Mershon Co. v. Pachmayr

McCOMB, J.

From a judgment in favor of defendants after trial before the court without a jury in an action for: (1) an accounting, (2) damages based upon such accounting, and (3) an injunction against defendants to prohibit unfair competition, plaintiff appeals.

Facts

On June 24, 1936, defendant Frank A. Pachmayr sold his interest in the Frank A. Pachmayr Company to L. E. Mershon, plaintiff’s predecessor in interest. The contract of sale contained the following provision:

“First party or the Frank Pachmayr Gun Shop shall not directly or indirectly manufacture, advertise or sell any competitive articles or article of a similar style, shape or character which can be even remotely associated in style or function with any production or productions which are now being manufactured, distributed, advertised or merchandised by the Frank Pachmayr Company, a corporation, and/or its successors for a period of thirty (30) months, provided, however, that nothing herein contained to the contrary shall preclude the Frank Pachmayr Gun Shop from advertising locally and/ or nationally gun repairs and the alteration or advertising the installation of standard accessories now being advertised and sold and on the market and in connection with said advertising the sale of pistol and/or revolver machine rests may be advertised by the Frank Pachmayr Gun Shop either locally or nationally.”

After the 30-month period referred to in the foregoing paragraph had elapsed, defendant Pachmayr made recoil pads, advertised them in a national sports magazine, and sold them for several months. On plaintiff’s request defendant discontinued the sale of such article.

This is the sole question necessary for us to determine:

Did plaintiff waive any cause of action which it may have had against defendants for unfair competition?

This question must be answered in the affirmative. The trial court-found as follows:

[903]

“That it is true that plaintiff and defendant verbally agreed that if defendant would cease manufacturing a recoil pad with a white line therein that plaintiff would take no further action against defendant; that pursuant to said verbal agreement defendant within a reasonable time, and prior to the commencement of this action, ceased the manufacture of a recoil pad using a white line therein and that defendant has not since, nor is he now, manufacturing a recoil pad with a white line.”