Statement of the Case.

writing was entered into by and between her and the plaintiff Weston, as parties thereto, in and by which, for the consideration of one hundred and fifty dollars, to be paid in equal monthly instalments during a period of five years thence next ensuing, she, the said Abbie A. Pepper, agreed to allow to said Weston, or to any firm of which he then was or might become a member, the exclusive use of the name of Captain Simeon Pepper, in the manufacture of signal oil, as a trademark, and that at the end of said five years, provided said Weston should faithfully keep said agreement, she, said Abbie A. Pepper, would render and yield up to him the said trade-mark for his own use, benefit, and behoof forever.

VI. That said agreement directly upon its execution came to the knowledge of the said Fiske, and said Ketcham, and they each severally ratified the same, and thenceforth all the time of the subsequent continuance of the said co-partnership of F. O. Ketcham & Company, composed of said Frederick O. Ketcham, George N. Weston, and Thomas P. Fiske, as co-partners, they paid the said monthly instalments, and had and used in their business said trade-mark, as herein before set forth.

VII. That said co-partnership, last aforesaid, continued to February 20, 1874, when by written articles of agreement the same was dissolved, the said Weston & Fiske, parties on the one part, and the said Ketcham party on the other, specially retaining and reserving any right or rights either party had in or to said trademark and its use.

VIII. That on or about the said February 20, 1874, the plaintiffs entered into a co-partnership under the firm name of Weston & Fiske, as manufacturers and dealers in oils, at the city of New York, and specially as manufacturers and vendors of said signal oil, and have manufactured and sold the same and

Statement of the Case.

thence, hitherto, used the said device or trade-mark as follows, to wit:

IX. That, on or about the same day, the defendants entered into a co-partnership under the firm name and style of F. O. Ketcham & Company, as dealers in oil, and thereupon gave out to the public and represented themselves as dealers in Capt. S. Pepper's "Extra Signal Oil," and held themselves forth as manufacturers and vendors of said oil.

X. That at and after the time of the death of said Captain Simeon Pepper, no person had any knowledge of the ingredients composing said signal oil, or the mode of compounding them, or the means by which the complete article was produced, except the said George N. Weston and the said Abbie A. Pepper, and they had not, nor had either of them, imparted said knowledge at any time previous to the commencement of this action.

XI. That said defendants have not, nor did they or either of them ever have knowledge of the several ingredients, proportions, and processes necessary to be known to manufacture the genuine article, heretofore and now known as "Capt. S. Pepper's Extra Signal Oil."

XII. That since the said February 20, 1874, to the time of the trial, the defendants have been manufac

Statement of the Case.

turing and vending an oil which they have falsely called, by the name "Capt. S. Pepper's Extra Signal Oil," and have falsely represented such oil, to dealers therein and buyers thereof and the public, as the genuine manufacture heretofore known by and sold under the said name and device or trade-mark, and that they have sold the same under and with the label in manner following to wit:

XIII. That such wrongful actings and doings on the part of the defendants caused loss and damage to the plaintiffs.

And I do find as my conclusions of law:

I. That the defendant Ketcham, has not and never has had any exclusive right to the use of said trademark, and that the defendants have no right or title in or to the said trade-mark, or device, or to the use thereof or to the name of said Simeon Pepper, or to any part thereof.

II. That the plaintiffs are entitled to the exclusive use of the device and trade-mark as now and heretofore used by them in and about their business of man

Statement of the case.

ufacturing and selling the oil, commonly heretofore and now known and called "Capt. S. Pepper's Extra Signal Oil," or "Pepper's Signal Oil," and the exclusive use of the name "Captain S. Pepper," on any manufacture of oil, and to all parts of said name.

III. That the plaintiff's are entitled to judgment enjoining and restraining the defendants and each of them as prayed for in the complaint, and in accordance with these findings and conclusions.

IV. That the defendants shall upon oath, deliver up, under the direction of a referee, to be appointed. by the court, all labels, devices and marks and materials, for making or printing such labels and devices, now in the possession or under the control of the defendants, bearing the name of Capt. S. Pepper, or any part of said name, as designating any manufacture or pretended manufacture of oil or other illuminating substance.

V. That the plaintiffs by reason of the wrongful acts of the defendants have sustained damages which should be ascertained by a referee to be appointed by the court, to the end that upon the coming in of his report, final judgment shall be entered in this action for the relief hereby adjudged to the plaintiffs, as well as for such damages, if any, reported by said referee, together with the costs of this action, and costs of any reference pursuant to these findings and conclusions.

VI. That the plaintiffs are entitled to, and I do order judgment accordingly, dated June 16, 1874.

The following opinion was delivered at special term: SPIER, J.-The action is brought against the defendants for violating the plaintiffs' trade-mark, consisting of a circular label or stamp, marked and letters "Captain S. Pepper's Extra Signal Oil." An arrangement had been made by which the parties, plaintiffs and defendants, had jointly as copartners, manufac

Appellants' points.

tured this oil and the factory was known and published, "F. O. Ketcham & Co., Manufacturers." The defendants claimed not only to have knowledge of the secret process of making the oil, but also that they, in their arrangement with the plaintiffs and the original inventors for carrying on the business, had made a contract by which they had the right to use the trademark, and were in fact owners of it and the secret.

After the dissolution the defendants continued to make what they called "Captain Pepper's Extra Signal Oil," and to use the trade-mark.

The plaintiffs brought their suit to restrain defendants, by injunction, claiming that they were the proprietors of the trade-mark, and were alone possessed of the secret process of manufacturing the oil, and alleging that the defendants were making a spurious article and selling it in the market for the genuine oil.

The co-partnership arrangement made by the parties, was for the purpose of carrying on the business of making and selling this oil.

The compounding the ingredients was by arrangement exclusively intrusted to the plaintiffs as their special business in the copartnership, while the selling of the oil, and other labor necessary to create a market, and the taking all necessary steps in preparing it as merchandise merely, was the defendants' department.

I have no difficulty in finding that the issues in the pleadings have been clearly made out by the evidence in favor of the plaintiffs, and that they are entitled to the judgment asked for in the complaint.

Frank Warner Angel, attorney, and of counsel for appellants, among other things urged;-I. Weston took the trade-mark as trustee of the firm (Mitchell v. Read, 61 Barb. 310; Colly. on Part. § 179; Smith Merc. L. 54; Featherstonhaugh . Fenwich, 17 Vt.