Millbrae Co. v. Taylor

HAYNES, C. Action to enjoin the defendants from using a “trade name,” which it is alleged belongs to the plaintiff (a corporation), and for damages. Findings and judgment were against the plaintiff, and this appeal is taken from the judgment and an order denying its motion for a new trial. An outline of the facts, condensed from the findings, may be thus stated: Some time prior to 1865, the defendant D. O. Mills became and still is the owner of a tract of land in San Mateo county, at the railroad station now, and ever since 1865, known as Millbrae station. From 1865 until August, 1883, A. F. Green and defendant Mills were copartners, engaged in the business of raising and keeping cows of superior quality and breed upon said land, and selling the milk therefrom in the city of San Francisco, said business being conducted, at least since 1875, under the trade name of “Millbrae Dairy”; the word “Millbrae” being compounded of the name of the owner of the ranch (omitting the “s”) and the Scotch word “brae.” In August, 1883, F. H. Green purchased a one-third interest in the cows and other personal property and business, and the firm as thus constituted continued the business until September 1, 1886, under the same trade name. At the date last named the copartnership was dissolved by mutual consent and in the settlement A. F. and F. H. Green took the milk routes and business of selling the milk in San Francisco, with the wagons, horses and appurtenances, and defendant Mills, who was at all times the sole owner of the land, took all the dairy implements, supplies, cows and other personal property at the ranch, and on the same day entered into an agreement with said A. F. and F. H. Green whereby he agreed to sell to them and they agreed to buy, not less than two hundred apd seventy nor more than three hundred and ninety gallons of milk per day, at a price therein specified, the milk to be thus furnished by defendant Mills to be exclusively from his own dairy, and this agreement was to continue for at least one year. [716]A similar agreement was made each year, the„last being dated September 1, 1889, the quantity named therein being not less than three hundred and sixty and not exceeding four hundred and ten gallons per day. This contract stipulated that it should be in force for at least one year, and thereafter until one of the parties should give the other three months’ notice of his intention to terminate it. About July 1, 1890, A. F. and F. H. Green organized a corporation under the name of the Millbrae Company (the plaintiff herein), and conveyed to it their said business, property and goodwill, they being the principal stockholders therein, and practically owning and carrying on said business through said corporation, and on the 1st of August, 1890, ceased to take milk from defendant Mills under said contract, and thereafter the plaintiff procured from Marin county the milk with which it supplied its customers. Until the formation of the corporation, the business continued to be conducted by A. F. and F. H. Green under the name of the “Millbrae Dairy,” and their delivery wagons were so marked, and that name was printed upon their bills and receipts, upon which it was also stated that the milk was “produced on Millbrae farm, San Mateo county.” After the organization of the corporation, the name on the wagons and bills was changed to “Millbrae Company,” and on the bills it was stated simply “pure country milk, produced from rich pasture, wholesome feed, healthy cows”; without any indication as to the locality except the word “country.” On September 1,1890, the defendant D. 0. Mills commenced the business of selling milk from his said dairy in the city of San Francisco, and engaged defendant Taylor as agent for that purpose, and employed defendant Cole to manage the sale and distribution of the milk in the city; and in this business adopted and used upon his wagons and upon his bills the original trade name, “Millbrae Dairy,” but specified upon his bills and advertisements that the milk sold was from the Millbrae dairy, in San Mateo county, and added: “Do not confound it with the Millbrae Company.” • At the time of the dissolution of the copartnership, a valuation was put upon all the property, and among other items of the city branch of the business, which was taken by A. F. and F. H. Green, was “100 cans’ trade, $4,000.”