The evidence shows that much the greater part of the numerous letters addressed to “ Dr. David Kennedy, Rondont, N. Y.,” or “ Dr. D. Kennedy, Rondout, N. Y.,” are letters ££ in connection with the manufacture of the proprietary medicines ” which, with, the entire business connected therewith and the good will, the defendant for a valuable consideration sold to the plaintiff,
The bill of sale given by the defendant to the plaintiff in 1890 contains this clause: “ Also ‘ the good will ’ of the business of Dr. David ■ Kennedy now carried on by me at Rondout, N. Y., with the sole and absolute and only right to use the names £Dr. David Kennedy, of Rondout-, N. Y., or Dr. D. Kennedy, Rondout, N. Y.’ in connection with the manufacture of the proprietary medicines hereby granted and sold by me to the said corporation.”
The contract in case of doubt must be construed most favorably to the vendee. (Blackman v. Striker, 142 N. Y. 560.) 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 v. Devoe, 124 N. Y. 120.) If doubts still remain then weight may be given to the practical construction given to the contract by the parties themselves during the seven years in which they worked harmoniously together under it. Such practical construction by both parties, where one party has invested his money or so managed his business in reliance upon it, that to reverse on change it would be to his prejudice, may, as we think it would in this case if it were needed, amount to an estoppel. (Trustees v. Smith, 118 N. Y. 634.)
The following clause in the contract shows that the defendant meant - to sell without reserve everything that could be reasonably embraced in the terms of the contract: “ And I do hereby agree, in 'consideration of such payment of one hundred and fifty thousand dollars as aforesaid, to execute and deliver any other or further paper-the said corporation may be advised is necessary and requisite to convey and vest more fully in the said corporation all my right, title and interest of, in and to any and all of the said property and busi*604ness hereby sold or intended to be sold to the said ‘ Dr. David Kennedy Corporation. ”
All we need to say is that the defendant must observe the terms ■of the contract in letter and spirit. ITe 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 plaintiff from the post office ; that since February, 1898, the defendant, claiming the right to do so, notwithstanding the protest of the plaintiff and its proper demand to the contrary, has first received the letters thus addressed, and retained such of them as he deemed proper and then sent the others to the plaintiff.
Thus it appears, and other evidence is to the same effect, that the plaintiff is hindered and restricted by the act of the defendant in the ■en joyment .of its “ sole and absolute and only right to use the names ‘Dr. David Kennedy of Rondout, N. Y., or' Dr. D. Kennedy, Rondout, N. Y.,’ in connection with the manufacture of the proprie'tary medicines,” and also in the full enjoyment of “ ‘the good will’ of the business of Dr. David Kennedy,” specified in the bill of sale.
Among the letters thus addressed are some which in no way concern the plaintiff, and the first receipt of ■ the letters by the plaintiff will in some degree subject the defendant to inconvenience. That results from the fact that his proper name, “David Kennedy,”'and his trade name, “ Dr. David Kennedy of Rondout, N. Y.,” or “ Dr. D. Kennedy,- Rondout, N. Y.,” have points of resemblance. His trade name was salable property. (Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; Caswell v. Hazard, 121 id. 484 ; Russia Cement Co. v. Le Page, 147 Mass. 206.) The defendant sold it and. thus has been paid for this inconvenience. The trade name' was valuable when the plaintiff bought it, and the plaintiff has preserved its value and probably greatly increased it by large expenditures in advertising it in connection with its business for - the seven years .in which the defendant himself remained the head and practical director of that business. It is an essential part of the name and fame of the plaintiff’s business — it identifies its merchandise, preserves to it its established character, and tends to secure and, we may assume, to extend and continue its volume of business.
*605The suggestion that the plaintiff has abused, or may abuse, rights of the defendant not embraced within the bill of sale, is not now pertinent. Such abuse, if it shall need judicial redress, will be considered when properly presented. Nor need we suggest to the defendant by what methods he can lessen, without prejudice to the plaintiff, the inconveniences which seem to annoy him.
It is not a case in which an adecénate remedy at law exists, and on the plainest principles of equity the plaintiff should have relief by-injunction.
Practically, there is no dispute about the material facts.
The judgment is reversed and judgment directed for the plaintiff^ with costs here and below. Judgment to be settled by Landon, J„
All concurred, except Merwin and Putnam, JJ., dissenting.
Judgment reversed and judgment directed for plaintiff, with costs, here and below. J udgment to be settled before Landon, J.