Smith v. Walker

Pee Curiam. Motion to dismiss an appeal in chancery on the ground that the decree appealed from is not a final decree. The decree perpetually enjoins the defendants, their agents and servants “ from marking, painting or stenciling for sale, and from selling fanning-mills marked, painted or stenciled in imitation of the complainant’s fanning-mill and from using upon fanning-mills manufactured or sold by them, or either of them the words ‘Grain Grader & Seed [458] Separator, Lawton, Michigan,’ in imitation of complainant’s fanning-mills and from, selling or offering for sale fanning mills not manufactured at Lawton, Michigan, in whole or in part as and for the Lawton • fanning-mill, and from and in every manner representing the complainant to be dead or out of business, or that they have succeeded him in business.” It also orders a reference to a circuit court commissioner “to take an account of the number of fanning-mills sold by the said defendants or under their direction since the 8th day of January, A. D. 1881, on which were the words £ Grain Grader & Seed Separator, Lawton, Michigan,’ and to take an account of the profits thereon, and for the better taking of such account to examine the evidence taken herein as to the number of such fanning-mills so sold with such words thereon and to call any witnesses necessary therefor and to report the number so sold with the full amount of profits thereon to this court without delay for the further action of this court, until which time all further order and direction is reserved.” This decree is a final decree within our former, decisions. Lewis v. Campau 14 Mich. 458; Kingsbury v. Kingsbury 20 Mich. 214; Barry v. Briggs 22 Mich. 201; Damouth v. Klock 28 Mich. 163; Shepherd v. Rice 38 Mich. 556; McCombs v. Merryhew 40 Mich. 721; Taylor v. Sweet id. 736; Arnold v. Bright 41 Mich. 207; Tawas &c. R. Co. v. Iosco Circuit Judge 44 Mich. 479; Simon v. Schloss 48 Mich. 233; Morey v. Grant 48 Mich. 326; Witbeck v. Chittenden 50 Mich. 426. The decree grants to the complainant the principal relief prayed for in his bill, and gives him the immediate benefit of the judicial action by an injunction that in effect puts an end to defendants’ business. The only ground suggested for a contrary view is, that hereafter when the accounting is complete there must be a further decree. But it is not unprecedented that there should be two decrees in the same case which are final in the sense ■of finally determining rights; and when the effect is such that the party obtaining the decree is immediately put in possession of the right adjudged to him, the right to appeal ought not to be questionable. Any other view would some [459] times, in a case like the present, inflict irreparable injury witli no means in the law for redress. No method is provided by statute or by the practice of the courts in this state whereby such mischief could be prevented otherwise than by appeal. Appeal from Yan Burén. (Mills, ¿T.) April 9-10. — September 29. Injunction bill. Defendants appeal. Reversed. Lester A. Tabor and Henry F. Severens for complainant. For definition of good will, see Morga/n v. Schuyler 79 N. Y. 490; Crutwell v. Lye 17 Yes. 335; Boon v. Moss 70 N. Y. 473; Sander v. Iloffman 64 N. Y. 248 ; Glen & Hall Mfg Co. v. Hall 61 N. Y. 226: it follows the ownership of the business: Pars. Part. 262; and see 3 Kent’s Com. 64; Hammond v. Douglas 5 Yes. 539; Crawshay v. Collins 15 Yes. 224; Featherstonhaugh v. Fenwick 17 Yes. 312; Lewis v. Langdon 7 Sim. 421; Staats v. Howlett 4 Den. 559 ; 2 Lindl. Part. 855; Kellogg v. Totten 16 Abb. Pr. 35 ; Mitchell v. Bead 19 Hun 418 ; Cassidy v. Metcalf 1 Mo. App. 593 ; Davies v. Hadgsan 25 Beav. 177; Chittenden v. Wiibeck 50 Mich. 401; a partner cannot, on retiring from a firm which he went into for a limited time, claim an interest on the good will of the business: Van Dyke v. Jackson 1 E. D. Sm. 419; Austin v. Bays, cited in Lindl. Part. § 864; Dimon v. Hazard 32 N. Y. 65 ; Ilowe v. Laurence :9 Cush. 556; Bullitt v. Chartered Fund 26 Penn. St. 108; Quimlivan v. English 42 Mo. 362; the full abandonment of a trade-mark requires the intent to abandon it: Lemoine v. •Canton 2 E. D. Sm. 343: American Trade-mark Cases 142, Sold v. Ceisendorf Cox’s Manual &c. 367; an acquiescence by the owner of the trade-mark in its use by another, is in the-nature of a revocable license, and confers no rights after the license is withdrawn: Amoskeag Manf. (Jo. v. Spear 2 Sand. 599; an acquiescence in the use of a trade-mark for twenty years by others does not preclude the owner from enforcing1 his sole right: Gillott v. Esterbrook 47 Barb. 455 : 48 N. Y-374; see also, Ta/ylor v. Carpenter, cited in American TradeMark Cas. 32; Filley v. Fassett 44 Mo. 173; Comstock v. White Am. Trade-Mark Cas. 232; Kidd v. Mills Cox’s Manual 437; Austen v. Boys 24 Beav. 503, 2 Lindl. Part. 863; if a name indicating the nature of a machine also defines ownership or possession it may be registered as a trademark and cannot thereafter be used by any other person to> describe articles of the same kind: Messerole v. Tynberg, Am. Trade-Mark Cas. 479; Burnett v. Phalón id. 376;. Newman v. Alvord id. 404: 51 N. Y. 189; McLean v. Fleming Cox’s Manual 326: 96 IT. S. 245; Caswell v. Ba/ois Am. Trade-Mark Cas. 429 ; see also Wolfe v. Goulard id. 226; Merch. Banking Co. v. Merch. Joint Stock Go. 26 Eng. 346; Hirst v. Denham 3 Eng. 833; Witherspoon v. Cwrrie id. 29 ; the following cases, among many others, fully sustain complainant in the use of his trade-mark: Godillot v. Harris 81 N. Y. 263; Coats v. Holbrook Am. TradeMark Cas. 20 ; Barrows v. Knight id. 238; Binninger v. Wattles id. 318; Dixon v. Guggenheim id. 559 ; Morrison v. Salmon id. 643; Halloway v. Halloway id. 662; Davis v. Kendall id. 112; Knott v. Morgan id. 637; Perry v. Truefitt id. 644; Hier v. Abrahams 82 N. Y. 520; Congress Spring Co. v. High Rock Spring Go. 45 N. Y. 291; Colman v. Crump 70 N. Y. 573 ; Holmes v. Holmes 37 Conn. 278 ; Croft v. Day 7 Beav. 84: Am. Trade-Mark Cas. 649 ; Sykes v. Sykes 3 B. & C. 541; Burgess v. Burgess 17 E. L. & Eq. 257 : Am. Trade-Mark Cas. 664; Clark v. Clark 25 Barb. 76 ; Bradley v. Norton 33 Conn. 157 ; Gillott v. Kettle 3 Duer 626; Walton v. Crowley 3 Blatch. 440; Selchow v. Baker 93 N. Y. 60: Carnal Co. v. Clark 13 Wal. 311; Mfg. Co. v. Trainer 101IJ. S. 51; no one can sell his goods as those of another aside from any rights under a trade-mark: Bloss v. Bloomer Am. Trade-Mark Cas. 200 ; Partridge v. Menck id. 72; Williams v. Johnson id. 214; Rodgers v. Nowill id. 660 ; Lee v. Haley Cox’s Manual, 184; Williams v. Johnson id. 85; Shrimpton v. Laight id. 69; Taylor v. Taylor id. 70 ; Knatt v. Morgan id. 26; Glenny v. Smith id. 140; Coffeen v. Burton id. 52; Singer Mfg. Go. v. Beiil id. 409 ; Morgan Saw Co. v. Troxell id. 144; Thorlefs Cattle F'ood Co. v. Morram id. 395; Cooley on Torts 361. [459] This is very different from a case where an accounting • necessarily precedes the main redress. Enos v. Sutherland '9 Mich. 148. The accounting in this case is not even necessarily incidental to the main relief which was prayed; it is in the nature of a separate suit, and might well have been left to a suit at law. The motion to dismiss is denied. 