Excelsior Cereal Milling Co. v. Taylor Milling Co.

This is an appeal from a judgment in favor of the defendant after an order sustaining its demurrer to the plaintiff’s complaint, the latter having declined to amend.

The facts of the case as set forth in said complaint are briefly these: In the year 1907, and long prior thereto, the Del Monte Milling Company was engaged in the manufacture and sale of food products throughout California and adjacent states, in the course of which it had discovered a process for the blending of different kinds of flour so as to produce a compound to be used in the making of pancakes, waffles, etc., and which it had introduced to the trade and largely sold under the name of “California Flapjack Flour.” In 1907 the Del Monte Milling Company sold to the plaintiff the exclusive right to use this process in the manufacture of said compound for sale in certain of the southern counties of California and in the states of Nevada and Arizona. The plaintiff thereupon began the manufacture and sale of the product under the name of “California Flapjack Flour,” and have since continued so to do, and have expended large sums in advertising said product under said name, and have built up an extensive trade…

I dissent from the order denying a rehearing and refusing a .transfer of this ease to the supreme court.

The case comes directly within the principle established by this court in Weinstock, Lubin & Co. v. Marks, 109 Cal. 529 , [ 50 Am. St. Rep. 57 , 30 L. R. A. 182, 42 Pac. 142 ], and Banzhaf v. Chase, 150 Cal. 180 , [ 88 Pac. 704 ]. The principle is that one who, with intent to defraud the plaintiff, uses any artifice, device, or label on his own goods to deceive the plaintiff’s customers into the belief that they are buying the plaintiff’s goods and thereby induces them to buy the defendant’s goods, he is liable in damages for the injury thus caused to the trade of the plaintiff. The complaint in the present case sets forth facts which bring it within this principle. The device used was putting a label, including the word “Flapjack” on the defendant’s flour, whereby it led plaintiff’s customers to believe they were purchasing flour sold by the plaintiff under that label. The error in the opinion is in assuming that this device could not, as a matter of law, have deceived the plaintiff’s customers. The complaint alleges that it did, and the court should not, and could not,…