim is in dispute and the debtor sends the theatre owner a remittance stating that it is in full payment of the claim, and the latter accepts the remittance without objection, it is generally recognized that this constitutes a good accord and satisfaction and, therefore, cancels the debt. DISSOLUTION OF PARTNERSHIPS By M. MARVIN BERGER Member New York Bar ^ THE OUTLINE of partnership law, which has been the subject of my last two articles, is completed with a statement of how a partnership Is brought to an end. A partnership Is dissolved — First: By the expiration of the period of time for which it was formed. If the partnership continues as a going business after the end of the term for which It was fixed, or no definite term was originally agreed upon, the partnership continues at will of the partners and may be dissolved by any one of them at any time. Second: By mutual agreement among all the partners, regardless of whether or not the time for which a partnership was formed has expired. Third: By the withdrawal of any of the partners even though the term of the partnership has not expired. A partner wrongfully withdrawing, while he does not forfeit his Interest In the firm, becomes liable to his partners for any damage he may have caused them by his withdrawal. Fourth: By the death or bankruptcy of a partner. The following acts, while they do not of themselves dissolve a partnership, may be grounds for a dissolution: First: Misconduct of any partner affecting the firm business or credit, or breach by one or more partners of the agreement of partnership. Second: The sale by a partner to an outsider of his interest in the partnership. Such a sale will not entitle the outsider to participate in the partnership affairs, but will entitle him to receive the profits to which the selling partner would be entitled. The process of dissolution consists of winding up the business of the firm, selling Its assets, paying off the creditors, and dividing among the partners the profits and returning to them their Investments. Losses are shared In the same proportion as profits and are deducted from the Investments of the partners. Ordinarily a partnership Is dissolved by agreement among the partners as to the method of dissolution and as to the disposing of the firm property. However, should the partners disagree among themselves, the courts will step In and supervise the dissolution, and If necessary will order an accounting to determine the proportions In which profits, losses and investments of the partners should be distributed. The winding up of the affairs of a dissolved partnership Is usually left to one or more partners who are known as liquidating partners. They have the authority to continue to conduct the firm business insofar as It is reasonably necessary to do so for winding up the firm affairs. Ordinarily this does not Include the power to make new contracts or transact new business In behalf of the firm. As to all obligations of the firm made before dissolution, the Individual partners still remain liable for their payment, unless the creditors agree to discharge the individual partners and look for payment exclusively to the liquidating partner or to a person or persons continuing the business. It Is quite Important to know that even after dissolution of the firm, the partners are still bound by the transaction of any partner with a party who had extended credit to the firm before dissolution and had not been given actual notice of the dissolution. As to all others, with the exception of such old creditors, no notice of dissolution need be given except the publication of a notice in a newspaper of general circulation In the place where the partnership did business. Therefore to prevent a partner from binding the other members of the firm after dissolution, all creditors should be notified of the dissolution, or of the retirement of a partner.