Gregory v. Spieker

Britt, C. Action begun October 4, 1892, to enjoin the violation of a contract, and to recover damages for [151]the fraudulent breach thereof. The following facts, among others, were alleged by plaintiff and found by the court below: Defendant owned a liquid compound known as “ Eobert’s Kidney and Liver Bitters” and the formula for the manufacture thereof, and the goodwill of the business of making and vending the same; on January 7, 1884, while engaged in such business at the county of Sacramento, and having then a large sale of such hitters in said county and throughout this state, the defendant made a bill of sale to one Lee, by the terms of which he sold and transferred to Lee all right, title, and goodwill of the said bitters theretofore manufactured by him; also the recipe for manufacturing the same; and all labels, printing matter, boxes, etc., pertaining tó the manufacture thereof. The instrument concluded as follows: “And I furthermore agree not to manufacture or sell any of said Robert’s Kidney and Liver Bitters in this county. J. J. Spieker.” Said Lee was the agent of plaintiff in this transaction, and on the following day, January 8, 1884, he assigned to plaintiff the property and rights acquired by him under said instrument of January 7th. Thenceforward the plaintiff manufactured and sold said bitters, and is yet so engaged.

About February 5,1884, defendant, with intent to injure plaintiff’s business, combined and conspired with one T. M. Lash to manufacture and sell the same bitters under the name of “ Lash’s Kidney and Liver Bitters,” and thereafter for several years such combination, first under the style of T. M. Lash & Co., and later under that of Lash’s Bitters Company, manufactured and sold such bitters in said county and throughout the state; defendant then dissolved his connection with Lash, but, under the style of Lash’s Bitters Company, continued, until the time of the commencement of this action, the same business of making and selling Eobert’s Kidney and Liver Bitters by the name of Lash’s Kidney and Liver Bitters. Defendant fraudulently concealed from plaintiff the fact of his interest in the business of T. M. Lash & Co. and Lash’s Bitters Company, and the fact [152]also that said Lash’s Bitters were compounded of the same ingredients as the said Robert’s Bitters, until he divulged such facts upon the trial of a certain action between him, Spieker, and said Lash in April, 1892, up to which time plaintiff was without knowledge or information thereof. By reason of false representations made by defendant to plaintiff’s customers to the effect that Lash’s Bitters differed from, and were superior to, Robert’s Bitters—he knowing that they were compounded of the same ingredients—said customers, or some of them, were induced to purchase the former instead of the latter, whereby the profits of plaintiff’s business were mostly cut off. Some further history of this same compound, and the dissensions of those concerned in its preparation and sale, may be found in Spieker v. Lash, 102 Cal. 38.