Godefroy Mfg. Co. v. Lady Lennox Co.

• Decision Date: 07 December 1937
• Docket Number: No. 24479.,24479.
• Citation: 110 S.W.2d 803
• Court: Missouri Court of Appeals
• Parties: GODEFROY MFG. CO. v. LADY LENNOX CO. et al.

110 S.W.2d 803

GODEFROY MFG. CO. v. LADY LENNOX CO. et al.

No. 24479.

St. Louis Court of Appeals. Missouri.

December 7, 1937.

Motion to Reinstate Cause Overruled December 22, 1937.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be published in state reports."

Suit by the Godefroy Manufacturing Company against the Lady Lennox Company and another. Decree enjoining defendant as prayed in petition, but providing further that case should be referred to a master for ascertainment of damages, and defendants appeal.

Appeal dismissed.

Transferred from the Supreme Court in 339 Mo. 1107, 100 S.W.2d 271.

S. D. Flanagan, of St. Louis, for appellants.

Salkey & Jones, of St. Louis, for respondent.

BECKER, Judge.

Plaintiff's suit is for an injunction and damages. Plaintiff is engaged, among other things, in the manufacture and sale of a hair dye made from a secret formula. Plaintiff's petition alleges that the defendant Norman W. Siebras, while an employee of plaintiff occupying a position of confidence and trust, acquired knowledge of the secret formula used by plaintiff in making hair dye; that, after Siebras left the employ of plaintiff, he organized the Lady Lennox Company, a corporation, defendant herein, which company he controlled; that said Lady Lennox Company engaged in the manufacture and sale of hair dye, using plaintiff's formula and sales method of advertising and selling its product. The petition prays that defendants be enjoined from using the alleged secret formula of the plaintiff for manufacturing hair dye, and from continuing certain alleged unfair trade practices, and that the court, upon restraining and enjoining defendants, take an account as to the extent of plaintiff's damages and award plaintiff such damages as it may have sustained by reason of such unfair competition, which damages are alleged to be in excess of $10,000.

The answer was a general denial.

A hearing of the case resulted in a decree permanently enjoining defendants as prayed in the petition, but provided further that:

"This cause will be referred to a master of this court if hereafter found necessary to ascertain and report to this court the amount of damages that plaintiff has sustained by reason of the acts of said defendant Norman W. Siebras during the period from the seventeenth day of March, 1932, to the Fifth day of July, 1932, and by reason of the acts of the said defendant Lady Lennox Company during the period commencing July 5, 1932, and thereafter. Said master shall report his finding to this court, with all convenient speed, and the said defendant Norman W. Siebras and said defendant Lady Lennox Company, a corporation and each of them, are hereby directed and required to attend before said master in person and said corporation, by its directors, officers, agents, servants and employees, from time to time, as required, and to produce before him such books, papers and documents as relate to the matter at issue and to submit to such thorough examination as the master may require.

"The court retains control and jurisdiction of this cause for the making of such other and further orders and decrees herein, from time to time, as may be proper and the circumstances may require."

After an unavailing motion for new trial, defendants were granted an appeal to the Supreme Court, which court held that it was without appellate jurisdiction and transferred the case to this court. See Godefroy Mfg. Co. v. Lady Lennox Co., 339 Mo. 1107, 100 S.W.2d 271.

In light of the record before us, we are constrained to the view that the appeal herein is premature and presents nothing upon which this court can act, because the judgment entered below is not a final judgment, since it settles only a part of the issues in the case. Section 1070, Rev. St. of Mo. 1929 (Mo.St.Ann. § 1070, p. 1370); section 1077, Rev.St. of Mo.1929 (Mo.St.Ann. § 1077, p. 1376); Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614, 616; Barlow v. Scott (Mo.Sup.) 85 S.W.2d 504, 519; Barr v....