Ward Baking Co. v. Robert W. Tolley & Tolley Cake Corp.

Merrell, J.

(dissenting). I concur in all my associate, Mr. Justice McAvoy, says, and further dissent upon the ground that we are left in serious doubt as to whether plaintiff had any secret process in cake manufacture. Certain it is, defendant is not shown to have divulged any information concerning the same, nor does it appear that plaintiff’s alleged secret process was ever used by the defendant or those with whom he became associated in the manufacture of cake after leaving plaintiff’s employ. If defendant or the corporation with which he became identified had made use of any secret processes of plaintiff, it would seem that plaintiff could easily have established such piracy upon the trial and thus have justified its demand that defendant be enjoined. No attempt was made to prove such fact. Under such circumstances I think it would be unjust and inequitable to deprive defendant of the right to earn a livelihood at the only trade he knows. I, therefore, dissent and vote to reverse the judgment appealed from.