'George W. Lawton and Edward Baeon for defendants appellant. A bill of complaint suppressing the real relations between the complainant and defendant should be dismissed : Story’s Eq. PI. §§ 241, 242, 249, 251; Leather Cloth Co. v. Am. Leather Cloth Co. 11 H. L. Cas. 523 ; Booth v. Thompson 49 Mich. 13; Elliott v. Amazon Ins. Co. 49 Mich. 519; Lawton, Mich, being a post town cannot be appropriated as ■a trade-mark: Canal Co. v. Clark 13 Wal. 311; Candee v. Deere 54 111. 439 ; Glendon Iron Co. v. Uhler 15 Penn. St. 461; Weatherspoon v. Currie 3 Moak (Eng.) 29; “ Grain Grader and Seed Separator ” being words descriptive of the ■quality of the machine cannot be appropriated as a trademark : Caswell v. Davis 58 N. Y. 223 ; Taylor v. Gillies -59 N. Y. 333 ; Boget b. Eindleter 1 Eng. 653 ; Cooley on Torts 361; Charvim v. Walker 22 Eng. 524: 5 Ch. Div. 850 ; Mfg. Co. v. Trai/ner 101 II. S. 51,54; Boyal Baki/ng Pow■der Co. v. Sherrell 93 N. Y. Pep. 334; Enoch Morgan Sons c& Co. v. Troxell 89 N. Y. 298; Cape v. Evans 9 Eng. 681; Chronvnslay v. Cohn 39 Cal. 501: Am. Pep. 416; Yarn, Beil v. Prescott 82 N. Y. 630 ; words have their •ordinary meaning: Leoni v. Ta/ylor 20 Mich. 154 \ L. S. <& M. S. B. Go. v. People 46 Mich. 211: 1 Bl. Com. 59; dissolution of a partnership does not deprive a partner of his interest in the good-will of the business or in a trade-mark: Uuwer v. Dannenhoffer 82 N. Y. 501; Hazard v. Cas■well 93 N. Y. 263; Hall v. Burrows 4 De G. J. & S. 150; Bury v. Bedford id. 352 ; Wile oxen v. McCrary 38 N. II. Eq. 461; competition is favored by the courts: Snowden v. Eoah Hopk. Ch. 341; Candee v. Deere 54 111. 439 ; Tab■ouchere v. Dawson 1 Moak 111; partner ssucceed to partnership rights; Hazard v. Caswell 93 N. Y. 262. Sherwood, J. The complainant is a resident of Lawton, -a village on the Michigan Central Railroad, and has been for the last thirty years. The defendant Walker resides at the ■same place, and has since 1810. The other defendant, Imus, resides at Galesburg, about twenty-seven miles distant, and .has since childhood. Besides the. complainant, previous to 1810, W. B. Ledyard & Co, Jesse Smith, Ledyard & Aldrich, E. B. Aldrich, Potts & Aldrich, N. B. McKiney and W. H. Potts & Co. were all more or less engaged in the manufacturing of fanning-mills at Lawton, and some of them quite ■extensively. These parties appear to have all made about [462] the same style and pattern of mill; the complainant making the least number of any of them. Until 1861 he was more or less in the employ of some of these parties, and at that date he commenced the manufacture of mills as his principal business, and had-a shop at Lawton for that purpose. During this period, and until 1870, he did all his own work without the aid of machinery, making from ten to one hundred and twenty-five per year. During this latter period, and in the year 1870, defendant Walker worked for complainant. The mill was called by various names up to this time, and the entire enterprise seems, so far as complainant’s pecuniary interests were concerned, to have been attended -with precarious forebodings and very indifferent success, until he engaged in business with the defendant Walker, with whom he continued in business until January 18, 1881, when the copartnership was dissolved by mutual agreement. The following is the agreement under which they commenced business in 1870: “ This agreement made the twelfth day of February, A. D. 1870, by and between Myron H. Smith, of Lawton, "Van Burén county, State of Michigan, of the first part, and Peter Walker, of the same place, of the second part, witnesseth, that the said Smith, in consideration of the covenants on the part of the party of the second part hereinafter contained, doth covenant and agree to and with the said Peter Walker that he will furnish shops, tools, team and wagon for the purpose of building fanning-mills and selling the same; and the said Peter Walker, for and in consideration of the covenants on the part of the party of the first part, doth covenant and agree to arid with the said Smith to pay for the use of the one-half of the above-mentioned articles the sum of ninety dollars on or before the first day of November, A. D. 187Ó. And ip is hereby mutually covenanted and agreed by and between the said parties hereto that they each shall share equal in all expenses, losses, and gains, and at the expiration of the year’s business the notes that have been taken for the mills sold shall be equally divided between the parties above mentioned. In witness whereof, we have hereunto interchangeably set our hands and- seals the day and year first above written.” After making - this contract, and on the 29th of March, [463] complainant obtained a patent for an “ improvement in grain separators,” which he and Walker used in the construction of the mill they made, and several other changes and improvements were subsequently made by them, which they used to advantage in the sale of their mills. It also appears that the name of the mill was changed, as the parties inter, ested thought best for their interest. It clearly appears that after the formation of the copartnership between Smith and Walker the business was prosecuted with much greater vigor than before, and considerably -extended, and the record shows that during the ten years the partnership lasted they manufactured and sold.quite ten thousand mills, seven hundred of which were sold the last year. On the 4th day of January, 1871, the copartnership between Smith & Walker was continued under the following agreement: “ This agreement, made the fourth day of January, A. D. 1871, by and between Myron A. Smith, of the one part, and Peter Walker, of the other part, witnésseth as follows, to wit: The said Smith and Walker do hereby agree each with the other to form a copartnership for the purpose of manufacturing fanning-mills or other implements or articles to sell, each to be to one-half the expense for stock, manufacturing and selling the mills or other articles or implements. Each to individually furnish for the use of the company one pair of horses, harness and wagon, complete. If either should lose a horse he is to buy one and pay for it out of company money, and the loser shall refund the money so advanced on or be-, fore the first day of November, 1871, without interest. Smith is to furnish shop, tools, and barn, for the rent of one-half'of which Walker is to pay Smith the sum of forty dollars on or before the first day of November, A. D. 1871. They are equally to share all losses (excepting the loss of a horse or horses) and expenses, and are to share equally in all gains, and the tokens for the sale of mills or other manufactures are to be equally divided at the option of either party. Smith and Walker own jointly one two-horse lumber wagon, with red box, whiffietrees, and neck-yoke belonging thereto; also one set of new bob-sleds. In witness whereof, the parties hereto have interchangeably set their hands and seals the day, ■ and year above written.” The partnership continued under this agreement until the [464] 14th day of December, 1874, when the following agreement was entered into: “ This agreement, made the fourteenth day of December, A. D. 1874, by and between Myron H. Smith, of one part, and Peter Walker, of the other