Smith v. Yost
| Decision Date | 20 November 1919 |
| Docket Number | 10,218 |
| Citation | 125 N.E. 73,72 Ind.App. 628 |
| Parties | SMITH v. YOST |
| Court | Indiana Appellate Court |
Rehearing denied February 26, 1920.
From Marshal Circuit Court; Smith N. Stevens, Judge.
Action by Noah N. Smith against William B. Yost. From a judgment for defendant, the plaintiff appeals.
Reversed.
James V. Kent, Thomas M. Ryan and Harley A. Logan, for appellant.
Walter Brubaker and L. W. Royse, for appellee.
Appellant instituted this action against appellee on December 8, 1915 to enjoin the latter from using the word "Bankable," as a trade name, or as a part of a trade name, for cigars, and to recover damages for a prior use thereof by appellee. Appellant's complaint consists of six paragraphs, but the fourth paragraph was withdrawn. Appellee filed demurrers to each of the other paragraphs for want of facts, all of which were sustained. Appellant refused to plead further, and judgment was thereupon rendered against him for costs. He is now prosecuting this appeal, and has assigned the action of the court in sustaining appellee's demurrers to the several paragraphs of his complaint as the sole errors on which he relies for reversal. The first paragraph of complaint alleges in substance, among other things, that for more than five years appellant has been engaged in manufacturing and selling cigars throughout the State of Indiana, except in the counties of Kosciusko, Fulton, Pulaski, Wabash, Miami, Huntington, Whitley, Noble and Elkhart; that during such time he manufactured and sold at wholesale, to retail merchants and cigar dealers, a cigar which was sold at retail for the sum of five cents; that all of such cigars were so sold by him in boxes containing 100 or less, and on all of such boxes there was painted, lithographed, stamped, or labeled the name "Bankable" in connection with the name "N. N. Smith Co.," which name was so placed on such boxes as a distinguishing mark and trade name for the identification of such goods, so manufactured and sold by him; that during all of said time he had advertised said name in connection with his said business exclusively as a distinguishing mark or brand of the goods manufactured and sold by him; that, by reason thereof, his said cigars, on October 26, 1914, and for a long time prior thereto, had become known to the general public throughout the State of Indiana, except within said nine counties, by said name, which served and still serves as a distinguishing mark or brand for his said goods of the character described; that during all of said time he had used said name in the manner aforesaid to the exclusion of all other persons within said territory, and thereby acquired and had on said October 26, 1914, the right to manufacture merchandise of the character aforesaid, and to sell the same under said trade name within said territory; that on said date he was manufacturing such cigars in the city of Frankfort, Indiana, in a large plant then owned by him, and which he still owns; that by reason of the facts alleged he had acquired a good will for the cigars so manufactured, and sold by him under said trade name and at said price, which was on said date, and still is, of great value to him; that for several years prior to October 26, 1914, appellee had manufactured cigars in the city of Warsaw, Indiana, and had sold the same exclusively within the confines of said nine counties named above; that such sales had been made in boxes on which there was printed, stamped, lithographed, or otherwise placed, the name "Yost's Bankable," for the purpose of distinguishing and identifying the same as goods manufactured and sold by him; that said cigars were so manufactured and sold by appellee within said territory at wholesale to retail merchants and cigar dealers, to be sold at retail at five cents each; that appellee had used said trade name exclusively within said nine counties for several years prior to said date, for the purpose of identifying his goods, and had thus acquired the right to manufacture and sell goods of such character at said price within said nine counties; that the name "Bankable," as used by both appellant and appellee as aforesaid, was and is purely fanciful, and in no way indicates the place where or person by whom, said cigars are or were manufactured; that the use of said name by appellant does not denote any special quality or character of the cigars manufactured and sold by him, and that said name was used at all times by appellee in connection with his own name, Yost; that on October 26, 1914, appellee and appellant entered into an agreement in writing, whereby the former assigned to the latter, in consideration of $ 400 in hand paid, all his legal rights in and to the trade name "Bankable," and the use thereof as a trade name for cigars, except that appellee reserved the right to use said name upon cigars, etc., manufactured and sold by him for one year thereafter to customers to whom he had theretofore sold the same; that appellant had in all things complied with the terms of said contract on his part to be performed; that thereafter appellant, in pursuance of and relying upon the terms of said agreement, advertised said name "Bankable" extensively within said nine counties, in connection with his own name, N. N. Smith Co., as a designation and trade name for cigars, manufactured and sold by him at wholesale to retailers, to be retailed to the general public for the sum of five cents each, and in so doing expended more than $ 500; that his said cigars were thereby placed in the hands of dealers, who sold the same to the general public since said date under the name "Bankable"; that said name has thus become and is now known to the general public of said nine counties as the designation and name of cigars manufactured and sold by appellant; that he has thereby acquired the good will of the public and a market for his cigars within said territory under said trade name; that appellee has wholly failed to comply with the terms of said agreement, and since October 26, 1915, has been, and is still, using said name "Yost's Bankable" as a trade name or brand for the purpose of identifying cigars manufactured and sold by him at wholesale to be retailed at the sum of five cents each, by printing, stamping, lithographing, or otherwise attaching said name thereto, and is threatening to, and will, continue so to do, unless restrained therefrom; that the act of appellee in so doing will injure the business of appellant in the manufacture and sale of goods of like character and price, under said trade name "Bankable," as used in connection with his name as aforesaid; that the continuance of the use of said trade name, as threatened by appellee, will result in great and irreparable injury and damage to appellant and his said business; that by reason of the premises he has been damaged in the sum of $ 500. Prayer for an injunction and for damages.
A copy of the alleged agreement was filed with said paragraph of complaint as an exhibit. Said agreement contains, among others, the following provisions:
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