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Rival Claims to Berna's Name.

30th July 1914, Page 11
30th July 1914
Page 11
Page 12
Page 11, 30th July 1914 — Rival Claims to Berna's Name.
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Twe important consolidated actions to procure ittjunctions and recover possession of books and. documents and obtain damages were commenced before Mr. Justice Sargent, in the Chaticery Division of the High Court, on Tuesday, continued on IVednesday and adjourned to Thursday, last week. A settlement between the parties was effected on Friday. The plaintiffs in both instances Were the Britielt "13erna " Motor Lorries, Ltd., of Avonmore Road, West Kensington. The rlefeedants in the first case were John YEIMItild and George Tyl roll Rance, who were formerly in the employ of the defendants. and in the second action the &Lachine., were John 1 al tveod and Co., Ltd., of Fulham ; " Berne " Cummeesaial Motors, Ltd., of 3, Lombard Street, London, E.C. ; and Motorwagetilabrik " Berne" A.G., of Olten, Switzerland.

Mr. Menai, K.C., and Mr. Charles Church. instructed by 1%lessrs. H Dade and Co., soliciture, 14, Queen Victoria Street, v ere counsel for the plaintiffs, and Mr. Mark Router, K.C., and Mr. Stamp, instructed by Messrs. Myth., Duttoe, Hartley and Myth, solicitors, represented the defendants.

The Plaintiffs' Case.

The greater part of Wednesday was occupied in the opening of the plaintiff company's case by Mr. Martelli, from whose Etatement it appeared that in the firet-named action the plaintiffs not only sought a perpetual injunction to restrain the deleudants, Yarwood and Ranee, from imparting information of their business to other persons, but also asked for the delivery up of certain books end docements, and they further elaimed damages. The defendants Yarwood and 114111Ce joined the plaintiff company when they started business in January, 1913, and continued with them until the latter part of July, when they left of their own accord, giving proper notice. During the time Messrs. Yarwood and Rance were eith the plaintiffs they enjoyed the full trust and confidence. of their employers, had full access to all books, and were in personal communication with plaintiffs' customers in relation to the eale of their motor lorries and motor vehicles. Plaintiffs, however, allege that these two defendants, some time previous to July, 1913, and whilst in their employ, concocted a scheme of firming a rival company to carry on business in competition with the plaintiffs. In furtherance of such scheme and in breach of the implied term of employment with the plaintiffs, the defendants, Messrs. Yarwood and Ranee, whilst negotiating with a Swiss motor manufacturing company, known as Ibitorwagenfabrik Berne A.G., concerning the husiness of the plaintiffs induced that company, who were under contract to deliver motor chassis known as " Berne," motor lorries in Great Britain solely to the plaintiffs, to cease doing is and in future to deliver to a company about to be formed by defendants and constitute that company their sole agents in Great Britain for the sale of commercial motors or lorries distinguished by the tame of "Berne." On the 30th July, 1913. defendants, in furtherance of their scheme, registered a private company, known as John Yarwood and Co., Ltd., with a nominal capital of 22000, divided into 2000 ordinary shares of .£1 each, and they became two of the directors, the other director being a son of John Yarwood. Since the formation of John Yarwood and Co. Ltd., the defendants had, the plaintiffs alleged, wrongfully used information acquired whilet in the plaintiff company's employment for the purpose of obtaining orders for muter vehicles from various companies NV110 were on plaintiffs' books a.3 prospective buyers. The defendants had also wrongfully used this information gained when in Lho plaintiffs' employ to obtain from the Swiss company " Berne" motor lorries for sale in this country, and, further, for the appointment of John Yarwood and Co., led., as the solo agents for the Swiss company for the sale in this country of the " Berne" motor lorries. With regard to the second melee against the three companies it seemed, from Mr. Martelli's arguments, that on the 13th December, 1906, a company known as "Barna," Motors, Ltd., was registered with the object of acquiring from a Swiss company, known as Motorwerke " Berne" Aktiengesellschaft. which for some time had carried on business at Olten, in Switzerland, as motor manufacturers, the goodwill, property and assets of every description of the company. To meet the growing requirements of "Berne" Motors, Ltd., another company, namely, the defendants " Berne " Commercial Motors, Ltd., was registered with the object of acquiring from " Berne" Motors, Ltd., the whole of the assets and goodwill of that company, including the business, factory and workshops at Olten and in England, and also including the sole right to the use of the name " Berea ' in connection with the menufecture and sale of motor lorries and muter vehicles. After

