Opinion
January Term, 1900.
Motion for reargument denied. — Motion for reargument. —
In support of this motion it is argued that the sole ground for reversal was an alleged error of the trial judge in refusing to allow the defendant Ruxton to give evidence tending to prove his ownership of the secret formulas in controversy. It is said that the alleged error was not suggested by the appellants, either in their brief or on the oral argument, and consequently the respondent did not touch upon the question. An examination, however, of the respondent's second brief, filed upon the argument of the appeal, shows that his counsel therein called attention to this very ruling, insisting that after it was made the defendants neglected to show whether or not the defendant Ruxton was the owner of the formulas. The exception was squarely brought to the attention of the court by the respondent's counsel himself, and he cannot now justly complain that it was considered in the disposition of the appeal. It is also argued that the objection was not to the evidence, but to the form of the question, as calling for a conclusion. In view of the other evidence which had been given in the case, we do not think it ought to have been sustained on this ground. Many questions are permissible, the answers to which involve conclusions to some extent: and we think this inquiry into Ruxton's ownership should have been allowed, to be followed, if necessary, by further questions as to the facts upon which his claim was based. Counsel for the respondent now insists that Ruxton testified at length as to his ownership of the formulas, at folios 145 to 148 and 156 of the appeal book. In his second brief, on the original argument, however, he asserted that all Ruxton's testimony in which there was any attempt to claim that he was entitled to the formulas was at folios 61, 158 and 315. Then, too, the testimony to which reference is now made related to possession rather than ownership. Furthermore, wholly irrespective of the exclusion of evidence in support of Ruxton's claim of ownership, the court was disinclined to regard the contract between the parties as an agreement to render personal services to another, involving the exercise of special skill so as to bring the case within the equitable rule permitting an injunction against the exercise of such skill for the benefit of others. Even if the exclusion of the evidence concerning Ruxton's ownership was not sufficient of itself to justify a reversal of the judgment, we are quite clear that the contract is one which should not be enforced negatively by enjoining its breach. The question whether the facts were such as to entitle the plaintiff to equitable relief was fully discussed in the briefs and on the oral argument, and there is no occasion for a reargument on that subject. If the facts are presented on a new trial as they were presented on the trial already had, the utmost relief to which the plaintiff would be entitled would be the recovery of such money damages as he could prove he had sustained by reason of the refusal of the defendant Carlson to unite in the formation of the contemplated corporation. All concurred, except Hirschberg, J., taking no part.