18 Ohio App. 352 | Ohio Ct. App. | 1923
The petition in this action sets forth two causes of action. In the first a judgment for damages was prayed, and in the second, based upon the same allegations of fact, an injunction was sought restraining the defendants from continuing a certain course of business which was alleged to be in pursuance of a conspiracy to injure and destroy the business of the plaintiff. The second cause of action, only, was tried in the court of common pleas, and a final decree was entered therein, from which the defendants prosecute an appeal to this court. The case was tried in this court upon a transcript of the evidence introduced, at the trial in the court of common plea.s. This consists of five volumes of typewritten matter and two large volumes of exhibits, together with a large number of exhibits attached to a chart.
The plaintiff and the defendant Williamson Heater Company are large manufacturers of heating appliances. One of their products is a heating device known as a pipeless furnace. This action relates to the manufacture and sale of the pipeless furnace. It appears that the plaintiff began manufacturing a furnace known to the trade generally as a triple-casing pipeless furnace, which was designated by the trade mark “Calorie.” During the time this fumkce was being introduced to the trade, and up until the fall of 1919, Louis D. Woodrough was president and general manager of the plaintiff company. William L. McGrath was its sales manager. Kearney McCann was the traveling sales manager, and William J. Doyle and John J. Wollenhaupt were at the head of its engineering department. In October, 1919, serious' dissension arose among the officers and certain em
The plaintiff charges that thereafter, in the month of August, 1920, these three former employes and officers of the Monitor Stove Company entered into a conspiracy with the Williamson Heater Company, A. W. Williamson, and W. C. Williamson, for the purpose of destroying the business of the plaintiff, together with its good will, which good will had been built up in part through the efforts of Woodrough, McGrath and McCann, and Doyle and Wollenhaupt. It is alleged that some time prior to October, 1920, the defendants Doyle and Wollenhaupt joined in the conspiracy to destroy the business of plaintiff. It may be stated in a general way that the plan for accomplishing this result, as alleged by the plaintiff, was by circulating advertising matter in which were statements that the defendant Woodrough wás “the father of the pipeless industry,” that Doyle was “the most successful designer in the history of the pipeless furnace,” and other statements of similar import, which were calculated to deceive the public and give the impression that the success and utility of the triple-casing pipeless furnace had been attained and developed through the efforts and at the expense of the Williamson Heater Company, whereas the plaintiff claims the fact to be that all of the experience and skill that
It is also claimed by the plaintiff that the defendant company obtained a half interest in a useless patent for a furnace and that it thereupon fraudulently and falsely advertised that it was the original patentee of the furnace containing the air space or so-called triple-casing. The plaintiff also alleges that the defendants wrongfully obtained possession of catalogues, circulars and other advertising matter used by plaintiff, and imitated the same, and made use of such printed matter in the selling of defendant company’s furnaces. The plaintiff also alleges that the defendant company made improper use of records and information which came into the possession of Woodrough, Mc-Grath, McCann, Doyle and Wollenhaupt while they were employes of the plaintiff, relating to the manufacture, improvement and selling methods of the plaintiff, and that the use of such confidential information constituted a fraud upon the plaintiff.
It is further alleged that the defendants unlawfully obtained possession of a list of dealers of the plaintiff who prior to November, 1919, had purchased and sold the plaintiff’s product, and that they made use of such list for the purpose of brealdng down the selling organization of the plaintiff and securing the services of plaintiff’s dealers and agents. It is also alleged that the defendants made a concerted attack upon the entire selling organization of the plaintiff company, and by solicitation and harassing of such salesmen and dealers endeavored to break down the selling organization of plaintiff company and thus
The defendants by their answer deny these allegations of conspiracy and unfair competition and any attempt or intent upon their part to injure or destroy the business of the plaintiff company.
Counsel for both plaintiff and defendants have argued the case, both orally and by printed brief, most learnedly and with distinguished ability. The printed briefs disclose that counsel for all parties have made wide and careful research among the authorities bearing upon the questions involved, and the case has been most earnestly and thoroughly presented to the court. We have carefully considered the arguments and have read the voluminous record and briefs, and we think it not improper to state that we have given some ten days to the consideration of this case, to the exclusion of all other business during that time. The statement that has been made as to the large amount of evidence introduced and the extensive briefs filed will in itself indicate that it is not possible, within the reasonable limits of an opinion, to enter into any detailed discussion of the evidence.
