L. E. Waterman Co. v. Waterman

McLaughlin, J.: The complaint in this action alleged in substance that for a number of years the plaintiff had been selling fountain pens manufactured by it under certain letters patent to its customers, under an agreement that they were not to sell the pens purchased by them at less than the price fixed by the plaintiff, unless such customers should first give notice to the plaintiff of their desire so to do, and that in such case the plaintiff should have the first option to buy back all of such pens at cost price; that the plaintiff has over 4,000 customers in the United States, of which over 1,000 reside in the State of New York ; that the defendants, without having been authorized by the plaintiff, and with knowledge of the agreement between the plaintiff and its customers, purchased or surreptitiously obtained from some of such customers quantities of the pens at less than the prices fixed in their agreements with the plaintiff, by “ inducing such customers of the plaintiff to break and violate their said agreements; ” that the names of the customers who have thus violated their agreements are at present unknown to the plaintiff, and plaintiff asks that they be joined as defendants when discovered, in case they shall be [532] within the jurisdiction of the court; that the defendants are selling and offering for sale the fountain pens so obtained by them at less than the prices fixed, to the plaintiff’s damage. The judgment demanded is that the defendants be enjoined and restrained from selling and disposing of the pens manufactured by the plaintiff for less than the established list prices and from hereafter purchasing the same from any of the plaintiff’s customers at less than the list prices ; that the defendants return to the plaintiff the pens now in their custody and control, and that the plaintiff also have judgment for the damages sustained. The defendants demurred to the complaint on the ground (1) that there was a defect of parties defendant, and (2) that causes of action had been improperly united. The demurrer was overruled and the defendants have appealed. We think the demurrer was properly overruled. As to the first ground named, that there is a defect of parties defendant, the allegation of the complaint is “ that the names and residences of such customers are at present unknown to the plaintiff, and plaintiff asks that they be joined as defendants herein, when discovered, in case they shall be within the jurisdiction of this court.” If the allegation of the complaint, in this respect, be true — and, in determining this question, it must be assumed that it is — then the plaintiff could not make such persons defendants. The defendants, however,' by their answer, can set out the names of the parties whom they claim should be made defendants — and then they can be brought in by an amended complaint. There is no other way in which the plaintiff can make them parties. The law does not require an impossibility, neither does it require a plaintiff to make an unknown person a defendant. (Earle v. Scott, 50 How. Pr. 506.) The demurrer was also properly overruled on the other ground, that causes of action had been improperly united. The plaintiff bases its right to maintain the action upon the fact that the defendants, knowing of the existence of the contracts which the plaintiff has with its customers, has induced them to violate the same for the purpose of injuring the plaintiff’s business. But one cause of action is alleged. If several customers have, by reason of the acts of the defendants, been induced to violate their contracts, or if, through their acts, one customer has been induced to make different sales in [533] violation of liis contract, the proof of these facts would simply tend to establish the one cause of action upon which the plaintiff predicates its right to recover, viz., knowingly inducing customers to violate their contracts to plaintiff’s damage. It is suggested by the appellants in the brief filed that the complaint does not state a cause of action. A sufficient answer to this suggestion is that the defendants did not demur upon that ground, and the question is, therefore, not before the court for determination, and we do not consider it. It follows that the judgment appealed from is right and must be affirmed, with costs, with leave, however, to defendants, within twenty days after entry and notice of the affirmance of the judgment, to withdraw the demurrer and interpose an answer to the complaint on payment of the costs in this court and the court below. Yah Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred. judgment affirmed, with costs, with leave to defendants to withdraw demurrer and answer in twenty days, on payment of costs in this court and in the court below.