part, witnesseth as follows, to wit: The said Smith & Walker do hereby agree, each with the other, to form a copartnership for the purpose of manufacturing fanning-mills, or other implements or articles to sell; each to be to one-half the expense for stock, manufacturing and selling the mills or articles or implements; each to individually furnish for the use of the company one pair of horses, harness, and wagon, complete; each to run all risk on his own horses. All other horses, wagons, and harness to be owned and paid for (as they are now) by the said Smith & Walker equally. Myron H. Smith is to furnish the shop and barn on the premises owned by him, also three-fourths (f) of the lot east of said shop (rented by him Of Mrs. Kennedy), for the rent of one-half of which Peter Walker is to pay Myron H. Smith one hundred and five dollars annually. Myron BL Smith to run all risks on said buildings. They are equally to share all loses (except on horses and buildings, as stated before) and expenses, and are to share equally in all gains; and the notes or other tokens for the sale of mills or other ■manufactures are to be equally divided at the option of either ■party. Myron BE. Smith sells to Peter Walker a one-half interest in the following machinery, at the following prices, viz.: One large cut-off saw table, with arbor and boxes and saw belonging thereto, and double pulley tighteners, price......- $73 00 One turned shaft, 4 feet 8 inches long, 1 11-16 inches diameter, with boxes for same, and one wood driving pulley 23 inches in diameter, two wood driving pulleys 48 inches in diameter, and one single pulley tightener, price - - - - 17 00 Twelve feet 1 11-16 turned shaft, - - - 8 52 Two oil fountain hangers, 111-16x13, - - - 13 84 'One iron pulley, 15x6£xl 11-16, - - 5 50 “ “ “ 24x4£xl 11-16, - - - - 6 45 “ “ “ 30x4fxl 11-16, ... 8 50 'Two “ slip collars,......2 40 'Thirty and 3-12 feet 6-inch leather belt, thirty-nine feet 5-inch leather belt, and thirty-one and one-half feet 4^-inch leather belt, - - - 41 84 [465] Eleven and 3|-12 feet leather belt, on jack, ~ $3 08 ■One large movable saw table, with l|-inch arbor for sticker head (and bit-hole for boring machine). With said saw table and arbor are the following attachments : One dado head, with three sets of bits belonging thereto; one matcher head (3-inch slot for bits); one pair 3-inch jointer irons ; four each £, •£, and ¿-inch matcher irons; one long and two short turned collars; one 12-inch coarse ripsaw and three .cast wrenches, - - - 75 00 One movable saw table, next in size to the above, with 1-J-inch arbor for sticker head, and one 10-inch fine cross-cut saw,..... 45 00 One 10-inch circular saw, 6 gauge, extra thickness, for mortising sieve-frames, - - - - 4 00 One 12-inch fine rip circular saw, - - - - 2 90 One 8-inch fine cross-cut circular saw, - - - 1 25 One 10-inch fine rip circular saw, - - - 1 25 One cast circular head, with saw for cutting wind-holes in side-boards and ear-pieces, - - 7 00 One boring attachment to large movable saw table, 15 0© One foot mortising machine, with all chisels, gouges, and punches belonging thereto, - - - 20 00 “ For a orie-half interest in the aforementioned machinery Peter Walker has paid Myron H. Smith one hundred and seventy-five and 77-100ths dollars; payment in full for the same is hereby acknowledged by said Myron EL Smith. The following articles of machinery are owned equally by the parties hereto (having been purchased equally by them previous to this date), viz.: One cast-iron bed for jointing and matching, with four springs and rollers belonging thereto ; •one frame, arbor, and saw for mortising safes; one blacksmith’s iron vise; one concave circular saw ; all 2£ inch leather belting. “ It is further agreed that all machinery bought in future shall be paid for and owned equally by the said Smith and Walker, and that a list of all such machinery shall be kept by each of the parties hereto. “It is further proposed by the said Smith and Walker to erect a building 19x20 feet on the east side of the shop owned by Myron EL Smith; said building to be paid for and owned equally by the parties hereto. “ It is further agreed that all taxes on the property belonging . to the company shall be paid equally by the parties hereto. [466] “ It is further agreed that all damage done to the property of the company by fire or otherwise shall be equally borne by the parties- hereto. “At the dissolution of the company Myron H. Smith reserves the right to take back the boring attachment to large movable saw table at fifteen dollars ($15), and the foot mortising machine, with all chisels, gouges and punches belonging thereto, at twenty dollars ($20). ■ “ This copartnership may be dissolved by either of the parties hereto at the close of any year’s business, and the property sold or divided as may be agreed upon between them. Mtron H. Smith, Peter Walker. Witness: F. B. Adams.” This was the last written agreement of copartnership between Smith and Walker, which continued until January 18 1881. The following property was taken by Walker on the divijion of the partnership property of Smith & W alker at that date: One horse, 1 peddling wagon, with rack, 2 sulkies, 2 light cable chains, 10 or 11 fanning-mills, 3 to 5 fanning-mill woods, complete; a quantity of parts of mill-woods, 2 or 3 sets of castings and wrought-irons; parts of 8 or 10 sets of irons, suspenders, and braces; 703 feet of wire cloth, 500 lfxll-inch carriage bolts, 150 other bolts, a quantity of small staples, 3000 or more; 2£ gross screws, 2 one-pound papers clout-nails, one dozen papers £-ounee tacks, 3 lbs. lamp-black, 100 lbs. nails, 100 lbs. vermilion primer, 200 or more shipping-tags, 20 gals, varnish; 10 cans of different sizes. The following bill of sale was made and executed by defendant W alker, and thereupon the following dissolution notice was signed by both Smith and Walker. “ This is to certify that I have sold to Myron H. Smith, of Lawton, my undivided one-half interest in boiler, engine, and all pipes, etc., belonging thereto, and all other machinery, wrenches and fixtures belonging thereto, in his shop < on lot 9, block 9, D. O. Dodge’s addition to the village of Lawton; also the buildings and steam-box on lot eight (8), block nine (9), D. O. Dodge’s addition to the village of Lawton; also [467] 3883 feet bass-wood lumber at S. H. Jones’ mill; also all lumber in and around the above shops, excepting my one-half interest in a quantity of ash-shafts 2£ x 2|-inch square, in the shed on lot eight (8), block nine (9), as above described. I hereby acknowledge having received six hundred and sixty-nine 55-100 dollars ($669 55-100), payment in full for my undivided one-half interest in the above-described property. Peter Walker. Lawton, Mich., January 18, 1881.” “ Dissolution of .Copartnership. Notice is hereby given that the copartnership heretofore existing under the firm name of Smith & Walker is this day dissolved by mutual consent. All accounts due said firm, and all claims against them, will be settted by Myron H. Smith, who will continue the business at his factory, formerly occupied by the old firm. Lawton, January 18, 1881.” The defendant Walker, during the continuance of the co-partnership, did the most of the selling