The opinion of the Court was delivered by
Poché, J.Defendants appeal from a judgment which dismissed their «‘.conventional demand on the ground that it disclosed no cause of action.
Plaintiff’s action was based on an alleged infringement of Ms trade-in arle for cigarette paper, which defendants were charged to have imitated in selling a spurious article bearing such trade-mark; in consequence of which lie prayed for damages in tiie sum of ten thousand dollars and for an injunction. To his petition he annexed interrogatories on facts and articles intended to bring out the substantial facts alleged in Ills pleadings.
In their answers to the questions thus propounded to them, the defendants denied emphatically that they had sold cigarette paper corresponding in all respects with that covered by plaintiff’s trade-mark, and which had not been manufactured by him. For answer to the suit they liled a general denial, followed by a special denial, that the cigarette paper which they had sold was an imitation of that manufactured by plaintiff.
They then aver that two other named parties were the owners of the trade-mark under which they were selling, and they call said parties in warranty. They conclude with a prayer to be decreed entitled to sell the paper bearing the trade-mark of tlieir warrantors, which t-liey annex to their answer, and claiming in reconvention damages against plaintiff for having, by his suit, slandered their business, and impeded their legal and'free use of their warrantors’ trade-mark.
The warrantors pleaded before service of process, affirming their title *1020to the trade-mark annexed to defendants’ answer, and praying that defendants he quieted in their right to re-sell cigarette paper hearing their said trade-mark. At this juncture plaintiff discontinued Iris suit, hut defendants, hacked by their warrantors, insisted for'a trial of their re-conventional demand, which the court dismissed on plaintiffs suggestion that at that stage of the proceedings it disclosed no cause of action. From the foregoing statement of the pleadings it appears to our satisfaction as follows:
■ That defendants were not the owners of the trade-mark which they sought to vindicate, and that therefore they had no canse or reason to judicially claim any other right than that of using it in their dealings under the authority of their warrantors. But that right was conceded and f.uly recognized by the discontinuance of plaintiff’s action which was the only obstacle in their way. That left them without any grievance or complaint which they could judicially assert, and therefore the case was thus stripped of all litigious contention. The ends of justice were fulfilled and the mission of the court was thus accomplished.
IVe therefore conclude that there is no error in the disposition made of the case by the District Court.
Judgment affirmed.