I concur in the affirmance of this order so far as it enjoins the defendants from selling pianos under the name of Ludwig, *395but I think the judgment is too broad in restraining the defendants from using the name Ludwig as the manufacturer of a piano player or playing mechanism whether this playing mechanism forms a part of the piano or not. When the firm of Ludwig & Ericsson assigned and transferred to the plaintiff corporation the personal assets, including the good will of the partnership of Ludwig & Co., it excepted and reserved from that transfer all patents relating to automatic piano players, all machinery used for that purpose, materials on hand, manufactured players, as well as names, trade marks or any property of any nature or kind relating specially to the department of the business of Ludwig & Co. in connection with the manufacture and sale of said automatic piano players. The evidence is undisputed that prior to the time this assignment was made the assignors had been engaged in endeavoring to invent and perfect an automatic piano, player both as a separate .instrument for a piano and also as a mechanism which could be placed within the piano, although at the time of the transfer" the only practical piano player that had been perfected was a separate instrument from the piano itself. During the time that the defendant Ludwig was connected with the plaintiff as a director and officer these efforts had been continued, though up to the time that Ludwig’s connection with the plaintiff ended an interior mechanism had not been perfected. It seems to me, however, that the firm of Ludwig & Co. obtained the right to use the name Ludwig upon any mechanism that they had invented or should thereafter invent that could be used as a mechanical piano player as distinguished from a piano to be played upon by the individual; and when Ludwig had actually perfected a piano player, the mechanism' of which was to be placed within the piano, Í think he had a right to sell such a piano player as the Ludwig Piano Player, provided he clearly indicated that it was the piano player- that was manufactured by Ludwig and not the piano itself. Undoubtedly the means adopted by the defendant in placing upon the pianos sold by him the name “Ludwig” in large letters with the addition of “Piano Player” in small and inconspicuous letters was a violation of the contract as tending to deceive purchasers into supposing that the piano sold was the Ludwig piano, and the adop*396tion by the defendant of the method employed in selling the pianos including the playing mechanism should be enj oined. But as the defendant Ludwig had reserved the right to manufacture piano players under the name of the Ludwig Piano Player, I ■ think he was entitled to place upon, the outside of the instrument sold by him the fact that the piano- mechanism inclosed in the piano sold was manufactured by Ludwig & Co. or its successor, the Claviola Company. There was no agreement by Ludwig & Co., in the transfer to the plaintiff" which at all restrained Ludwig & Co. from continuing the manufacture of pianos, and the defendant Ludwig had the right to use his. own name in that business after the' transfer to the -plaintiff. .He had no right, however, to sell the pianos that he should manufacture as the. Ludwig Piano, but I think he had the right to sell, a piano player whether it was contained within the piano itself or was a separate instrument as the Ludwig Piano Player, and to place upon the instrument which included a piano and a piano player the name- of the Ludwig Piano Player.
In Russia Cement Co. v. Le Page (147 Mass. 206), the case relied on in the prevailing opinion, the opinion"" concludes as follows: “While the plaintiff has not-sought to prevent the. defendant from manufacturing glue, we add, in order to avoid misunderstanding-, that while the defendant cannot use the words adopted as a trade name for the article manufactured by him, we "do not decide that he may "not. usé the words ‘ Liquid Glue/ or other . appropriate words to describe his product, or to state in that connection that he is himself the manuf acturer of it.” In that case there was no reservation by the assignor as to his right to use his name as in this, case, and in consequence of the character of the article manufactured it was apparent that even the manufacture of liquid glue under the name of LePage would of itself seriously affect the business that was transferred. And this fact may be considered in applying the subsequent decision of the United States Circuit Court in the case of Le Page Co. v. Russia Cement Co. (51 Fed. Rep. 941).
I think, therefore, that the order should be. modified so that the defendants should not be restrained from selling. a piano including, a playing mechanism under the name of the Ludwig *397Piano Player, and this could be provided for by striking out from the last proviso in the second clause of the interlocutory judgment the words “placing or applying the said name or any name of which the word 1 Ludwig’ forms a part upon any part of such pianos or upon any visible portion of such instruments.” And also striking out in- the first clause of the interlocutory judgment the words “ whether such pianos have an interior play ing mechanism or not, and in like manner enjoined and restrained from causing the same to be done.” - ■
I think, therefore, the interlocutory judgment should- be amended as before indicated and as so amended affirmed, without costs to either party.
Miller, J., concurred.
Judgment affirmed, with costs to plaintiff and against defendants.