Harryman v. Harryman

Citations

• 93 Kan. 223
• 144 P. 262
• 1914 Kan. LEXIS 414

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Trade Name — Agreement Not to Use Partnership Name— Infringement — Family Name — Deception of Public — Simulation. An agreement was made upon the dissolution of a partnership that two members of the old firm who took over part of its business should reserve the right to trade under the firm name of George Harryman & Bro., and that the other two' would not use that name, directly or indirectly, nor adopt a trade name that would be deceptive or amount to a simulation of the one so reserved; and the two last named formed a new partnership to. carry on another part of the business and adopted the name of Harryman Bros. It is held that a finding of the district court that the trade name of the new firm was a simulation of the former firm name should be sustained.</p> <p>2. Pleadings — Infringement of Trade Name — Immaterial Allegations of Answer Stricken Out. In a clause of the dissolution agreement two of the former partners who reserved the firm name agreed that if they could do so on terms as satisfactory as they could obtain from others, they would purchase such Illinois broom corn as they might require from the other two, who agreed that if they should act as agents of the two first named in buying broom corn, they would do so for a stipulated commission. The answer pleaded this clause and alleged that it had been violated by the two first named, who. are plaintiffs in this action, in' that they had purchased broom corn in Illinois, but had not offered to purchase from the defendants (the other two) ; also that the plaintiffs had • purchased the commodity through other agents without giving the defendants an opportunity to act for them. The answer contained no allegation that the defendants had the commodity to sell, nor of any offer to sell, or to act as agents in making-purchases, nor of readiness to do either. No injury, loss or damage was asserted or claimed. It is held that an order striking out the part of the answer pleadin