AMERICAN CEREAL CO. v. ELI PETTIJOHN CEREAL CO., 76 F. 372

JENKINS, Circuit Judge, after the foregoing statement, delivered the opinion of the court. An interlocutory injunction operates somewhat in the nature of judgment and execution before trial. Without question, it is at times an appropriate remedy in the prevention of great wrong, but to authorize its issuance there must exist a pressing necessity. The-right to it must be clear, and the apprehended injury must be grievous, and generally, where the injury may be measured in money, the alleged wrongdoer should be shown to be unable pecuniarily to respond.

Without considering the many and interesting questions discussed at the bar, it is sufficient at this time to say that upon the evidence produced we are of opinion that the right of the appellant to the exclusive use of the name “Pettijohn” is not so clearly, shown-that we would be warranted in overturning the discretion lodged in the court below upon granting, refusing, or dissolving the writ..

The product in question would appear to have been first manufactured and put upon the market in California in the year 1877 by Eli Pettijohn, under the name of “Pettijohn’s Rolled Wheat.” Subsequently, and from May, 1884, it was sold under various names, by Eli Pettijohn and his son William, or by one. of them, and by their successors, or the, successors of one of them, as “Pettijohn’s Breakfast Gems,” “Pettijohn’s Breakfast Pearls,” or “Pettijohn’s Breakfast Food.” The name “Pettijohn” seems to have been first connected with the product by Eli Pettijohn, the father, who was, engaged in the manufacture and sale of the product in the state of, California intermittently from the year 1877 down to the autumn of the, year 1892.

During all these years the. name “Pettijohn” was applied to the product, whether manufactured by the father of by the son, or by the successors of both or of either of them. The appellant claims title to this name, as applied to this product, through grant by the son; the appellee, through grant by the father.

It is left doubtful by the evidence whether the father ever parted with his right to such use of that name, and whether the son ever acquired the exclusive use thereof, in the manufacture and sale of this breakfast food, and whether they were not both entitled to such use of it as tenants in common, so to speak. The right being thus clouded with doubt, it was no abuse of discretion to dissolve the injunction. Cross-examination in the ordinary course of judicial proceedings may dispel the doubt now existing, and may make clear that which is now obscure.

The appellant: should not, therefore, be allowed this extraordinary writ, when it can be fully compensated in damages for the injury sustained if it should eventually be decreed to be entitled to relief. In affirming this order, as we are compelled to do, we disclaim any intent to determine this controversy, withholding expression of an opinion upon the merits until the cause shall come here upon final decree. The order will be affirmed.