the formation of the defendants' " Berne," Commercial Motors, Limited, that company did an extended business, both on the Continent and in the United Kingdom and the Colonies in manufacturing and selling motor lorries and motor vehicles. Such lorries and vehicles became widely known as " Berne" motor lorries, and acquired a wide reputation as being motor lorries or vehicles supplied by the defendants " Berm " Commercial Motors, Ltd. in the month of March, 1912, the defendants, " Rena " Commercial Motors, Ltd., with the object of securing further capital, procured the registration in Switzerland of the defendants, Motorwagenfabrik " Berne" A.G., which_ had for their object the acquiring from the defendants, "Berea " Commercial Motors, 'Ltd., the factory and workshops at Olten and the property and assets of that company except the exclusive rights of the defendants, " Berne" Commercial Motors, Ltd., to menufacture and sell in the United Kingdom and the GnIonies under the name of " Burns. " motor lorries and vehicles. By an agreement ice writing, dated 31st August, 1912, and signed by the defendants, " Berea " Commercial Motors, Ltd., and Motorwagenfahrik " Berne." A.G., it was, amongst other things, agreed that the defendants, Motorwagenfahrik "Berne " A.G., should acquire from the defendants " Berna " Commercial Motors, Ltd., the factory and workshops at Often and the property and aesets of that company, but the defendants, " Berne" Commercial Motors, Ltd., were to retain, in the United Kingdom and its Colonies and Dependencies, the exclusive rieht to the use of the name " Berne " as applied to motor vehicles, and also the exclusive right of manufacturing aed selling " Berea " .chassis, the defendants, the Motorwagenfabrik " Berne " AU, retaining the sole right of manufacturing and selling " Berne " chassis outside such territories, neither party competing with the other by selling or supplying directly or indirectly any chassis or other manufactures to any person carrying on business in or intending to use or resell such chassis in thu territory of the other party.

British Berna and John Yarwood.

This written agreement further provided that the defendants, the Motorwagenfabrik "Berne " A.G., should supply defendants, " Berna" Commercial Motors:, Ltd., with ehaesie on stated terms. On the 7th January, 1913, the plaintiff company was registered under the Companies (Consolidation) Act, 1908, with the object of acquiring from the defendants, " Berne" Commercial Motors, Ltd., the exclusive right of the use of the name " Berne " in connection with the manufacture, sale or supply in the United Kingdom of all meter vehicles. Shortly after its incorporation plaintiffs took over from the defendants, "Berns. " Commercial Motors, Ltd., the garage and works known as the Avonmore Garage, Avonntore Road, West Kensington, and ever since the date of the incorporation the plaintiffs had carried on business at Avonmore Road. On the 30th July, 1913, however, the defendants, John Yarwood and Co., Ltd., were registered under the Companies (Consolidation) Act, 1908, with the object of carrying on, in the United Kingdom and elsewhere, the business of manufacturers of, dealers n and agents for motors of every description, and the olaintiff company alleged that the defemiante, John Yarwood and Co., Ltd., and Motorwagenfabrik "Berea" A.G., had conspired to deprive them of the benefits of the agreement of 31st August, 1912, and that the Swiss company, at the instigation of John Yarwood and Co., had wrongfully refused to deliver any motor chassis to the

butt were supplying such motor chassis to the defendants, John Yarwood and Co., for the express purpose of being sold by them under the name of "Berne," in the United Kingdom. The plaintiffs therefore now esker] for an injunetion to restrain the defendants -er their agents offering for sale in Great Britain, under the name of " Berne.," any motor lorries or motor vehicles other than those of the plaintiff company. and plaintiffs also claimed damages from these three companies for wrongful conduct in this respect.

In concluding his opening statement Mr. Martelli quoted numerous legal authorities and decisions in support of his case, after which he called a Belfast dealer, who spoke to certain alleged misrepresentations having been made to him by some of the defendants with regard to the position of the plaintiffs in respect to the " Berns." motor vehicles, and then Mr. Charles Walter Grimwade, a director of British "Berne " Motor Lorries, Ltd., gave evidence supporting the plaintiffs' case, and in reply to Mr. Remer's eross.examination he admitted that for some time his firm traded merely as " Berne Commercial." The cross-examination of this witness was proceeding when the court adjourned.

At the opening, of the Court on Thursday, it was announced that unsucccesful attempts had been made by the parties to effect a settlement, the negotiations breaking down on a question of price. Replying to further cross-examination, Mr. C. W. Grimwade, a director of the British "Berna." Motor Lorries, Ltd., said he could not positively say whether any letters were addressed to the Swiss Co. on notepaper bearing the name British Berna Motor Lorries, Ltd. There mere two kinds of notepaper in the office, one headed "Berna Commercial" and the other "British Berna Motors," and either could be used. Mr. Yarwood had been connected with the motor industry some time before he joined " British Berne Commercial " in 1910, and in 1912 Mr. Yarwood, on several occasions, expressed dissatisfaction, and threatened to resign. Yarwood 's dissatisfaction arose through the Swiss company nut delivering chassis properly. Witnese denied that entries were made in the books of his company representing sales of lorries which had never taken place. When Mr. Yarwood was accused of negotiating with the Swiss Co. on his own behalf, he indignantly denied it, but witness knew that he had done so through letters received.

