Lamar, Rankin & Lamar v. Russell ( 1888 )

Blandford, Justice.

It appears that Russell was a clerk in the employment of Lamar, Rankin & Lamar, a firm engaged in the drug business, and that he was the proprietor of a private prescription of his own, known and sold as “ Axle-Grease.” A member of the firm requested him to continue the manufacture of this preparation, for the purpose of sale by the firm, and agreed to pay Russell a royalty on all sales made by them. A considerable quantity was put up by Russell accordingly. This suit was brought to recover a sum claimed by Russell to be due him as royalty.

The testimony of Russell was taken by commission, and he was asked, in. certain interrogatories propounded by the. defendants, to reply-what were the component parts of this preparation, and the proportions of the different parts used therein; in other words, to disclose the whole secret of his preparation. He did testify, in reply to the interrogatories, as to what the preparation would cost, and what the bottles in which it was put up would cost. It was shown by other witnesses that one-half of the profits made on the preparation would be a reasonable royalty; and he recovered that much. The defendants insisted that, inasmuch as he had not answered fully the question above referred to, as to' the parts and proportions used in the manufacture of the preparation, Ms answer to the interrogatory ought to be ruled out. The court overruled this objection, and admitted the testimony. We think the court was right in so doing. If the defendants wanted to know the secret of his preparation, they ought to have made the inquiry before they agreed to pay him the royalty. Having entered into the agreement with Russell to pay him the royalty, without having obtained this information beforehand, they cannot now avail themselves of it as they seek to do in this ease ; and they are bound by their agreement. We think the judgment of the court below refusing a new trial was right; and it is affirmed.