Superior Court of Cincinnati. 64 insanity of the ward; and the reasoning tends to show it is conclusive; but this was not the question then before the court. If this were not the general principle of the law, the situation, of the guardian would be extremely unpleasant, and it would be almost impossible to execute the trust. In every action, he might be obliged to go before the jury upon the question of sanity, and one jury might find one way and another another. We are of opinion, that as to most subjects the decree of the probate court, so long as the guardianship continues, is conclusive evidence of the disability of the ward; but that it is not conclusive in regard to all. For example, the ward, if in fact of sufficient capacity, may make a will, for this is an act which the guardian can not do for him. But the transaction now in question falls within the general rule." See, also, for the same distinctions: Stone v. Damon, 12 Mass., 488; Walt v. Maxwell, 5 Pick., 217; Breed v. Pratt, 18 Pickering, 115; Gibson v. Soper, 6 Gray, 279. In Maine, Rhode Island, Pennsylvania and Missouri, that which in Massachusetts and New York is declared to be the law by the courts, is made the law by statute. And it shows the correctness of the distinctions already made that the courts of these states have very generally excepted from the operation of the disabling statutes wills and marriages. See Imhoff v. Witmer, 31 Penn. St., 243; Jenckes v. Court of Prob., 2 R. I; Hamilton v. Hamilton, 10 R. I., 538; and Brinkman v. Ringgeseck, 71 Mo., 553. In Indiana the statute provides that every contract sale or conveyance of a person of unsound mind shall be void. In Redden v. Barker, 86 Indiana, 191, it is held that the appointment of a guardian is conclusive evidence of incapacity to contract, until the guardianship is removed by the probate court. In this last case, the argument is based largely upon the context in the statutes, but reliance is also placed upon the New York and Massachusetts authorities. In the case of Elston v. Jasper, 45 Texas, 413, the New York and Massachusetts authorities are approved. The court say: "But such a person, whilst actually under legal and subsisting guardianship and in support of the guardian's authority, is conclusively presumed incompetent to contract, and his deed as against his guardian is absolutely void." In the last case it is held that the same conclusiveness does not attach where the guardian has practically abandoned the guardianship, and the relation has in fact terminated. There are cases in Vermont and North Carolina, the decisions in which do not look with favor on the theory I have followed. Blaisdell v. Holmes, 48 Vt., 492, was a case where the ward was held after the guardian's death for wages for hired help for services rendered during the life of the guardian, the contract of employment being made by the ward. But it appeared in that case that the guardian had told the plaintiff that he should be paid, that the services rendered came under the head of necessaries, and that the guardian had practically abandoned his guardianship by allowing his ward to go into business. In Motley v. Head, 43 Vt., 633, it was held that an adjudication of insanity was not conclusive evidence of the subject's incapacity to contract and that therefore such an adjudication would not necessarily terminate an agency made before the guardianship. But, in this case, the adjudication was that of a foreign court, i. e., of Massachusetts. In North Carolina there are two cases, Arrington v. Short, 3 Hawks. Law & Eq. 71, and Parker v. Jones, 8 Jones, 460, which present squarely the question of the evi 64 Jordan, Guardian v. Dickson et al. dential effect of a guardianship for insanity upon contracts entered into by the ward during the guardianship, and in which it was held not to be conclusive. In the last case, the question turned on the purchase of goods which seems to have been necessaries. There are other cases where the dicta of judges repudiate the Massachusetts and New York doctrine. See Lucas v. Parsons, 23rd Georgia, 267. But this case involved the question only of testamentary capacity. In Clark v. Trail, 1 Metc. (Ky.), 35, the court while recognizing the conclusiveness of the relation as to alienation of the estate by the ward, declined to extend to it the saving of rights by the statute of limitations. In Key v. Norris, 8 Richardson Eq. 388, the question was as to the validity of a marriage the wife in which was under commission at the time of it, and the commission was decided not to be conclusive evidence of the wife's incapacity to marry. But the court approves the reasoning in Stone v. Dawson, 12 Mass., cited above. It therefore seems to me that by reason and the weight of authority I am justified in holding that as against third persons, the fact that a person is under guardianship as an imbecile in a probate court of this state, is conclusive evidence of his incapacity either to make or ratify a contract, or to do any other act pending the guardianship in derogation of the authority over his estate vested in his guardian. If this is true in respect of third persons, a fortiori is it true as between the guardian and the ward, in any but a direct proceeding to reverse the order or remove the guardian. This conclusion makes it unnecessary for me to discuss the case of Messenger v. Bliss, 35 Ohio St., 47, the decision in which rested solely on the proviso, which was in the statute at the time of the appointment, that an appointment of a guardian for an imbecile should only be prima facie evidence of imbecility. This proviso has since been repealed. Counsel for Harry Dickson urge that the question presented at bar is the same question which would be