Lanahan v. Lanahan

Burke, J., delivered the opinion of the Court. This appeal was taken from an order of the Circuit Court No. 2 of Baltimore City, passed December 1st, 1908, in the case of Samuel J. Lanahan and Thomas M. Lanahan, Administrators of Charles M. Lanahan, deceased, and Samuel J. Lanahan, in his own right v. William Lanahan, refusing the petition of Adelaide Brennan and George R. Willis, ad ¹⁷⁸ ministrators d. b. n. of Charles M. Lanahan, deceased, for leave to file -a hill of review to review the decree passed in said cause on the 27th day of May, 1902. The Court directed a copy of the petition to be served upon William Lanahan, the defendant named therein, who appeared and demurred to the petition. The Court sustained the demurrer and dismissed the petition, and adjudged the petitioners to pay the costs.

The petition is brought upon what is alleged to be new matter. The personal estate of Charles M. Lanahan, deceased, and all persons beneficially interested therein were represented in that cause by his administrators, and' the Safe Deposit and Trust Co. of Baltimore, as trustee of his adult children and as guardian of his minor children, was consulted as to the terms of the decree and recommended that it be passed. The Court will not grant leave to file a bill of review, “without an affidavit, that the new matter could not be produced, or used-by the party claiming the benefit of it in the original cause. The affidavit must also state the nature of the new matter, in order that the Court may exercise its judgment upon its relevancy and materiality.” Story's Equity, Pl. 2nd Ed., secs. 412-413.

In Whelen v. Cook, 29 Md. 7 , it is said: “A Bill of Review can be brought only for error in law appearing on the face of the proceeding or upon the discovery of new matter pressing upon the decree subsequent to the period when it could have been used; and in such case there is a qualification of equal importance with the rule itself, that the matter must not only be new, but such as the party by the use of reasonable diligence could not have known, for if there be any laches or negligence it destroys the title to relief. The Courts have uniformily and rigorously adhered to this qualification, deeming it better that individual injury should be inflicted in particular cases, than that rules established to prevent general mischief, should be broken down.” The record shows that in 1860 William Lanahan, the elder, was engaged in the wholesale liquor business in Baltimore City. He originated a certain trade mark which consisted ¹⁷⁹ of the arbitrary word “Hunter,” and this trade mark was used as a means of identifying the whiskey manufactured by him. In 1864 his son, Samuel J. Lanahan, was admitted as a partner in the business.

The partnership then formed was known as William Lanahan & Son, and the firm name has continued from that time until the present. The partnership formed in 1864 was continued until 1868, when William Lanahan, Senior, died, and the business was continued by Samuel J. Lanahan alone until 1875, when his -brother William Lanahan, was admitted to a-partnership in the firm. In 1878 another brother, Charles 1VL Lanahan, was admitted ,as a partner. Ever since the formation of the firm of William Lanahan and Son the trade mark “Hunter,” which was first adopted and used by William Lanahan, the elder, has been in continuous use by the firm as a trade mark for its whiskey.

Eor some years there was very little bottling of" Hunter whiskey by William Lanahan, or the firm of William Lanahan and Son, -'but about the year 1882 the firm devised a label, which consisted of the words “Hunter Baltimore Rye Whiskey” in script type, and in addition for such label purposes adopted a symbol, or device of a man, or hunter on horse back, holding his hat in his hand, in the attitude of waving the' same, and these labels were supplied to the customers of the firm, who purchased the Hunter whiskey in bulk, and the names and addresses of the customers were printed below the hunter symbol on the label, the whole being enclosed in a gilt border or band. In 1894 the firm began to bottle and offer for sale in its bottled form to the purchasers, consumers and users of their whiskey a package of their Hunter whiskey which was put _up under a certain trade mark and label used for the purpose of identifying the bottles, or packages filled with whiskey personally bottled, is sued, and sold by it, which trade mark consisted of the arbitrary word “Hunter” displayed in white type on a black label, the figure of a huntsman mounted on horseback, holding his hat in his right hand and waving the same, contained in a white circle, and underneath the words “Baltimore Rye, ¹⁸⁰ Bottled by William Lanahan & Son, Baltimore,” in white characters. These trade marks of the firm were registered in the patent office in the Oity of Washington, and certificates of registration thereof were issued to the co-partnership of William Lanahan & Son. On the 31st day of January, 1901, an inventory of the assets of the co-partnership was taken, in which all the partners concurred, and in which Charles M. Lanahan actively participated.