and looked after the business generally, and the complainant attended mainly to the manufacture of the mills and making them ready for sale. ' In 1878 complainant and defendant Walker took into their service the defendant Imus, and gave him as compensation a portion of the proceeds of the business. He continued in business for Smith & Walker, if not in partnership with them, until the firm of Smith & Walker was dissolved, as above mentioned. He had also sold mills for Smith & Walker during the seasons of 1872, 1873, 1876, and 1877 ; and on the dissolution of that firm he and Mr. Walker forfned a copartnership, and under the name of Walker & Imus have continued the business of making and selling fanning-mills, making Lawton their headquarters and place of business up to the present time. The complainant also continued in the same kind of business at his shop in Lawton until the time of filing his bill of complaint in this cause. The mill made and sold by the complainant was the same as formerly sold by Smith & Walker, and contained, besides the improvement patented, some other’ changes made by Smith & Walker, and had, most of the time they were in [468] business together, painted thereon the words, “ Smith’s Grain Grader & Seed Separator: Smith & Walker, Lawton, Michigan; Warranted.” Omitting the words “Smith & Walker,” the complainant continued to use the same words upon his mills after his dissolution with Walker. The defendants also used the same mill Smith & Walker had been using when they commenced business, and had painted thereon : “Improved Grain Grader & Seed Separator; Walker & Imus, Lawton, Michigan ; Warranted.” Both complainant and defendants continued to make and vend in this State the articles severally made by them ; the complainant selling and frequently offering to sell to the ' defendants mills of his manufacture, knowing the use to be made of them, and that they would be sold by them with the inscription of the words they used thereon, until the 28th day of July, 1882, when complainant filed his bill of complaint alleging that he originally started ..the fanning-mill business in which he and Walker were subsequently engaged, and prosecuted it alone until 1870, during which time the mill was known as “Smith’s Lawton Mill,” and under that designation had acquired a good reputation, his mills being sold principally in this State, and he had from small beginnings gradually secured a good business in the fanning-mill trade ; that in 1870, after securing a patent for a certain improvement, he gave to his mill the name, “Grain Grader & Seed Separator, Lawton, Michigan,” and had these words painted on each mill thereafter manufactured and sold by him ; that said mills are distinguished from all other mills in that manner; that such name and words originated with him, and that his mill with such name or designation, and the place of manufacture stenciled thereon, through his labor and capital, and industry and perseverance, has acquired a valuable reputation throughout the State, and he is enabled thereby to make large and profitable sales thereof, and that said name and place of manufacture stamped on said mills constituted his trade-mark in said business; that about 1870 he made arrangements with defendant Walker to assist him in carrying on the business, [469] and that he and Walker continued to manufacture and sell said mills, Walker receiving a share of the profits for his services, and for machinery purchased by complainant and Walker of Walker, until the close of the year 1880, when he complainant) purchased from said Walker all his interest in the machinery and business, and that since that time complainant has conducted the business alone, and has been the sole owner thereof; that said Walker never had any interest in the mill except to share in the proceeds of the manufacture and sale thereof from, year to year, to pay for his services ; that immediately after he purchased the said Walker’s interest as aforesaid, Walker & Imus went to Otsego, in same State, and engaged in the manufacture and sale of mills, using thereon the following words in painted letters, “Grain Grader & Separator, Improved, Lawton, Michigan ; Warranted,” and that they continue so to do; that, as a matter of fact, said firm of Walker & Imus do not, and have not, manufactured any mills at Lawton ; that the name used on complainant’s mill was first brought into use and adopted by him to designate his mill, and is and was his “trade-mark,” and that defendants have no right to use the same upon their mills, neither have they any right to use wagons in the sale of their mills lettered with the words “Lawton, Mich.;” that the use of said trade-mark upon their mills, and said words upon their wagons, is an infringement upon the rights of the complainant, and a deception upon the public, seriously injurious to complainant; that the sale to him by W'alker vested in him the good-will of the business, and that the manufacturing and sale of the mill vended by Walker & Imus is a fraud upon the complainant and an infringement upon his right to the good-will of his mill and the business carried on by him and Walker, and upon his trade-mark, as claimed above; that the complainant has suffered great injury by the sale of defendants’ mill, under representations by them that theirs was the mill made and sold by complainant, and by other fraudulent devices, calculated to falsely represent their mill to be the same mill as complainant’s. The bill prays for an in junction restraining defendants from mak [470] ing or vending the claimed assimilated mill of defendants, and preventing them from using the pretended trade-mark, and for an accounting to complainant for his alleged injury ' in the premises. The defendants, in their answer to the bill of complaint, say that Ledyard & Aldrich, Bonsteel & Co., and William H. Potts & Co. were all manufacturers of fanning-mills at Law-ton many years before 1870, and that the complainant acquired what knowledge he had of the business by working as a hand in the shops of some of these parties, and some time previous to 1870 set up business for himself in a very small way, and so continued until 1870, not making in any one year more than one hundred and twenty-three mills; that the mill he made was modeled after those that had been made in Lawton for many years before, by those in whose employ he had served ; that there was no originality in the mill made by complainant, except such as he secured letters patent for, by way of an improvement hereinbefore referred to. They deny that such improvement was patented under the name and designation of “Grain Separator,” but aver that the patent was obtained for an improvement in a class of machines designated at the patent-office and elsewhere as “Grain Separators & Graders;” they deny that the complainant, on obtaining his letters patent, adopted and applied to his mill the name “Grain Grader & Seed Separator, Lawton, Michigan,” or that these words were afterwards stamped upon each mill sold by him, or that complainant, after or during 1870, manufactured any mills by himself or others, but aver that he entered into a partnership with defendant Walker to manufacture such mills, and that such partnership and business continued