We find from the evidence that the defendants, Woodrough, McGrath, McCann, Doyle and Wollenhaupt, did not leave the employ of the plaintiff company because of any conspiracy, understanding or agreement with the defendants, the Williamson Heater Company, A. W. Williamson, or W. C. Williamson, but that their relations with the plaintiff were terminated solely because of the very serious dissensions that had arisen within the organization of the Monitor Stove Company.
It is contended by the defendants that the allegations of the plaintiff of the existence of a conspiracy added nothing to the real issue in the case; that, in any event, the case was nothing more than an action to prevent unfair trade competition. We need not discuss the authorities cited by the defendants in support of this contention, in view of the fact that we have found from the evidence that no conspiracy existed.
It is charged by the plaintiff that defendants in their advertising matter were wrongfully appropriating the reputation of "Woodrough and Hoyle, established while in the service of the plaintiff. The first instance complained of was in sending out to the trade a circular letter under date of August 25, 1920, purporting to be signed by Wood-rough, McGrath and McCann. This letter con
Neither do we find that the defendant company has exceeded its legal rights in advertising the merits of its furnace, nor in comparing it with other pipeless furnaces. “A Study in Proportion,” found on page 14 in “The Story of Homaker,” about which a great deal was said in argument, we find to be only a legitimate comparison of what the defendant company claims to be the superior merit of its furnace over that of other pipeless furnaces, and it is not material that the orange lines fairly represent the “Caloric” furnace. The pamphlet called “The Story of Homaker” is so dissimilar in its general appearance, and in its contents, from the pamphlets of the plaintiff company that it can in no sense be said to be a copy or to operate in any way to deceive any who have occasion to read “The iStory of Homaker.” Indeed we find in none of the advertising matter of the defendant company anything that is subject to criticism as constituting unfair trade competition with reference to the plaintiff company. The use of the colors orange and black in its advertising matter is neither novel nor an infringement upon any right of the plaintiff company. The use of those colors in advertising is very common. A g'reat many manufacturing and commercial concerns have made use of them for many years.
The charge of an attempt to break down the sales organization of the plaintiff by making a concerted attack upon its salesmen and branch managers is not sustained by the evidence. The fact, as disclosed by the evidence, is that the Williamson Heater 'Company, as part of a program for making an aggressive sales campaign in 1921, determined to increase its sales force from approximately twenty men to about thirty-five or forty. It is shown that it employed eighteen men who had at some time been in the employ of the Monitor Stove 'Company. Of these eighteen, nine had either been discharged or had left the employ of the plaintiff. Of the other nine the evidence fairly shows that they sought employment from the defendants and were a.t the time under no contract with the Monitor Company that was not terminable at the will of either the salesmen or the company. The evidence is in dispute as to whether certain branch managers sought employment from the defendants or the defendants sought to obtain the services of these branch managers,
This court cannot and does not undertake to determine any question as to the validity or priority of any patents pertaining to pipeless furnaces. The only patent claimed by the defendant company is an interest in the Rainey patent, and we find in the advertising matter of the defendant nothing that can be construed as a claim to the Doyle-Wollenhaupt patents or that defendant is manufacturing any product by virtue of such patents.
The plaintiff earnestly contends that the defendants made improper use of a list of customers and dealers of the Monitor Stove Company that had been wrongfully obtained from its offices. This list is known in this case as Exhibit No. 75. The court of common pleas appointed a special master commissioner to take evidence concerning this list and the uses made of it, and this was done, and the evidence is preserved in a large volume. At the time Mr. Woodrough severed his connection with the Monitor Stove Company he requested Mr. McCann to have Bernhart, another employe of the Monitor Stove Company, send him a list of the dealers. This request was complied with and Bernhart sent the list to Woodrough by another employe of the Monitor Stove Company, Mr. Baer. Woodrough states that his purpose was to have this list so that he might, if he de
Upon an examination of this entire record we find against the plaintiff and in favor of the defendants on every issue except that with reference to the use of the list known as Exhibit No. 75, and as to that list a decree may be drawn in the same form as the decree in the common pleas court, so far as it relates to the list and its use, except that the injunction shall not extend beyond January 1, 1926. The decree shall also provide that the costs shall be paid one-half by the plaintiff and one-half by the defendants.
Decree accordingly.