Mr. George Arthur O'Hanlan, a shareholder in the plaintiff company, stated that on 30th August, 1913, he was in Switzerland; a Mr. Guhl introduced, on behalf of the Swiss company, an agreement which he represented would settle all misunderstanding, but never suggested that the agreement would give the Swiss company something they never before possessed. (The defendants now allege that the agreement of 31st August, 1912, entered into with "Berna" Commercial Motors, Ltd., was finally determined by the agreement dated 30th August, 1915, by which they are at liberty to sell motor chassis and motor vehicles in Great Britain and the Colonies under the manic of " Berne," and this they say they intend to dn.) At this stage the examination of the witness was adjourned until Friday.

A Settlement by Agreement.

We give a report of the proceedings in Court on Friday last. It will be seen that the case was settled by agreement. The word " Berne " in future, so far as the U.K. goes, is to be vested in British Berne Motor Lorries, Ltd.

Mr. Martelli : Might I ask your lordship if I may interpose in the case of the British Berna Motors as it is now finally settled? If your lordship would allow me to mention it now, it can be disposed of, and the parties will be at liberty to leave.

Mr. Justice Sargent : Certainly.

Mr. Martelli : Your lordship remembers there are two actions. In the first action we propose to take an order in the terms signed by the solicitors. Those terms involve an injunction in the terms asked for in Clause I of the plaintiffs' claim.

Mr. Justice Sargent : By the first action you mean the one against Yarwood and Rance?

Mr. Martelli : Yes, my lord. Terms have been signed by the solicitors, and we propose to take your lordship's order. I ought to mention this : we propose to take an injunction in the terms asked for in Clause 1 of the claim leaving out the words "information of "—(your lordship knows there is a difficulty in granting an injunction against making use of information)—and then an order for the delivery up by the defendants to the plaintiff company of the diary and the leather case and its contents referred to in the pleadings. Each party pays their own costs in the action, and there is an undertaking by the defendants guaranteeing to pay 25 per cent, of the profits when ascertained in the inquiry for damages under the order in the second action.

Mr. Mark Romer The terms have been signed in that action as well.

Mr. Martelli : Yes. In the second action your lordship remembers there are three defendents. As regards the first defendant, John Yarwood and Co., Ltd., we take an injunction in the terms asked by the statement of claim quite in common form, and we take an account of the profits made by John Yarwood and Co. Ltd., by the sale of motor lorries contrary to the terms of the injunction. That again is quite in common form. The costs of that inquiry are reserved. There is an undertaking by John Yarwood and Co., Ltd., to forthwith remove the Ziveetisement of the word "Berna" at their garage at West Kensington. Each party to pay their own costs up to the trial, and John Yarwood and Co.' Ltd., are to be at liberty to sell 20 Berna chassis on certain terms. Of course, they are not included in the account of profits; that is for their own benefit. As regards the Swiss company, the parties have e terms which, I am glad to say, your lordship will not have to construe. They are long and elaborate terms, and we propose to stay the proceedings against them on those terms.

Mr. Justice Sargent : Do you embody those terms in tha schedule to the order?

Mr. Martelli : Yes. The proceedings against the Swiss company will he stayed upon the terms which have been signed by Mr. Guhl and Mr. Grimwade and Mr. Menzies. In the case of any dispate arising as to those terms it will be referred to a practical man to decide; so that I am glad to say your lordship will not be troubled further about that. As regards the other defendants, the Berne. Commercial Motors, they will produce a consent brief to the registrar.

Mr. Justice Sargant : A consent brief will be produced on their behalf ?

Mr. Martelli : Yes. Then, as regards the counterclaim, the counterclaim is withdrawn' each party paying their own costs, and there will be liberty to apply to enforce the terms, and generally.

Mr. Justice Sargent : Very well. Mr. Mark Romer : May I say this? My client, Mr. Yarwood, has submitted to these orders after the lengthy agreement which has been come to, the particulars of which have not been made public. The terms of the agreement are very long, and he wishes it to be understood, as otherwise it might be thought that the fact of his submitting to these orders without going into the witness box did not warrant the statement, that he really looked forward to going into the box so that he might make clear to the court that whatever negotiations he made with the Swiss company with the result of obtaining the agreement which your lordsfiip has heard of, were negotiations 'which only began after he resigned his position as a director of the British Berna. He did want to make that clear in the box, and he desires me to make that statement now.

Mr. Justice Sargant : There will be separate orders, of course, in each action.

Mr. Martelli: Yes.

[A letter which has been addressed to us by Mr. John Yarwood is included amongst "Opinions from Others" on page 5M.—E0.]


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