Nessle v. Reese , 1867 N.Y. App. Div. LEXIS 106 ( 1867 )

By the Court, James C. Smith, J.

This case was argued by the counsel for the appellants principally upon the ground that the judge who tried the cause erred in holding that the plaintiffs are not entitled to relief by injunction against the breach of the covenants of the defendants. Beese, for the reason that the damages for the breach of those covenants are .fixed and liquidated-by the terms of the agreement.

In: the view which I take of the case it is unnecessary to consider the proposition above stated, for even if we should concur in it, the plaintiffs would not be entitled to a reversal of the judgment, upon the facts found by the judge.

. The gist of the- action is the alleged use by the defendants of the secret process of enamelling which Beese covenanted not to use or divulge, and the exclusive right to use which, the plaintiffs claim to have acquired from Beese by purchase. Unless it is established that the defendants, some or one of them, are using the saíne secret process to which the covenants relate, or that they threaten or intend to make the secret known, contrary to the stipulations of Beese, there is no ground whatever for the exercise of the equitable jurisdiction of this court. Neither of these facts is found by the judge who decided the case. The nearest approach to them is the finding that the defendant Hudler has been and is carrying on the iron -ennamelling business in the city of New ■' York, and that the defendant Henry Beese is working in the employment of said Hudler, in said business.

It appears by the case, that on the trial, the • plaintiffs re- • quested the judge to find that the defendants, conspired to violate the provisions of the ..agreement referred to, and in pursuance of such conspiracy have been and still are engaged in the business of mixing, and applying porcelain enamel to hollow and other iron wares according to the said secret process and method, and that the knowledge of Eeese and his wife in regard to said secret process is used in and about said business, but the judge refused to find in accordance with such request. The plaintiffs’ counsel excepted to the refusal, and this raises the puestion whether the refusal was erroneous ; or, in other words, as the refusal is equivalent to a finding against the plaintiffs upon the point involved in the request, the question is whether such finding is unsupported by the evidence, or is against the weight of evidence. On looking into the case, it will be seen that there is no positive evidence that the process in question was used in the business carried on by Hudler. The only testimony on that point, produced by the plaintiff before he rested, was that of the plaintiff himself, who stated some circumstances observed by him in Hudler’s shop, which tended in some degree to show that the process there used was the one in question, but they came far short of establishing the fact. The plaintiff himself summed up his testimony on the point, by saying, “ I should judge from the appearance it must be the same thing. I can’t swear that they enamel according to this same method—but they, look precisely as ours.” The only additional testimony upon the point was elicited from the defendant Eeese, on his cross-examination by the plaintiff. He testified that when he worked for Hubbard in 1863, after the agrreements were made under which the plaintiffs claim, he did the mixing for the enameling there ; that he did not do it according to the way he did before they made a new discovery—and the new discovery was his own secret. He then stated that he afterwards went to work for Hudler and attended to the enameling for him ; but it is at least doubtful from his testimony whether he there used the process in question, or the process which he discovered while in Hudler’s employ. Upon this state of the testimony, the judge would have been justified in findipg that the process in question was not used in Hudler’s business, and it follows that his refusal to find the reverse of that, was not error. The testimony is not so clear and satisfactory as to warrant us in finding the fact contrary to the implied finding of the judge before whom the cause was tried.

[New York General Term, April 3, 1867.

. These views render it unnecessary to examine any of the other questions discussed on the argument, and lead to an affirmance of the judgment.

Leonard, Ingraham and James C. Smith, Justices,]