This inventory was as follows: • ASSETS. Merchandise..........................$652,845.98 Cash................................. 135,591.54 Cash in hank.................... 88,007.41 Loans................................ 405,270.38 Notes for merchandise, etc............."507,923.20 Securities............................. 339,308.91 Beal estate........................... 7,858.20 Open accounts........................ 772,458.72 $2,909,264.34 LIABILITIES. S. J. Lanahan........................ $952,661.69 William Lanahan..................... 903,767.33 ’O. M. Lanahan....................... 1,017,683.98 • _ $2,874,113.00 Estate — H. W. Lanahan............... 22,456.72 Sundry accounts...................... 12,685.62 $2,909,264.34 One week after the taking of this inventory the co-partnership was dissolved by the death of Charles M. Lanahan. Samuel J. Lanahan and William Lanahan, the surviving partners, thereupon formed a new partnership under the firm name of William Lanahan & Son, and letters of administration upon the estate of Charles M. Lanahan, who had died intestate, were granted by the Orphans’ Court of Baltimore ¹⁸¹ City to Samuel J. Lanahan and Thomas M. Lanahan, the latter being an uncle of said deceased.

On the 27th day of May, 1902, by a decree of the Circuit Court N. 2 of Baltimore City, passed in the cause mentioned in the beginning of this opinion, it was adjudged, ordered and decreed that the proposed partnership adjustment and settlement set forth in the bill filed in that case be approved, and Samuel J. Lanahan and Thomas M. Lanahan, administrators of Charles M. Lanahan, deceased, were authorized and directed, upon receiving from the said Samuel J. Lanahan and William Lanahan, the surviving partners of said deceased, the sum of one hundred and thirty-eight thousand dollars to be paid as to two thousand dollars thereof in promissory notes of that amount of Oliver Beeder being one-third equal part of certain promissory notes of said Beeder amounting to the sum of six thousand dollars held by said partnership at the time of said Charles M. Lanahan’s death, and as to the residue or sum of one hundred and thirty-six thousand dollars in money, to assign and transfer to them, the said Samtiel J. Lanahan and William Lanahan, all the interest and undivided share of the said Charles M. Lanahan, deceased, and his personal representatives in all the assets, good will, trade marks, property, choses in action, demands and rights of every kind of the said partnership composed of Samuel J. Lanahan, William Lanahan, and Charles M. Lanahan, and trading under the name of William Lanahan and Son; with the exception only of certain real estate situated in the city of Chicago belonging to said partnership, and mentioned in said bill, and exclusive of the fee simple property in the city of Baltimore, known as No. 20 Light street, which was occupied by the firm as partnership property. And it was further adjudged and declai’ed that such payment of one hundred and thirty-eight thousand dollars so to be made by the said Samuel J. Lanahan and William Lanahan, willj in addition to the sum of one million, seventy-seven thousand, eight hundred and seventy-two dollars and thirty-nine cents, which has been heretofore paid by the said Samuel J. Lana ¹⁸² han and William Lanahan, surviving partners, to the said administrators of Charles M. Lanahan, deceased, he in full settlement, payment and satisfaction of all interest of the said Charles M. Lanahan and his personal representatives in the said partnership, its business, assets, property and rights of every hind, and of all claims of the said Charles M. Lanahan’s estate and personal representatives against the said Samuel J. Lanahan and William Lanahan in relation to or arising out of the said partnership or its business or the winding up and closing of the same with the exception of the real estate aforesaid. And it was further adjudged and declared that this decree shall and it does hereby complete the said transfer by the administrators to the surviving partners of all the share and interest of the said Charles M. Lanahan in the assets and property, business, good will and trade marh and other rights of said partnership and in all dioses in action, claims and demands of the said late firm or partnership of William Lanahan and Son as by this decree provided; and that the said Samuel J. Lanahan and William Lanahan by the passage of this decree assume and are hereby subjected to the entire obligation of all debts and liabilities of said late partnership. When the petition in this case was filed both the original administrators of the estate of Charles M. Lanahan were dead, Samuel J. Lanahan having died in January, 1908, and Thomas M. Lanahan on May lJth, 1908.