uninterruptedly until it was dissolved in 1880, and that during said partnership the defendant Walker, with the complainant, designed names and marks to put upon their mills, and that while their mill was known by the name of the class of machines to which it belonged, and generally but not always had painted thereon with them the words “Grain Grader & Seed Separator,” to show that it was adapted to and could do other [471] work than merely separating the chaff and dirt from the grain, yet at no time were these words adopted by the said Smith & Walker as their trade-mark nor as the trade-mark •of the complainant, but, on the contrary thereof, at different times they adopted different names for their mill, at one time calling it the “Queen of the West,” and at others such other name as they thought might be most useful in the business, but without any intention or understanding that it should be their trade-mark. They further aver that said Smith & Walker never had any trade-mark. They further aver that said words “Grain Grader & Seed Separator,” the same being merely descriptive of the work done by said mills, and being also in use by other manufacturers of machines to designate and make known the kind of work done by it, could not be legally appropriated by said Smith or said defendants as a trade-mark. The defendants admit that Walker sold his interest in the machinery to complainant, but deny .that Walker sold to said Smith his interest in the business of making fanning-mills at Lawton or elsewhere, or that there was ever any understanding between Smith and Walker to that effect, or that the defendants have injured the business of complainant, or that he has suffered any damage at their hands. Defendants further say that the direction of the business is from Lawton, and always has been, where Mr. Walker resides, and that about the same method pursued by Smith & Walker in making and getting their mills upon the market has been adopted by Walker & Imus. They further say, in competing for the sale of their mill, they have never allowed their agents to take any unfair advantage of the complainant. Notwith. standing complainant’s competition has been strong, they have always treated him and his business with courtesy. A very large amount of testimony was taken upon both sides, much of which might have been very properly omitted, and thereby a large expenditure of money would have been saved to the parties, and the courts relieved from a great deal of unnecessary labor. The cause was heard on the pleadings and proofs taken at [472] the Yan Burén circuit, and the injunction prayed for was granted, and an accounting ordered taken before a circuit court commissioner of the number of mills sold by defendants, and the number thereof containing the words painted thereon, “Grain Grader & Seed Separator; Lawton,. Michigan,” and to take an account of the profits thereon. The' following is the decree to make the injunction perpetual, and the terms thereof: “This cause coming on to be heard upon the pleadings filed and the proofs taken therein, and the pleadings and proofs having been read and the counsel for the respective parties having been heard, and the court being fully advised in the premises, on consideration thereof doth adjudge and decree that the said defendants, Peter Walker and James H. Imus, and their agents, employes, and servants, be perpetually restrained (1) from making, painting, or stenciling, for sale, and from selling fanning-mills marked, painted, or stenciled in imitation of the complainant’s fanning-mills; (2) and from using upon fanning-mills manufactured or sold by them, or either of them, the words ‘Grain Grader & Seed Separator, Lawton, Michigan,’ in imitation of complainant’s fanning-mills ; (3) and from selling or offering for sale fanning-mills not manufactured at Lawton, Mifchigan,. in whole or in part as and for the Lawton fanning-mill;. (4) and from and in every manner representing the complainant to be dead or out of business, or that they have succeeded him in business.” The defendants both appeal to this Court. The complainant does not claim or charge expressly that defendants are or have been using his patent in their mills, or have infringed upon it; but his claim is that he is the owner of what he calls his trade-mark, consisting of the words hereinbefore given, and the good-will of the business, which had been brought into existence by the energy and skill used by himself and the defendant Walker; and that he has been deprived of the same largely since he dissolved his partnership with Walker by the defendants, who have pirated both, by assimilation, misrepresentation, and fraud in making and selling their mills.' And counsel for complainant further insist that the facts established by the evidence clearly show that Smith was the original owner of the enter [473] prise of manufacturing and selling fanning-mills at Lawton, and that Walker, while he was in business with complainant, was merely the' tenant of what Smith put in, including the good-will and trade-marks of the business ; or, if this be not so, if Walker is to be regarded as the owner of any interest in the foundation of the business, then he transferred it to Smith at the 'time of their dissolution ; and that this latter position is strengthened by the application of the doctrine that when one partner sells out his interest in the corporeal effects of a going trade, he, by implication, sells his interest in the good-will of the business. Lawton at an early day, it appears from the record, became noted, if not famous, for its manufacture of fanning-mills, and the “Lawton Mill” seems to have been, to a greater or less extent, a term applied indiscriminately to all of them by the manufacturers, among whom the plaintiff seems for many years to have ranked least; and so far as the term “Grain Grader Seed Separator” is concerned, the complainant seems never to have applied it to the mill he made, except on án occasion of a fair held at Paw Paw, where he was exhibiting his mill for inspection and premium, until' after he entered into partnership with Walker for the purpose of making and selling fanning-mills; that previous to that time the testimony tends very strongly to show that neither the plaintiff’s mill, nor the amount of business he had done in making and vending the same, had been sufficient to give it any peculiar characteristics, reputation or advantage over any other mill made at Lawton, by reason of any particular name or mark used thereon, or for any other reason. The trade-mark claimed by the complainant as his exclusive property seems never to have received a registration at the patent-office; neither does the record show that complainant ever made any application therefor. Such being the fact, so far as the relief complainant asks for relating to the alleged infringement of his claimed trade-mark is concerned it depends entirely upon his common-law rights. By the common law, “every manu. facturer, and every merchant for whom goods are manufac [474] tured, has an unquestionable right to distinguish the goods that he manufactures or sells by a peculiar mark or device, in order that they may be known as his in the-markets for which he intends them, that he may thus secure the profits that their superior repute, as his, may be the means of gaining.” And it is well settled that a manufacturer or vendor may, by a priority of appropriation and adoption of names, marks, letters or other proper and appropriate symbols, so distinguish his manufactures from others as to acquire a property therein as a trade-mark; but not, however, until he has given it out and published it to the community as his, and that he has adopted it as an original thing, or has in some way become the lawful owner thereof. Stokes v. Landgraff 17 Barb. 608; Williams v. Johnson 2 Bosw. 6; Amoskeag Manuf’g. Co. v. Spear 2 Sandf. 