I dissent from the order denying a rehearing and refusing a transfer of this case 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 P. 142], and Banzhaf v. Chase, 150 Cal. 180, [88 P. 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, properly hold that this allegation is on its face impossible. It might not deceive all persons, but the case is made out if it deceives a sufficient number to constitute a substantial injury to plaintiff's trade and the deceit was practiced with the intent to defraud plaintiff. The allegation is sufficient and the fact could only be determined by the evidence. The case involved nothing more than the sufficiency of the allegations. *Page 597