Opinion
November Term, 1902.
Frank L. Crocker, for the appellant.
Isaac W. Goodhue, for the respondent.
The action was brought to restrain the defendant Heller Chemical Company from violating the plaintiff's trade marks, and the defendant Selling from continuing further in the employ of the Heller Chemical Company as its salesman. The defendant Selling answered on the 22d day of January, 1902. In June, 1902, Selling made an application for leave to serve a supplemental answer alleging that the trade marks which the plaintiff seeks to protect in this action contained false and fraudulent statements. The action against Selling was to enforce a covenant contained in a contract of employment, in which contract Selling agreed that he would not enter the employ of any competitor of the plaintiff within a specified time after he left the plaintiff's employ; that Selling was discharged in August, 1901, for failure to account for and pay over to the plaintiff certain collections he had made on account of the plaintiff; that in September, 1901, Selling entered the employ of the defendant Heller Chemical Company, a competitor of the plaintiff, and that after his entry into the employ of the Heller Chemical Company that company commenced the infringement of the plaintiff's trade marks. The cause of action thus alleged and sought to be enforced against Selling is for a breach of a contract, and it would not seem to be a defense to that cause of action that certain trade marks under which the defendant did business contained fraudulent statements of facts. The facts alleged would not justify Selling in violating his contract with the plaintiff. The Heller Chemical Company has not been served in this action and is not, therefore, before the court, and as the facts alleged in the supplemental answer could be no defense to Selling in the action to recover for a breach of his contract I do not think that Selling should have been allowed to serve the answer. As, however, the question as to the validity of the defense alleged can be disposed of at the trial, we are hardly justified in reversing the order because as it now appears the facts alleged would not constitute a defense. The facts which are sought to be alleged are facts which existed prior to the service of the original answer and entirely change the issues presented and, therefore, we think that as a condition for leave to serve this answer the defendant should be required to pay the costs of the action to date, and required to stipulate that the plaintiff may discontinue the action without costs if so advised.
The order appealed from should be modified as above indicated, and as modified affirmed, without costs of this appeal.
VAN BRUNT, P.J., PATTERSON, HATCH and LAUGHLIN, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.