Greacen v. Bell

• Decision Date: 05 April 1902
• Citation: 115 F. 553
• Parties: GREACEN v. BELL.
• Court: U.S. District Court — District of New Jersey

115 F. 553

GREACEN v. BELL.

United States Circuit Court, D. New Jersey.

April 5, 1902

Joseph D. Gallagher, for complainant.

Edwin B. Williamson, for defendant.

KIRKPATRICK District Judge.

It appears from the record in this case that in 1885 the Waddell Manufacturing Company was engaged in the manufacture of certain washers made from a combination of rubber, to which it applied the distinguishing name of 'The Boss,' and that afterwards the said company adopted the name of the 'Boss Washer Company.' Neither of said companies was incorporated. In 1886 William M. Clarke succeeded to the business of the Boss Washer Company, became the owner of the assets, and continued to manufacture the said washers, and their sale, under the name of the 'Boss Washer.' It also appears that early in 1887 a controversy arose between the said Clarke and one Rosegarten in respect to the right to use this trade-mark or name, and that a decree was entered in the circuit court of the United States for this district affirming Clark's right thereto and his ownership in said trade-mark name. It also appears that said Clarke entered into a partnership with Andrew Bell, the defendant, for the purpose of manufacturing and selling 'Boss' washers and after the arrangement had continued for some time he made a memorandum of the agreement in these words:

'Newark N.J., May 20, 1889. This certifies that Andrew Bell is interested in the manufacture and sale of 'Boss' washers, and other goods made of rubber as equal partners with me, we sharing equally the profits and losses made in said rubber goods. This partnership began November 5, 1886 and is to continue as long as may be mutually agreeable. The mill press and molds used in said business are to be paid out of the joint funds, and belong equally to Andrew Bell and William M. Clarke. (Signed) William M. Clarke.'

The partnership was formed and continued to manufacture and put on the market 'Boss' washers until March, 1891, when Clarke, retiring, sold Bell his interest in the personal property of the firm, as per schedule attached to the bill of sale. At the time of the sale it was agreed between the parties that Bell should continue to manufacture the 'Boss' washers, and sell the same to a firm in which Clarke was interested, at $3.50 per thousand, which was about the cost price, and that said Bell should not sell washers so made to any other persons at a less price than $4.50. Thereafter Bell continued the business, and for a time sold the washers as per agreement. Upon his failure so to do he received notice from Clarke that he was no longer to continue their manufacture and sale. Bell continued the business, and one Edward J. Greacen, who holds the assignment of Clarke's rights to the trade-mark 'Boss Washer,' filed this bill to restrain Bell from using the trade-mark name 'The Boss,' and using the name of the 'Boss Washer Company.' It is conceded that prior to the partnership agreement between Clarke and Bell the title of the trade-mark and name 'Boss Washer' was in Clarke, as determined by the Rosegarten suit. Bell admits that he did not own it, and it...