Majority
p. 552GEORGE W. WESTON, et al., v. FREDERICK O. KETCHUM, et al.[1] Before Monell, Ch. J., Curtis and Speir, JJ. Heard April, 1875; Decided May 3, 1875.
Headnote
MOTION FOB EE-ARGUMENT OF APPEAL ON GROUND THAT THE COURT OVERLOOKED IMPORTANT TESTIMONY.1. Necessary to show what.
1. The moving party must show that the court had not in fact considered all the evidence.
2. What does hot show this.
1. It does not follow, from the court’s referring in the opinion to parts of the testimony only, that it did not consider the whole.
a. This although it speaks of the evidence thus referred to as being undisputed, and disposes of the case upon such view of the testimony.
8. In the case at bar, however, the evidence referred to as having been overlooked does not disturb the harmony of the evidence upon which the former general term proceeded in its decision.
A. J. Perry, for the plaintiff.
F. W. Angel, for the defendant.
The testimony which it was claimed that the court overlooked was that of Mrs. Perry. The present general term were of opinion that her agreement with Weston had respect to the secret of compounding the oil,
p. 553
and to its manufacture, rather than to the use merely of the trademark; and that the fact that she made it with Weston, and in the presence of Ketchum, and apparently with his assent, did not destroy, but rather strengthened the equity upon which the previous general term placed its opinion.
wrote for denying the motion, with costs, for the reasons above stated.
Curtis and Speir, JJ., concurred.