599. Chief Justice Cooley, in his work on Torts, says : “In general, a man may adopt for a trade-mark whatever he chooses ; but when he asserts and seeks to enforce exclusive right therein, it becomes necessary to ascertain whether it is just to others that this be permitted. If the name, device, or designation is purely arbitrary or fanciful, and has been first brought into use by him, his right to the exclusive use of it is unquestionable.” Cooley on Torts, 361, and see cases cited. “But the mere designation of a quality cannot be appropriated as a trade-mark.” Caswell v. Davis 58 N. Y. 223; s. c. 17 Am. Rep. 233; Candee v. Deere 54 Ill. 439; Burleev. Cassin 45 Cal. 467; Taylor v. Gillies 59 N. Y. 331. “Neither can any general description by words in common use, of a kind of article, or of its nature or qualities, * * * nor can the name of a place be appropriated as a trade-mark as against others who may see fit to engage in the same business at the same place.” A trademark, when adopted, may be lost by being suffered without objéction to come into common use in the trade, and rights under it may be waived as against those using it with the knowledge of the owners, and without objection, though such use has not become general, and it can only be sold with the business to which it was intended to apply. Cooley on [475] Torts, 363, 364, and cases cited; Van Beil v. Prescott 82 N. Y. 630. Complainant does not claim to have used on any mill he sold previous to obtaining his patent the words he claims as his trade-mark. He says that the words he used before that were “The Lawton Mill.” I do not think the record furnishes any showing that complainant ever adopted these words as a trade-mark for his mill business. It does not show any difference in the construction of mills made at Lawton by plaintiff and those made by other parties prior to 1870; neither do I discover any intention on the part of complainant to make the words “The Lawton Mill,” his trade-mark, and therefore dismiss the consideration of any such claim made previous to complainant’s obtaining his patent in 1870. Previous to that time, and on the 29th of March, 1870, complainant formed his copartnership with defendant Walker for the purpose of manufacturing fanning-mills at Lawton, and his partnership with this man in this business and at this place continued uninterruptedly until the 18th of January, 1881. Previous to the commencement of this partnership, and in September, 1869, it appears that Smith, after he applied for a patent on an improvement he had been making, painted upon the mill he manufactured, and which contained the improvement, the words “Smith’s Grain Grader & Seed Separator, Lawton, Michiganand that said mill containing said improvement, and such other improvements as Smith & Walker made, and of which there were several, was the kind that they made- and sold during the existence of their copartnership, using the same words stenciled upon the mill. It is claimed by the counsel for complainant that the words above quoted were his trade-mark; that he had appropriated and adopted them as such ; that he had the legal right so to do, and they were his property, and he had the exclusive right to use them upon fanning-mills; that Walker, by his joint use thereof as complainant’s partner in the business to which they had been applied, acquired no interest [476] in them, although by the efforts of the firm, and principally through his management, the business during the ten years, of its existence increased seven-fold, and the profits in the same ratio ; that Walker never acquired any interest in such ■trade-mark, nor in the good-will of the business thus built up; that if he ever had any such interest he transferred it to. complainant when the firm of Smith & Walker was dissolved,, and Walker gave his bill of sale of property to Smith;. and that these conclusions necessarily follow from the several agreements made between the parties, hereinbefore stated,, and the other facts appearing in the case. The testimony of complainant as to the terms of the contract of copartnership between complainant and defendant Walker, not contained in the written agreements, does not appear to be very much relied upon by complainant’s counsel. That testimony was not admissible under the pleadings in the case. The written contracts contain the agreements of the parties upon that subject, and their rights thereunder must be determined thereby. In the view we have taken of the case thus far, it will readily be seen that the exact relations between complainant and defendant Walker, and the rights acquired thereunder, have very much to do with the equitable rights of these parties. The idea that Walker, under the agreement between him and complainant, was a mere “tenant of what Smith put in, including the trade-marks and good-will of the business,” or that either of the parties had any such understanding, cannot be entertained. It would be doing violence to the simplest construction that can be given to the language used in either of the agreements made by the parties. The relation created by either of the written agreements between the parties was that of copartners, and the business included in the enterprise was that of making fanning-mills. The terms were briefly but clearly stated, and the rights of the parties thereunder must be determined by the law governing that relation. The copartners had agreed to make fanning-mills. No particular mill or kind was named, but the expense 'thereof for stock, manufacturing, and selling the mills [477] was to be shared equally. Smith was to furnish- shop, tools and barn, and Walker was to pay one-half of the rent of the same. In the first and second agreements no particular place was specified, but in the third, the shop and barn were to be those owned by complainant in Lawton, and the partners were to share equally all gains, profits and tokens, and all losses arising in the business. The mill which it was decided they should make was that which the complainant was then manufacturing, and for which he had secured, or was about obtaining, letters patent for an improvement. It was to this mill, with this new improvement made thereto, the ■complainant says he applied to and adopted for the words which he calls his trade-mark, viz., “ Grain Grader & Seed ■Separator.” The complainant, in describing this improved mill which the copartners were to make, says in his bill of complaint: “ The mill so known and designated is constructed different from any other mill manufactured, and in its operation works differently, and cleans grain in a much better manner than any mill manufactured within