This case was decided at the last term of the court, and is reported in 73 N.C. 310, and it is again before us on a petition to re-hear for alleged error in the former decision. The alleged error consists in this, that the court in the opinion and judgment then (734) rendered, assumed that the defendant, Wright, was a citizen of North Carolina, and doing business in the town of Durham, when in fact he was not.
It is true that the court did so assume, and the record, to which we are confined, does not show otherwise. But it is immaterial how that fact may be, as the opinion of the court was not affected by that consideration. The decision rests upon the broad ground that the trade mark of the plaintiff, was not infringed upon by that of the defendant, owing to their dissimilarity. It was therefore not material whether the defendant was located and doing business at Durham or at Richmond.
There is no error.
PER CURIAM. Judgment re-affirmed and petition dismissed.