Stonebraker v. Stonebraker

• Decision Date: 07 July 1870
• Citation: 33 Md. 252
• Parties: SAMUEL STONEBRAKER and Henry K. Hoffman v. HENRY STONEBRAKER. Charles A. Clotworthy and William P. Clotworthy v. Henry Stonebraker, Abraham S. Stonebraker v. Henry Stonebraker.
• Court: Maryland Court of Appeals

33 Md. 252

SAMUEL STONEBRAKER and Henry K. Hoffman v. HENRY STONEBRAKER.

Charles A. Clotworthy and William P. Clotworthy v. Henry Stonebraker, Abraham S. Stonebraker v. Henry Stonebraker.

Court of Appeals of Maryland

July 7, 1870

Appeals from the Circuit Court of Baltimore City.

The bill of complaint in this case was filed on the 9th of July 1867, by the appellee, against the appellants and Leonard Passano; it alleged, that prior to the years 1858 and 1859 the complainant, then residing at Funkstown, Maryland directed his attention to the compounding of certain medicines and preparations; that by diligent and laborious study, and careful and oft-repeated experiments, he succeeded in producing the following compounds, to each of which he gave the name by which it was respectively called, to wit ""Stonebraker's Nerve and Bone Liniment," "Stonebraker's Celebrated Hair Restorative," "Stonebraker's Balsam or Pain Killer," "Stonebraker's Dyspepsia Bitters and Liver Invigorator," "Stonebraker's Rat and Roach Exterminator," """"Stonebraker's Horse and Cattle Powders," "Stonebraker's Vegetable Cough Syrup," and "Stonebraker's Bed Bug Exterminator."

The bill further alleged that the said preparations soon became of great repute, were advertised by the complainant in many of the States at great expense, and that the manufacture and sale thereof became the source of great profit and emolument to him; that he adopted and used on each of the said preparations certain labels or trade-marks, which were adopted by the complainant clearly to distinguish his medicines and preparations from all others; that the said labels and trade-marks became universally known to the trade and consumers, so that by them the said preparations were recognized, distinguished and bought; that not only did each of the said preparations thus become known to the trade and consumers by its distinctive name, but the whole of said preparations became known, as a class, by the name of "Stonebraker's Valuable Family Medicines and Preparations;" which name was adopted by the complainant as a general trade-mark, and by which name he at great expense advertised the same; that Samuel Stonebraker, an uncle of complainant, on or about the first day of June 1864, embarked certain capital in said business, and became jointly interested therein with the complainant; that about the middle of May, 1866, the said Samuel proposed to the complainant that if he would transfer the business to Baltimore, he the said Samuel would put $10,000 into the same; that Henry K. Hoffman of said city would put in a like amount; that a partnership could be formed between the complainant, the said Samuel and the said Hoffman, and the said business be thus largely increased; that said proposal was acceded to and an agreement of partnership accordingly entered into. That after the business had been carried on under said agreement for about twenty months, a serious disagreement arose between the partners as to the proper construction of the agreement of co-partnership, that litigation resulted, and finally by agreement a dissolution of the co-partnership.

The bill further showed that by the terms of the agreement of dissolution, the said Samuel Stonebraker and H. K. Hoffman became entitled, among other things, to certain wrappers and labels of the assets of the said firm of Stonebraker, Hoffman & Company, which they were entitled to use only "for re-wrapping medicines coming back in bad order," and that the said Samuel Stonebraker and H. K. Hoffman bound themselves "not to manufacture or imitate Stonebraker's medicines or preparations, or sell any medicines under their names or titles respectively, except stock on hand or in the hands of agents;" and also bound themselves "not to take any interest in or have any interest in the manufacture of said medicines or preparations, or be in any way interested in the manufacture of them, or in the sale of any medicines under their names or titles or in imitation of them." The bill then charged, that at the time of the said dissolution there were on hand, large quantities of the said wrappers and labels, and that the said Samuel Stonebraker and H. K. Hoffman sold or pretended to sell and dispose of the stock on hand, including said wrappers, etc., to Wm. P. Clotworthy and Leonard Passano, with the full knowledge that said Clotworthy and Passano would, and with the fraudulent design and intention that they should, use the said wrappers, etc., for purposes for which, by force of said agreement, the said Stonebraker and Hoffman were not permitted to use them, to wit, upon articles to be manufactured by Clotworthy and Passano in imitation of the preparations of the complainant; that the said Clotworthy and Passano and the firm of Clotworthy & Company, consisting of said William P. and Charles A. Clotworthy, had since said sale, with the full knowledge, approbation, participation and encouragement of the said Stonebraker and Hoffman, manufactured large quantities of articles in imitation of and counterfeiting some of the preparations of the complainant, and used upon the same the said wrappers and labels, and had offered the said imitations for sale as and for the genuine preparations of the complainant.

