undoubted right to such a deficiency judgment, and the plaintiffs neither gave nor agreed to give or confer any benefit in consideration of its release, nor did they agree to suffer any prejudice or forego any advantage. The promise of the defendant was, therefore, mere nudum pactum. But plaintiffs say they relied upon it, and acted upon it, and therefore the defendant is estopped from alleging or relying upon a want of consideration. This would be so if it appeared that their position was changed for the worse in consequence of their reliance on defendant's promise, but nothing to that effect is alleged. True, they suffered default, but they had no defense to the action, and they did not bid at the sale nor provide a bidder, but they do not allege that the property was worth a dollar more than it sold for, or that they would have been willing to bid more for it, or that anyone would have done 80. In short, the complaint is fatally defective, and did not admit the proof of facts sufficient to warrant a judgment. The decision in Thompson v. Laughlin, 91 Cal. 317, does not conflict with this view. In that case, the plaintiff had waived his motion for a new trial in another action in consequence of the promise of the adverse party to satisfy the judgment, and, after the time for moving had passed, an attempt was made to enforce the judgment. The enforcement of the judgment was enjoined, but it was because, in the opinion of the court, the plaintiff 504 would have been entitled to a new trial if he had moved for it. The judgment and order appealed from are affirmed. Van Fleet, J., Garoutte, J., and Henshaw, J., concurred. JUDGMENTS-RELIEF FROM IN EQUITY.-If, contrary to the agreement of counsel for both parties, judgment is entered, and the fact of its entry is concealed from the defendant by the joint misrepre sentation of both the plaintiff and the justice until the time for appeal has expired, equity will grant relief by enjoining the assertion of such Judgment: Merriman v. Walton, 105 Cal. 403; 45 Am. St. Rep. 50, and note. Equity will enjoin the enforcement of a judgment, if any fact exists which shows that it would be against conscience to execute the judgment, and of which the injured party could not have availed him self in a court of law, or of which he might have availed himself, but was prevented by the fraud of his adversary, unmixed with any fraud or negligence on his part: Hibbard v. Eastman, 47 N. H. 507; 93 Am. Dec. 467, and note. See, also, the note to Hartford Ins. Co. v. Meyer, 27 Am. St. Rep. 386, and the extended note to Oliver v. Pray, 19 Am. Dec. 603. WEINSTOCK, LUBIN & Co. v. MARKS. [109 CALIFORNIA, 529.] INFRINGEMENT. - Al TRADE NAME - FRAUDULENT though there can be no exclusive property in a trade name, it is a fraud on one who has established a trade and carried it on under a given name for some other person to assume the same name, or the same name with a slight alteration, in such manner as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to such name. Such fraud may be enjoined. TRADE NAMES - INFRINGEMENT. — One who built up a business under the name of "Mechanics' Store" is entitled to an injunction restraining another from the use of the words “Mechanical Store" as a designation of his business for the purpose of deceiving the public, and especially the former's customers, and thereby securing the benefits of the goodwill of his business. TRADE NAMES.-ANY SIMILARITY OF NAME likely to deceive or mislead an ordinary unsuspecting customer, and divert and secure his trade from the person who established a trade name, is a fraud which may be restrained by injunction. TRADE NAME — INFRINGEMENT-INJUNCTION.-If one tradesman resorts to the use of any artifice or contrivance for the purpose of representing his goods or his business as the goods or business of a rival tradesman, thereby deceiving the public by causing them to trade with him when they intended to trade, and would have otherwise traded, with his rival, he commits a fraud which may be restrained by injunction. TRADE NAMES AND BUILDINGS – INFRINGEMENT. — When one has built up a particular business under a certain name in a house of a certain style of architecture, another engaged in a similar business, who adopts a similar name, and erects a building of precisely similar architecture, for the fraudulent purpose of drawing away the customers of the other by such deception, he may be restrained by mandatory injunction, and compelled to distinguish his place of business in some mode or form sufficient to indicate to the public that it is a different place of business from the other. Holl & Dunn, for the appellant. Johnson, Johnson & Johnson, for the respondent. 531 GAROUTTE, J. Plaintiff is a corporation carrying on a large clothing and dry goods business in the city of Sacramento. Defendant is also a dealer in clothing of the same general character, and is carrying on business in a building adjoining plaintiff's place of business. The present action is one of injunction, and by its decree, among other things, the court ordered defendant to refrain from further use of the name "Mechanical Store" as the designation of his place of business, and further decreed that defendant maintain and place in a conspicuous part of his store, and also in a conspicuous 532 place on the outside or front thereof, a sign showing the proprietorship of his said store, in letters sufficiently large to be plainly observable by passers-by and customers entering therein. Defendant appeals from the foregoing portions of the judgment. The judgment is based upon certain findings of fact made by the trial court upon the evidence offered at the trial, and no complaint is now heard that this evidence does not fully support those findings. It therefore follows that the merit of this appeal presents itself upon a consideration of those findings and the decree based thereon. These findings of fact are full and in detail, and for present purposes we deem it sufficient to state the general tenor and effect of some of them. 1. The court finds that, on or about the eighth day of October, 1874, H. Weinstock and D. Lubin entered into a copartnership under the firm name and style of Weinstock & Lubin of the city of Sacramento, and as such partners engaged in the business of dealing in wearing apparel for men, women, and children, and that said Weinstock & Lubin selected as the name of their place of business "Mechanics' Store," and designated the same by that appellation, by which name their said store thenceforth was continually known; that in the management and conduct of their business they fixed a price upon each and every article carried by them in the stock of said store, and marked the said prices in figures upon each article, and sold such articles at the prices so marked, and never deviated therefrom; and they advertised the said method of doing business extensively throughout the entire Pacific coast by means of newspapers, etc., by means whereof their said method of doing business became widely known to the trade and public throughout the entire Pacific coast, and by reason whereof it became and was well known to the trade and public in California and the other states and territories of the Pacific coast that at the store of said Weinstock & Lubin only one price was 533 charged for goods sold therein, and that no deviation from said price was permitted. 