presented were plaintiff administrator of Harry Dickson, and Chas. T. Dickson were to find that Harry Dickson was not dead, and were to make him a party. It is said that on cross-petition, Harry would not be concluded from showing that he was alive and wished the case dismissed, before revocation of the letters of administration. It is not necessary to decide the question, for it preseuts little analogy to the question at bar. It has been decided that the issuing of letters of administration is not an adjudication in rem of the death of the party as against the party, but assuming the death, is an adjudication against the estate. See Day v. Floyd, Adm'x, 130 Mass., 488; Mutual Benefit Ins. Co. v. Tinsdale, 91 U. S., 238, 243. For the reasons I have given the demurrer of plaintiff to the answer of Harry R. Dickson will be sustained. Isaac M. Jordan, for plaintiff. E. W. Kittredge and Judson Harmon. for C. T. Dickson; Thos. McDougall, for H. R. Dickson. Superior Court of Cincinnati. 48 84 INJUNCTIONS. [Superior Court of Cincinnati, September 5, 1887.] CINCINNATI BELL FOUNDRY Co. v. JOHN B. DODDS ET AL. 1. A court of equity will protect the inventor of a secret process against its disclosure or unauthorized use by any person obtaining knowledge of it in confidence. 2. The inventor may sell the secret to another, and thereby vest in his assignee as full right to protection from disclosure or use by persons acquiring knowledge of it in confidence, as he himself would have. 3. The process must be shown to be a secret to entitle the complainant to protection. 4. On preliminary hearing, if there is any probability that the complainant's case may be maintained, the injunction must be continued until final decree. TAFT, J. Plaintiff alleges that it is the owner by purchase of a secret process for the manufacture of bells, and that it has been selling bells of this manufacture for two years last past; that the business is a valuable one, having been made so by the excellence of the bell and the extensive advertising done, by plaintiff and its predecessors in ownership for twenty years; that defendant John B. Dodds was the foreman of the Blymyer Manufacturing Company, from whom the bell business was purchased by plaintiff, and which continued to manufacture bells for plaintiff after the sale; that Dodds as foreman acquired a knowledge of this secret process under an injunction of secrecy and now proposes to use this process in the manufacture and sale of bells for the firm of John B. Dodds & Son, consisting of himself and his co-defendant Robert H. Dodds, and to communicate the secret to the Eureka Foundary Company, to enable the latter company to manufacture the bells for this firm. Plaintiff further alleges that the defendant Chas. Lange was formerly in the employ of plaintiff; that while there, he obtained a list of the customers of the plaintiff; that he is now in the employ of John B. Dodds & Son as bookkeeper, and is using the list so obtained to address letters to plaintiff's customers representing that the firm of John B. Dodds & Son are successors to the Blymyer Manufacturing Co., in the making the bells according to the secret process belonging to the plaintiff. The prayer is for an injunction to prevent the manufacture, or sale of the bells, the communication of the secret process to any one, or the misrepresentation to the customers of the plaintiff above described. Defendants answer denying, that plaintiff's process is a secret; but aver that it is well known to the trade, and that John B. Dodds knew it before entering the employ of any alleged predecessors of the plaintiff, and never agreed not to use or reveal the same. The answer also denies the misrepresentations. When the petition was filed, a preliminary injunction was granted. A motion to dissolve has been made, which is now to be considered. It is clearly established in the case of Peabody v. Norfolk, 98 Mass., 452, that he who discovers and keeps secret a process of manufacture, whether a proper subject for a patent or not, has a property in it which a court of equity will protect against one who in violation of contract and breach of confidence undertakes to apply it to his own use, or to disclose it to third persons. He has not an exclusive right to it as against 84 Cincinnati Bell Foundry Co. v. Dodds et al. the public or against those who, in good faith, acquire knowledge of it. In the case of Vickery v. Welsh, 19 Pick., 523, and in Taylor v. Blanchard, 13 Allen, 373, 374, it is settled that such a secret is a legal subject of property and that a bond to convey it may be legally enforced, thus fully recognizing that the inventor of a secret process may sell or assign it to another. It is indispensable to value in such a process, that the owner shall have the right to protect himself against persons who wish to use or disclose it in violation of contract or confidence. It follows, therefore, that the vendee of the secret acquires by the sale the same right to protect it against disclosure, which belonged to the inventor because if he does not, he gets little or nothing by the sale. But it is said that he can not have this right against one who acquired the process in confidence from the inventor before the sale, because there is no confidential relation existing between the vendee and such person. The vendee's remedy, it is claimed, must be against the vendor and the vendor's against the unfaithful servant. I do not think so. If the vendee has a property right in the secret, the confidential servant of the vendor has no more right by disclosure to destroy property of his vendor's assignee than of his vendor. To prevent such destruction, the assignee has as clear a right to protection, against the