The bill further charged that the said Clotworthy and Passano, not content with imitating the complainant's preparations forthe purpose of exhausting the wrappers aforesaid, had fraudulently confederated with Abraham S. Stonebraker, a brother of the complainant, to manufacture and sell upon an immense scale imitations and counterfeits of the complainant's medicines and preparations; that in pursuance of said fraud the said Clotworthy & Company and Passano, had manufactured immense quantities of said imitations, and had had printed and placed upon said imitations and counterfeits the said labels or trade-marks of the complainant, or counterfeits thereof, so slightly and colorably varied from those of the complainant as to give evidence of the most deliberate design to defraud the complainant, and to impose upon and deceive the trade and consumers, by inducing them to purchase the said imitations as and for the genuine preparations of the complainant.

The bill further charged, that the said W. P. Clotworthy and Passano had employed the complainant's brother in the business for no other reason than that his name was "Stonebraker," and because they believed that by employing a person of the same name as that of the complainant they could with impunity consummate their intended frauds against the complainant and the public; that the said Samuel Stonebraker and H. K. Hoffman had knowingly and wilfully aided and abetted the said Clotworthy & Company and A. S. Stonebraker in all the frauds charged; and that having reason to believe the same, the complainant charged and averred that the said Samuel Stonebraker and H. K. Hoffman were secretly interested with the said Clotworthy & Company in the manufacture and sale of the said imitations, and the use of the said counterfeits.

The bill prayed that the defendants and each of them might be restrained by injunction from counterfeiting or imitating the trade-marks or labels used by the complainant in and about the sale of "Stonebraker's" medicines and preparations, and from using or issuing any such counterfeited or imitated trade-marks or labels, and from selling or delivering any medicines or preparations whatever with the labels or trade-marks of the complainant in any wise imitated or counterfeited thereupon; and further that W. P. Clotworthy, Charles A. Clotworthy, Leonard Passano and Abraham S. Stonebraker, might discover what quantity of medicines or other preparations had been manufactured and sold by them or either of them, with labels or wrappers containing the name of "Stonebraker," in conjunction with the descriptive name of each of said medicine or preparation, and the prices obtained therefor. The injunction was issued as prayed.

The answer of Abraham S. Stonebraker denied that the complainant was the original maker of the preparations mentioned in the bill, and claimed that he (A. S. Stonebraker) was the original compounder of the same, and that the labels and directions for the said medicines and preparations were written by him and given to the complainant, as then used by him, with only slight verbal alterations from the original form.

The answer of W. P. and Charles A. Clotworthy, trading as Clotworthy & Co., admitted that they had made an agreement with W. P. Clotworthy, Leonard Passano and A. S. Stonebraker, for the manufacture and sale of certain medicines and preparations, known and sold as "Dr. Stonebraker's Medicines and Preparations;" which they averred the said parties had the lawful right to make; they denied all unlawful interference with the rights of the complainant, and all improper use of the labels of the late firm of Stonebraker, Hoffman & Co.; for the rest they adopted the answers of their co-defendants.

The answer of Samuel Stonebraker and H. K. Hoffman, admitted the sale to William P. Clotworthy and Leonard Passano, but denied that they had any interest in the remains of stock or in the business of the late firm of Stonebraker, Hoffman & Co., and denied that they had connived at any fraudulent or improper use of any part of the said remains of stock, or in any imitation or counterfeiting by any person whomsoever of any preparations or medicines, which the said persons had not the right to make.

The answer of Wm. P. Clotworthy and Passano, admitted the agreement with A. S. Stonebraker, to manufacture and sell for their joint account and profit, the medicines and preparations known as "Dr. Stonebraker's Medicines and Preparations," and the purchase of the remaining stock in...