Walker v. Berger , 148 Ga. 326 ( 1918 )

Gilbert, J.

1. The assignment' of error on the exceptions pendente lite will not be considered, because the petitioner offered an amendment to meet the demurrer (which was conditionally sustained), thus submitting to the ruling. Adams v. Ga. Ry. &c. Co., 142 Ga. 497 (83 S. E. 131).

2. The defendants contend that the amendment should not be allowed, because, after paragraphs five to nineteen of the petition were stricken, there was not enough left to amend by. The same amendment which struck these paragraphs, also added’other paragraphs in lieu of those stricken. The desired additions to the petition need not be made by. a separate amendment before the objectionable portions are stricken, when the same end may be reached by one amendment striking the parts desired to be eliminated, and at the same adding the allegations desired in lieu thereof. “It is better to preserve what has been done and improve it than to throw it'away.” Ellison v. Ga. R. Co., 87 Ga. 691 (2), 697 (13 S. E. 809). As to what constitutes enough to amend by, see Idem, 692 (6).’

3: Striking the allegation that the plaintiff was damaged in a specified sum and adding a prayer for accounting did not set up a new and distinct cause of action. “No new and distinct cause of action is added to a petition by an amendment which contains additional matter descriptive of the same wrong pleaded in the original petition, and which does not plead any other or different wrong.” City of Columbus v. Anglin, 120 Ga. 785 (5), 793 (48 S. E. 318). See Causey v. Causey, 106 Ga. 188, 193 (32 S. E. 138).

4. “It is well settled that the discoverer of a medical preparation or formula, even though such preparation be not patentable, has, like an author or an inventor, a property right in the product of his mental labors. This right was recognized at common law, independently of copyright or letters patent. . . One who, by reason of confidential business relations with the discoverer, has gained possession of his trade secret, will be restrained by a court of equity from betraying the trust reposed in him by using the formula for his own gain.” Stewart v. Hook, 118 Ga. 445, 446, 447 (45 S. E. 369, 63 L. R. A. 255). “The jurisdiction of equity to restrain the infringement of trade-marks is exercised for the protection of a legal right in property.” Bispham’s Principles of Equity (9th ed.), § 456 et seq.; High on Injunctions, § 1021. The allegations and prayer for an accounting are incidental and appropriate to the relief by way of injunction. Civil Code, § 4632; Hagan & Dodd Co. v. Rigbers, 1 Ga. App. 100 (57 S. E. 970); Roberts v. Vest, 126 Ala. 355 (28 So. 412). This is particularly so under the facts of this case. The breaches of contract, if true as alleged in the petition, are peculiarly within the breast and knowledge of the defendants, and discovery by them affords the most complete and satisfactory method for the- ascertainment of the facts. Eor the reasons stated we think the court erred in disallowing the amendment and dismissing the petition. We will not rule upon the special demurrers, as the effect of the judgment of the court was .to dismiss the suit in its entirety, without reference to the special demurrers. Judgment reversed.

All the Justices concur.