54 N.Y.S. 663 | N.Y. Sup. Ct. | 1898
The principal object of the action is to restrain the Petrolia Manufacturing Company and its assignors, Pitcher ói Martin, from using its plant (which had been obtained from the defendant Grant) m making a white cochin cocoa-nut oil soap, known as Coal Oil J oknny Soap, and to restrain Pratt from making or assisting in making said soap on said plant, etc., etc.
The complaint is based on a contract between Grant and Bell & Bogart (the plaintiff’s assignors), dated July 20, 1895, whereby Grant, for a certain consideration to be paid, agreed to erect for Bell & Bogart a soap plant with a capacity of 200 boxes of white cochin cocoa-nut oil soap per day, “ the same kind of soap now being supplied Maross Jenkins, and known as Coal Oil Johnny Soap,” and whereby Grant further agreed to file and surrender his rights and claims in the process and formulae and making of said soap, and that he would not sell any plants in the United States for the manufacture of white cochin cocoa-nut oil soap or engage in the manufacture of said soap during the term of twenty years.
The complaint then proceeds and charges that thereafter, on February 11, 1896, Grant entered into contract with Pitcher & Martin for the erection of a soap plant in all respects similar to the plant he had sold to Bell & Bogart, which was ostensibly designed for the manufacture of green soaps, but was intended to be used and subsequently actually was used by the defendant corporation for the manufacture of a white cochin cocoa-nut oil soap under the name of Coal Oil Johnny, which was in all respects similar to the soap made by the plaintiff. This is charged to have been done by the defendants unlawfully, fraudulently and without the consent of the plaintiff and pursuant to a fraudulent scheme entered into between them. Pratt is further charged with having acquired his knowledge of maldng said soap in such a confidential capacity that a court of equity will restrain him from using it to the prejudice of the plaintiff.
The defendant Grant failed to answer, but the other defendants appeared and by their answers put in issue all the material allegations of the complaint.
The trial was a protracted one and the evidence is very voluminous. After careful consideration of all matters submitted, I cannot find that the plaintiff has substantiated its alleged cause of action against the answering defendants.
Coal Oil Johnny Soap was an article well known in the market. Jenkins controlled its sale. He held the trade-mark and pro
His ideas in these respects he undoubtedly undertook to sell to Bell & Bogart, plaintiff’s assignors, in connection with the plant he erected for them, and Bell & Bogart, who had no prior practical experience, may have been led to believe and may have believed that his method of making the soap was founded upon a valuable secret process. But upon the facts disclosed there was within the rules of law applicable to such a case, no secret process whatever involved.
As regards the plant Grant’s contract with Bell & Bogart was that he would not sell any plants in the United States for the manufacture of white cochin cocoa-nut oil soap. . This, on its face, did not preclude Grant from selling or putting up any other kind of a soap plant to or for anvbodv else. Bell & Bogart may have been led by Grant to believe that for the purpose of manufacturing
The evidence wholly fails to establish such knowledge and fraudulent scheme. Fraud is never presumed, but must be proved. Mere conjecture or surmise is not enough. True, it may be established by circumstantial evidence, but such evidence must be convincing. The evidence in this case is not of that character. There is no evidence that Grant ever communicated to Pitcher <fc Martin or to Pratt the particulars of his method of making Goal Oil Johnny Soap. On the contrary the evidence is the other way. True, Pratt acquired some knowledge of it, but not surreptitiously, as is claimed in the complaint, but in a perfectly lawful way, namely by instruction from his brother, who was in Grant’s employ. He was tinder no promise or obligation not to use or reveal his knowledge. Nor have sufficient facts been shown upon which it can be held that he was under an implied contractual obligation to Bell & Bogart not to use or reveal his knowledge to their .prejudice. Grant did not even know that Pratt had any knowledge of the precise particulars observed by Grant in the manufacture of Goal Oil Johnny Soap. The mere fact, therefore, that Grant, under the circumstances already referred to and pursuant to his contract obligation to furnish an operator to Pitcher & Martin, recommended Pratt to them and thus secured his employment, proves no essential element in plaintiff’s cause of action. More
The remedy of the plaintiff is against Grant. As against all the other defendants no cause of action has been established and they are entitled to a dismissal of the complaint as against themselves upon the merits, with costs. Each defendant appearing by separate attorney should have a bill of costs. The case is also one for an allowance, if a proper basis is presented for its computation, but upon this point the application should be renewed upon affidavits in connection with the pleadings and the proceedings and the testimony given upon the trial.
Ordered accordingly.