the knowledge ” of the complainant, “and has advantages for cleaning grain not used or adopted by any other mill or manufacturer ; * * * that •after he applied for his patent, and soon after or about the time he procured the same, he made arrangements with Peter Walker to assist him in the manufacture and sale of his said mills at Lawton, Michigan, so known as the ‘ Grain Grader & Seed Separator,’ and by such arrangements gave to the said Walker a share of the profits in the manufacture and sale of such mills, and he and said Walker, under such arrangements duly made from year to year, duly manufactured ■and sold such mills during each year thereafter until sometime about the year 1874, when he sold to said Walker a portion of the machinery in his said shops, and afterwards ,he and the said Walker purchased other machinery and put in such shops, and under such arrangements, made from year to year, he and the said Walker continued to manu facture and sell such mills until about the close of the year [478] 1880, when he purchased from said Walker all his interest: in such machinery and business.” From this statement of complainant it clearly appears that the new or improved mill was the' one complainant formed the copartnership to manufacture and sell, and not the old one before then made by the complainant. It was this improved mill that was to be made and introduced to the public by the firm, and for which its favor and good-will was yet to be sought and secured. The complainant, it will be noticed, does not speak of Walker’s business relations with him through these ten or eleven years of toil and anxiety as those of partners, nor intimate that he had acquired at any time any interest in the mill or even in the business, save as a mode of payment for Walker’s services, which he claims were rendered only as an assistant to complainant in the sale of mills, and in the conduct and management of the business. He does not even allude to the written agreements, from which alone the character of the business was to be determined and, as we have said, the rights of.the parties were to be adjfisted; but whatever the character of the business may be found to be,, he does, however, admit its continuance until the dissolution, of the copartnership in 1881. I think it satisfactorily appears that it was in the conduct. and management of the business of making and vending-their new and improved mill by the firm of Smith & Walker, with such subsequent improvements made therein by them, and in which the defendant Walker so largely participated, that all of the good-will now claimed by complainant accrued, and all the gain and profits therefrom were-derived, and that each of the copartners was entitled to an-equal share therein, and that they became each entitled to share equally in the ownership in said mill, exeept as to the interest in the patented improvement. This,, however, it would appear had been so much changed and improved in the modifications made by the firm during the period of its existence and business as to be-almost entirely eliminated from the construction of the [479] mill finally made and sold by tbe firm. Such was the situation when the dissolution of the firm of Smith & Walker occurred. I find.nothing in the written notice of dissolution signed by the parties to the firm evidencing any sale or transfer of the defendant Walker’s interest in the business, or of his interest in any trade-marks used in the business or in the good-will thereof, to the complainant; neither do I find anything contained therein, or in the bill of sale made by Walker to complainant of property, on the dissolution, from which such transfer can reasonably be implied or fairly inferred. If, as counsel for complainant claims, Mr. Walker had transferred all his interest in the business of the firm, and reconveyed to complainant all the property he bought of him at the beginning and during the continuance, of the copartnership, there would be more reason for the ■ conclusion reached by counsel; but his premises not being supported by the proofs, his deductions therefrom could hardly fail to be erroneous. While the papers alluded to contain a notice that the complainant will "continue the business at the place formerly occupied by the firm, it does not say when Mr. Walker will continue it. Nor is there any intimation, that he will discontinue it, or cease to use the interest he retained, and had not transferred to complainant, or otherwise disposed of to any one. The statement contained in the complainant’s bill to the effect that the defendant Walker, on the dissolution of the copartnership, transferred all his interest in the business to the complainant, is not sustained by the proofs, but on the contrary thereof I think there is some testimony showing that such was not the fact; that the copartners themselves contemplated, at the time of the dissolution, each of the co. partners would thereafter carry on the business in which the company had been engaged. In the division of the property thus made between them each took a portion, which would have been useless except in'the business for which it was made and intended. The firm had also quite a large number of mills then on hand and remaining unsold, which were equally divided between them. The engagement for a part [480] nership by Walker with defendant Imus, for the purpose of subsequently conducting the same business, was made even before the firm was dissolved, and the testimony tends strongly to show this fact was known to complainant; and after such new firm had commenced doing the same kind of business as the old, the complainant proposed to manufacture for them a large number of the mills to be used in their trade, and actually did sell them some upon which defendants stenciled the same words claimed by complainant as his trade-mark, and used on the Smith & Walker mills; and it further appears, by the letters written by complainant to Walker, offered in evidence, that the complainant was very anxious to make such sales to the defendants of his mills for the defendants’ trade. Among these letters appears the following written to Walker while he was engaged in the northern part of the State making sales of the Walker & Imus mills: “ Traverse City, Mich., May 27, 1881. P. W. You thought you would like to get about thirty of these mills. I would like to sell yon the entire lot of mills, sales that have been made here, and you take charge of the peddlers. They are worth more to you than they are to me. Please state what you will give for them, and Í will give you an answer; and if I sell to you, be ready to close contract within twenty-four hours after I-receive your proposition. I think they can do good work if properly handled, but I am anxious to get out of it, as I am satisfied that everything I do this year will work against m'e. Please answer soon. M. TI. Smith. P. S. I think I will go home on Monday or Tuesday next. Try and make arrangements to take them, and we will make contract when I go home. Please consider this before you ship your next car-load. M. H. S. Please thoroughly consider this matter before you order your next car-load. I want to sell.” “ Traverse City, May 31, 1881. P. W. Your card rec’d. I can but still hope that you will