Appeal, No. 184, Jan. T., 1957, from decree of Court of Common Pleas No. 3 of Philadelphia County, June T., 1955, No. 11719, in case of Louis Love, individually and trading as Pitman Laboratories, v. Samuel Love, Pitman Laboratory Sales, Inc. et al. Decree affirmed.
Stanley M. Greenberg, with him Bernard S. Ochman, Charles S. Schermer and Montgomery, McCracken, Walker & Rhoads, for appellant.
David Kanner, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Louis Love invented a cleaning compound to which he gave the lively name of "Zipp-O". On or about May 1, 1954, his brother, Samuel Love, recommended to him that they enter into a business arrangement, whereby Samuel Love would contribute the merchandising know-how, skill, and cash, and Louis would supply the formula and the name. It seems that while Zipp-O had merit as a detergent it needed exploitation. Samuel Love induced Louis to place a supply of Zipp-O for sale at a retail store on Market Street in Philadelphia, and he then proceeded to exercise his talents as a "spieler" in proclaiming the virtues of Zipp-O, urging the public, much in the nature of the old-time circus barker, to buy Zipp-O, the "secret formula, all-purpose cleaner Zipp-O". He conducted a demonstration campaign, employing girls to show how the product could and should be used, and purchased. The business blossomed and prospered. Zipp-O was now being sold at farmers' markets in New Jersey, in a McCrory store at Atlantic City, and at a second store on Market Street in Philadelphia.
In September, 1954, the brothers decided to incorporate under the name of Pitman Laboratory Sales, Inc., each brother receiving one-half of the outstanding capital stock. Until the corporation could set up facilities for manufacturing Zipp-O, it was agreed that Louis Love would continue producing it in his own establishment, the Pitman Laboratories. This arrangement seemed satisfactory for a while, but in a matter of months, differences of a rather serious character arose between the brothers. Although they bore the name of Love, it seemed that now not much of it was being lost between them. What had once been brotherly love became distrust, then acrimony, and then hostility, which finally broke out into an open rupture between the inventor and the merchant. By May, 1955, Louis was refusing to deliver Zipp-O to Samuel, and Samuel was manufacturing, under the name of the corporation, his own Zipp-O. On September 15, 1955, Lois obtained in the Court of Common Pleas No. 3, Philadelphia County, a preliminary injunction restraining Samuel and the corporation from manufacturing the said Zipp-O.
On November 10, 1955, Louis petitioned the Court of Common Pleas for a rule on his brother to show cause why he should not be held in contempt for violating the injunction. Louis charged that Samuel had formed a new corporation by the name of Florin Chemical Corporation which was now manufacturing and marketing a product known as "New Sup-R Zip," but which in verity was not new, it was not super, and it had no more zip than the original Zipp-O, and that, as a matter of fact, the New Sup-R Zip was simply the old, original Zipp-O, wearing a fancier title. It is not to be conjectured to what heights of invention the battling brothers might have soared in this war of titles, had it not been that counsel for the parties entered
into a stipulation, approved by the Court, which now had the entire dispute before it for adjudication. The stipulation provided that Sup-R Zip would be withdrawn from the market, any potential contempt of the preliminary injunction would be purged, and Louis Love would reserve the right to "assert any claim for damages in this matter."
The whole controversy came on for hearing on March 28, 1956 with additional testimony being taken also on April 19, 1956. On August 6, 1956, the Chancellor filed an adjudication and Decree Nisi. Samuel had charged in his answer to the plaintiff's complaint that Louis was selling Zipp-O to customers of his own, in violation of their agreement that he was to produce the article only for the Pitman Laboratories Sales, Inc. The Chancellor decreed that Louis was no longer to sell his product to anybody but the ...