On the 2nd of April, 1908, Mr. George R Willis, as counsel for the widow and children of Charles M. Lanahan, wrote to the surviving administrator, that they desired to have the settlement made between the .administrators of the personal estate of Charles M. Lanahan and the firm of William Lanahan and Son, growing out of the dissolution caused.by the death of Charles, reviewed, and to have “certain errors and omissions” corrected in the valuation of the assets belonging to the firm at that time, and inquired of Mr. Lanahan if he would be willing, if requested by the widow and children of Charles M. Lanahan, to institute the necessary proceedings whereby the settlement might be reviewed, and the “errors ¹⁸³ and omissions corrected.” In replying to this letter on April 3rd, 1008, Mr. Lanahan stated that the settlement made between the administrators of Charles M. Lanahan, deceased, and the firm of William Lanahan and Son was made after full and careful investigation made by him, as one of the administrators, as to what the assets of that firm consisted, and as to their full value, and as to the value of the interest of the estate of Charles M. Lanahan therein, and as to all the rights of his estate against the surviving partners of the firm, with the full determination that his estate should receive full value for all its interest in the firm assets and full payment for all its claims against the surviving partners. He stated that in this investigation he had all the necessary i facts and information at his disposal; that he considered at that time, and that he considered at the time of writing to Mr. Willis that the estate of Charles M. Lanahan received full value in all its interest in the firm assets of .every kind and description, and was paid in full for all claims of his estate against the firm and the surviving partners thereof; that there were no errors or omissions in the valuation of the assets belonging to the firm at the time of the settlement, and'l that therefore he would decline to institute any proceedings to have the settlement reviewed. After the receipt of this letter, Mrs. Annie S, Lanahan, the widow of Charles M. Lanahan, filed a petition in the Orphans’ Court of Baltimore City in which she asked that Court to pass an order commanding Thomas M. Lanahan, surviving administrator of her deceased husband’s personal estate, to take the necessary proceedings to re-open the decree by which the partnership settlement had been made and approved. Thomas M. Lanahan answered this petition, and the allegations of the petition and answer will be presently'considered.

Before any further proceedings could be had in the Orphans’ Court upon said petition and answer Thomas M. Lanahan died. In the letter of Mr. Willis’ above referred to the claim is made that there were “errors and omissions” in the valuation ¹⁸⁴ of the interests of Oharles M. Lanahan in the co-partnership business, and in the petition of Mrs. Lanahan to the Orphans’ Court the errors and omissions which he claimed to exist and which he desired to have corrected are definitely and specifically pointed out, and how they were alleged to have occurred is stated. It is alleged that in the settlement of her deceased husband’s interest in the firm allowance was made only for the tangible assets of the firm, “and no allowance whatever was made for the good will thereof or any of the trade mark, brands or trade names possessed by said firm, and no mention whatever was made of the valuable brand, or trade-mark 'Hunter Eye,’ ” and she charged that the elimination of these elements of value was procured by fraud, and was done with the intent to cheat her and her children. Oharles M. Lanahan left surviving him a widow and five children, three of whom were adults.

The adult children executed deeds of trust to the Safe Deposit and Trust Company of Baltimore in which that company, as trustee, was given full power and authority to collect and compromise all claims and demands belonging to or growing out of the trust estate or any part thereof, and that company was also appointed and qualified as guardian of the minor children. The petition in this case is predicated upon the alleged fact that in the ascertainment of the interest of Oharles M. Lanahan in the firm of William Lanahan and Son, no allowance was made for the trade-mark, trade names, brands, and good-will of the firm. This allegation, upon which the whole case of the petitioners rest's, is repeated a number of times in the petition. This averment appears first in the tenth paragraph of the petition in which it is alleged that no- account was stated of the trade-marks and good-will, “and no allowance made therefor, and if any allowance was made it was of such amount as in no wise represented the true value thereofand in the twelfth paragraph it is aveired that “no true and accurate account was taken of the value of the