purchase my mills and material, as it is worth more to you than any one else, and if I do not sell it will be my ruin. Please make me the best offer you can, and I will come on first train and make the contract, but do let me get out of [481] this business. I would rather lose part now than to lose all in the end, and you certainly can make well out of it. I have .mills enough finished here to relieve your hurry in shop there if you take them. Please do not. refuse, but make me an ■offer and I am sure we will come to a bargain. If I could possibly carry it through I would not be so anxious to sell, but I cannot, as every move I make is a blunder. I will not require but little down, and will store any stufE you may have left till next spring. The way I will let you have it there can be but little risk on your part, as it cannot be replaced at the price; but let me hear from you that you will take it, and there will be no more delay on my part, but I will attend to it at once. Yours, NT. H. Smith. P. S. Do not get out of patience, but do try and think favorable of this matter. M. H. S.” Upon a careful reading of all the testimony upon this subject I cannot avoid the conclusion that it was in the contemplation of both Smith and Walker, at the time they dissolved partnership, that each would thereafter carry on the business of making and selling the said fanning-mill they had been vending, and the reputation of which had been built up by their joint efforts in the firm of Smith & Walker. • If the words “Grain Grader & Seed Separator” ever became a trade-mark in the business of manufacturing and selling fanning-mills, it was made so by the use that the firm of Smith & Walker made of it, and whatever of value there was in such trade-mark, if any, like that of the good-will claimed ■by the complainant to be exclusively his, belonged alike to ■each member of the firm on its dissolution. And the law in such cases gives to each member of the firm, when it is ■dissolved, the right to carry on the old business in competition with the other, so long as neither can be made liable upon the contract of the other. And such I understand to ■be the rule in the case of partnership trade-marks and goodwill of a business, so long as the same remain undisposed of by the firm or its members. This record does not present the rights of a retiring member of a firm which continues after his withdrawal, and we •cannot consider the argument of counsel based upon that •theory. A partnership trade-mark may be and often is .an [482] important element in the good-will of the company business, and is an asset of the firm ¿ and unless otherwise provided in the contract of copartnership, on its dissolution may bo sold by the partners, or used by either of them thereafter until otherwise disposed of. The complainant exercised his right in this case to use it, but denies that right to the defendant Walker, and in this denial he is wrong. This substantially disposes of this case. It is claimed,, however, by counsel for complainant that, independently of the charges in the bill, of defendants’ infringing the complainant’s right to the exclusive use of the said trade-mark and good-will of the business of Smith & Walker, he may still maintain his case against the defendants for the fraud committed by them and their agents in. falsely representing to his customers and the trade that defendants have purchased the complainant’s business and interest in the mill business ; that the complainant has retired from businessthat the mill defendants sold was the same as the one manufactured by complainant; and sometimes by representing complainant to be dead, and in various ways assimilating the complainant’s mill, or the mill made and sold by himthat by such fraudulent practices and misrepresentations the complainant has been greatly injured in the reputation of the mill he makes and sells, his sales greatly curtailed thereby, and very much to his damage. If all these averments were true, and supported by the proofs, the complainant has his remedy at law, which would seem to be adequate. But, aside from this, these averments are not the grievances of the complainant’s bill; they are matters in aggravation of the main charge or substance of the. complaint, which is stated in the language of the brief of complainant’s counsel, ■and I think correctly so, “pirating complainant’s trade-mark and good-will ” of his manufacturing business, and to prevent which he asks relief, and claims damages for the injury sustained thereby. Of course, if the complainant has no exclusive right to what he claims as his “ trade-mark,” and the good-will he [483] seeks to defend and protect, there is no occasion for considering the other charges, which are only in aggravation of the alleged infringement of that right. I think the doctrine applicable to the class of cases within which the complainant intended to bring his case is very well stated, under the authorities, by his counsel, wherein he says: “ It is that one man shall not, in his own business, simulate the business of another by adopting the marks and tokens employed by that other to identify his productions, and so avail himself of the reputation and credit which the other has acquired to his own profit and advantage.” But this doctrine is not applicable to the facts upon which the complainant’s case rests. The want of exclusive ownership of what is claimed by the complainant in this case has rendered unnecessary the discussion of whether the words claimed as a trade-mark could legally be adopted and made such. They clearly expressed the uses and purposes of the class of machines to which the complainant’s belonged, and were also indicative of what the mill could do; and it is difficult to see what other purposes could have been intended by their use in connection with the fanning-mill, or upon what principle their exclusive application could have been made by the complainant or Smith & Walker. Walker says they never were adopted or used as a trade-mark for the mill or business; and that they were so intended by either of the partners seems never to have been known or so understood by any person whose business it was to make or sell the mills while the firm was in existence, unless it was by Mr. Smith. He certainly appears to have been very reticent upon a subject the publication of which would, as he claims, have been of such great pecuniary advantage to both him and to the firm of Smith & Walker. It is very difficult to reconcile much of the testimony in this case with what are claimed to be the facts. Smith does not claim, however, that the words constituted a partnership trade-mark, and I very much doubt, under the authorities cited by counsel in this case in their briefs, if the words could be legally adopted and used to the exclusion of their use by others as a trade-mark for the complainant. [484] But in the view I have taken of the case, whether they could or not is of little consequence. As the case comes before us upon this record the decree at the circuit, I think, should be reversed, the injunction dissolved, and complainant’s bill dismissed, with costs of both courts to the defendants, and decree should be entered in this Court accordingly. Cooley, O, J. and Campbell, J. concurred;