2. That by care, attention, skill, and strict adherence to business and the rules as aforesaid, this plaintiff has materially increased the volume and importance and value of said business, and enhanced the goodwill thereof, and the said plaintiff has established for the said store and business throughout the said states and territories a wide and honorable reputation, and thereby said business has become extensive and valuable and profitable, and the public have become accustomed to plaintiff's said method of doing business and have been induced to rely, and do rely, upon the good faith of the plaintiff in managing and conducting his business in the manner aforesaid, and by reason thereof have been induced to bestow, and do bestow, upon the plaintiff their custom, trade, patronage, and business. 3. That on or about 1885 the defendant, who had previously been engaged in business elsewhere, and was without any established reputation of his own, and whose business was unknown to the trade and general public, removed his business from the place he then occupied to the premises on the east of and near the premises of this plaintiff, and the defendant then and there engaged in a similar line of trade as this plaintiff, and ever since then he has maintained and conducted, and still maintains and conducts, the said store at said place, and carries on the said business therein; and he named his store in the year 1887, or thereabouts, the "Mechanical Store." 4. That the defendant well knowing the foregoing facts, and contriving, intending, and designing fraudulently to injure this plaintiff, and to obtain undue advantage of plaintiff, and to deprive the plaintiff of its business, and fraudulently and unlawfully to increase his own business, and to pirate and make use of and appropriate to himself the goodwill of the plaintiff's business, and the said reputation and honorable esteem and confidence that the plaintiff enjoyed in the 534 minds of the people of the Pacific coast, and in order to create confusion in the public mind, and to take advantage of the standing that the plaintiff by its aforesaid acts had acquired in said territory, and fraudulently designing to deceive the public and people intending to trade with the plaintiff, and to divert the custom of the plaintiff to himself, and to deprive the plaintiff of its customers and of the trade, and to induce the people to trade with the defendant under the belief that they were trading with the plaintiff, and for the purpose of deceiving plaintiff's customers and persons intending to trade with plaintiff into believing that the defendant's store was that of the plaintiff, and thereby inducing them to enter said store of defendant to trade with said defendant, to his profit, and in order to carry out his fraudulent and corrupt designs as aforesaid, the defendant has persistently carried out a system of deceit and misrepresentations concerning his store and its ownership, in connection with plaintiff's store and business, as follows: That in 1891 plaintiff, at its place of business, erected a store, the front of which is of peculiar architecture, containing arches and alcoves, of which there was none other similar in the city of Sacramento; that afterward the defendant, at his said place of business, and adjoining plaintiff's store, erected a building which, so far as the first or lower story is concerned, was and is similar in architecture in every respect to the store of plaintiff; so much so that passersby were liable to go into the store of defendant thinking that they were entering the store of plaintiff, and that customers of plaintiff in many instances did so enter the store of defendant, thinking they were in the store of plaintiff. That defendant had no sign inside of his store or on the outside of his store by which customers could for themselves ascertain the true proprietorship thereof; that the erection of the defendant's building exactly the same as plaintiff's building in every particular, and the adoption of the use of the words "Mechanical Store," and the absence of any name or sign 535 upon or in defendant's store designating the true proprietorship of defendant's store, were all done by the defendant for the purpose of dceiving the public, and more especially plaintiff's customers, and enticing and pirating and securing the patronage of said customers from plaintiff to defendant. 5. That by the aforsaid means the defendant has diverted from the plaintiff a large part of plaintiff's trade and custom; has induced many persons to trade with the defendant who otherwise would have traded with the plaintiff; has sold large quantities of goods in said store to persons who, but for said acts of defendant, would have purchased said goods of the plaintiff; has deprived the plaintiff of a large share of its legitimate profits; has injured the business and reputation of the plaintiff; has impaired the confidence of the public in the plaintiff and its method of doing business, and has deprived the plaintiff of a large number of its customers and patrons. The foregoing chapter of facts makes interesting reading, and we first turn our attention to that portion of the judgment restraining defendant from the further use of the words "Mechanical Store," as a designation of his place of business. see but little difficulty in arriving at a conclusion upon this branch of the case. Defendant assails the judgment in this particular with but a single weapon. He insists that the words "Mechanics' Store" are not the subject of trademark, and that, therefore, plaintiff can have no exclusive right to them. As we view the picture presented by the findings of fact, the question as to what may or may not be the subject of trademark is not the problem to be solved. That these words are of a kind that may be used as a trade name we have no doubt, and, having established that fact, we are required to pursue the investigation no further. That certain names and designations which may not H |