Lamar v. Russel

• Decision Date: 25 January 1887
• Parties: LAMAR and others v. RUSSEL.
• Court: Georgia Supreme Court

2 S.E. 467

77 Ga. 307

LAMAR and others v. RUSSEL.

Supreme Court of Georgia

January 25, 1887

From city court of Macon.

Gustin & Hall, for plaintiffs in error.

John P Ross, contra.

HALL J.

Russel brought suit against Lamar, Rankin & Lamar, and alleged in his declaration that the defendants, as partners, were engaged in the sale of drugs and medicines, and in the drug business, in the city of Macon, and were indebted to him in the sum of $130.12, with interest; that plaintiff was, on or about the first of August, 1883, employed by Lamar, Rankin & Lamar to clerk in their drug-store in Macon, in which position he remained during the year 1884, and until about March, 1885; that during this time, and while so employed, he was the owner and proprietor of a formula for making a preparation which he called "axle grease," a compound gotten up by him, and known and sold as "Russel's Axle Grease;" that, after making and selling this preparation for some time, and it being in some degree popular and sought after, Henry J. Lamar, Jr., one of the firm of said Lamar, Rankin & Lamar, voluntarily told him that he would allow him a liberal royalty on the sale of said Russel's axle grease, whereupon he compounded and sold said axle grease solely from the drug-store of said Lamar Rankin & Lamar, giving them the full benefit of all the profits from the sale of said "medicine;" and while said Lamar, Rankin & Lamar did not advertise said axle grease, petitioner, under the promise of a royalty, pushed the preparation as much as he could, and sold a quantity of the same, to-wit, 15 2/3 dozen ;bottles, small, and 26 5-12 dozen bottles, large. § Petitioner showed that, at the time of the agreement between himself and said Lamar, Rankin & Lamar, there was no amount fixed or specified as to what petitioner's royalty should be; that petitioner was reasonably entitled to half of the net profits on the sale of said axle grease, as a moderate and fair royalty; "his knowledge and skill being pitted against simply the cost of the preparation."

At the hearing of the case the declaration was demurred to, upon the ground that it set forth no cause of action. Pending said demurrer, the following amendment was made, viz., by erasing the word "voluntarily," in the second sentence of the second paragraph of the declaration, and otherwise amending said second sentence, so that the same would read thus: "That after making and selling...