McElwee v. W. T. Blackwell & Co.

Dillabd, J. This was am appeal from the refusal of the court below to submit a particular issue tendered by the plaintiff The action was for violation of a trade mark, and among the facts constituting the cause of action the plaintiff alleged that he was the sole and exclusive owner. This fact was denied by the answer. His Honor submitted an issue touching the controverted fact, and plaintiff requested the submission of one inquiring if plaintiff had not the exclusive -right, what right did he have to the trade mark, and this one was refused on- the ground that no allegation in the-pleadings authorized it. His Honor’s refusal was plainly correct. An issue of fact arises upon a material allegation in the complaint controverted by the answer (C. C. P., § 221,) or upon new matter in the answer controverted in the reply, § 221 (2). The only issue joined on the pleadings was as to the sole and exclusive ownership of the trade mark, and no amendment being moved for, it was not error to refuse the issue as to ownership, other than sole and exclusive, as alleged. The judgment of nonsuit is therefore affirmed and this will be certified. No error. Affirmed.