wrongdoer from a court of equity as the assignor. The property in a secret process is the power to make use of it to the exclusion of the world. If the world knows the process, then the property disappears. There can be no property in a process, and no right of protection if knowledge of it is common to the world. It would be a violation of every right of the employe of a manufacturer to prevent the former from using, in a business of his own, knowledge which he acquired in the employ of the latter, when he might have acquired such knowledge in the employ of other manufacturers. Indeed, a contract not to do so would probably fail of enforcement because in restraint of trade. The principles of law governing in the consideration of this case therefore are: 1st. That the inventor of a secret process has a property right in it which he may call upon a court of equity to protect him in against the use or disclosure of the secret by any person acquiring knowledge of it in confidence. 2d. That the inventor may sell the secret and all his property in it and thereby vest in the purchaser as full rights as he himself has to protection against its use or disclosure by any who have acquired knowledge of it in confidence from the inventor or himself. 3d. That the process must be a secret process, not common to the trade, to entitle the plaintiff to protection. Coming now to apply these principles at bar, there seems to be no doubt that John B. Dodds proposes to make exactly the same bell that was made by the Bly myer Manufacturing Company, and that he has made a contract with the Eureka Foundry Company to make this bell for him, necessitating the disclosure of the process of manufacture to third persons. I do not think that from the evidence, this statement can be seriously disputed. It further appears that the Blymyer Manufacturing Co. sold this process, together with the good-will of the bell business, to the plaintiff's assignor in Nov. 1884. From what has been said it follows that plaintiff has the same remedy against defendants that the 84 Superior Court of Cincinnati. Blymyer Manufacturing Co. would have had against them, had no assignment taken place. The questions of fact are simplified to two. 1st. Was the process a secret one? 2d. Did John B. Dodds acquire knowledge of it in confidence, and under an implied obligation not to use or disclose it? The manufacture of bells has been extensive for many centuries. The metal of which they were made was copper and tin. This is known as bell-metal, and is still the metal generally used, while iron in recent years has been used for small bells. The particular mixture of metals used by plaintiff for bell material is of very recent date, and was for years of doubtful success. Mr. W. H. Clark seems to have experimented for several years in making bells of this mixture. His experiments included not only the mixture of certain metals, but the proper form and size and weight of the bells adapted to produce the best result. It seems that the size, weight and form of a bell have as much to do with the tone as the metals used. During these experiments, he transferred all his interest in them to the Clark Sorgo Machine Company. This was in 1863. In 1866 this company sold all its assets and business to Blymyer, Norton & Co. At this time Mr. Clark seems to have closed his experiments. He had then arrived at a standard form and weight for each size of bell now manufactured by the plaintiff, except the bell with a 54-inch diameter, the largest size. Since 1866, with this exception, the form and weight of the various sizes have not changed. The only change in the mixture of metal was a substitution of one form and grade of one of the metals for another, the proportion between the metals remaining the same. so made have been sold for twenty years by Blymyer, Norton & Co., the Blymyer Manufacturing Co., and the plaintiff. There is no evidence tending to show that at the present time, there is any other manufacturer engaged in making bells of the same proportions of torm, size, weight and mixture of metals. Another manufacturer has made a bell of similar metals, but there is nothing tending to show in what proportion those metals are mixed by him, or that they are molded into forms, sizes and weights like those of the plaintiff. One witness makes an affidavit that bells were made in Maysville some years ago in which the proportions of the metal mixture were the same as those arrived at by Mr. Clark, but he is contradicted in this by the proprietor of the foundry at which he says the bells were made, and it does not appear in what form or size or weight of bell this metal was used. Every case of manufacture of bells where these metals have been used, stated in the evidence, was probably an experiment soon abandoned. It is important at this point, to say that because bells of plaintiff have been sold everywhere, and it would be easy therefore to make patterns from the bells, it does not follow that the use of those forms with a certain mixture of metals may not constitute a secret. The result from those forms and sizes with any other mixture of metal than the one used, as copper and tin for instance, or white iron, would be entirely different from the result obtained from these forms and sizes with the metal mixture which is used. Knowledge of the fact that these forms, sizes and weights made a good bell, and that these metals made a good bell-metal mixed in a certain proportion, would not be knowledge of plaintiff's process, unless it was accompanied by knowledge of the fact that a good bell was made by a combination of this bell-metal with these forms, sizes and weights. The success of the plaintiff's bells for so many years, and its continued |