Nulomoline Co. v. Stromeyer

• Decision Date: 17 March 1917
• Docket Number: 1669
• Citation: 240 F. 228
• Parties: NULOMOLINE CO. v. STROMEYER.
• Court: U.S. District Court — Eastern District of Pennsylvania

240 F. 228

NULOMOLINE CO. v. STROMEYER.

No. 1669

United States District Court, E.D. Pennsylvania.

March 17, 1917

Leo Levy, of New York City, and Chester N. Farr, Jr., of Philadelphia, Pa., for plaintiff.

Michael J. Ryan and Reber & Granger, all of Philadelphia, Pa., for defendant.

DICKINSON District Judge.

As this is a motion for an interlocutory decree, the question before us is not to what relief the plaintiff may be able to prove it is entitled after final hearing, but to what it is now entitled in order to make this anticipated relief effective. We are in consequence confronted, not with the situation of the parties as it will be shown to be when the facts are fully developed, but with the situation as it now is.

From the moving and answering affidavits, and the admissions made at the argument, we have this situation appearing: Maxwell Tausig was in the employ of the plaintiff as the manager of one of its departments. To him as such manager was imparted certain confidential information. This included a knowledge of the customers of the plaintiff and of its processes of manufacture. The manager left the employ of plaintiffs, following a discharge. He was accused by the plaintiff of making improper and unfair use of the confidential information he had secured, and with making away with the property of the plaintiff by using and selling to others to be used the secret processes of manufacture belonging to plaintiff. This conduct of the former manager was not only a violation of the obligations he had assumed in his trust relations with the plaintiff, but was also a violation of the contractual obligations he had entered into, because he was divulging secrets which he had agreed not to divulge. These accusations against Tausig were voiced in a bill in equity against him, and the defendant was enjoined by decree of the Supreme Court of New York from a continuance of the acts of which plaintiff had complained. The cause is still pending on appeal to the Court of Appeals from the decree entered. The accusation against this defendant is that he has conspired with Tausig to have done for the defendant's benefit the very things within this district which Tausig has been enjoined from doing by the New York court. The present bill was filed, and we are asked to enjoin, before the facts are determined, the present defendant. The logic of the bill is that the defendant should be enjoined from conspiring with Tausig to have done by Tausig for the defendant's benefit the things which Tausig has been enjoined from doing.

An answer has been filed, full and responsive, denying all the pertinent averments of the bill. It meets the averment of the appropriation of the property of the plaintiff by the opposing averment that the plaintiff has no secret processes and in consequence no property right in any process, and that if it had processes which it has used the defendant has not appropriated them. On the contrary, the averment of the answer is that the plaintiff and defendant have each for years been engaged in the manufacture of inverted sugars that there is neither mystery nor secrecy in such manufacture; that the processes by which the product is turned out are well known to chemists and to those concerned with either the manufacture or the trade in such products and that the relations between the defendant and Tausig are simply those between a manufacturer and a broker, and that Tausig is doing nothing for the defendant more than making the effort to sell for the defendant his make of product made by his processes and not those of the plaintiff. The averments of the answer are fully supported by the answering affidavits.

The real issue raised by the reply affidavits is the truth of the averments of the answer. The real complaint of the plaintiff is this: We have a process which is ours. We have customers who have been supplied for years with our product. They are satisfied with what we have supplied them, and will accept no others. Other manufacturers, including ...