knew or had means of knowing the fixed price of the type, or pattern of the car that he wished to purchase. He also knew that in the absence of a contract to the contrary the price would be the fair market price of any car he might select. Placing ourselves in the position of the parties at the time the contract was made we feel convinced that a compliance with its terms will work no hardship against plaintiff, and that it may be equitably performed.

The judgment is affirmed.

Myers, J., Lawlor, J., Waste, J., and Wilbur, C. J., concurred.

Rehearing denied.

All the Justices concurred, except Lennon, J., who dissented.

[L. A. No. 7260. In Bank.-March 7, 1923.]

A. LUTZ, etc., Respondent, v. WESTERN IRON AND METAL COMPANY (a Corporation), et al., Appellants.

[1] INJUNCTION USE OF NAME- PLEADING SUFFICIENCY OF COMPLAINT. In this action to enjoin the defendants from using a certain name and conducting business thereunder it is held that the complaint states a cause of action.

[2] PLEADING-RESULTS.-A pleader is not required to describe in extenso by a superfluity of words a result that must inevitably follow, provided the premises of a stated proposition be acceded to. [3] INJUNCTION-DISSOLUTION OF DENIALS OF ANSWER.-It is not in every case that a temporary injunction will be dissolved or refused for a failure of a plaintiff to meet a verified answer specifically denying every material allegation of the complaint. There may be peculiar circumstances in a case justifying a temporary injunction even in the face of the absolute denials of the answer. [4] ID. PRIOR USE OF TRADE NAME-INJUNCTIVE RELIEF.-In an ac tion to enjoin the use of a certain name and the conducting of business thereunder, where the complaint positively avers that plaintiff was first in time in business and first in the selection of

a combination of words as a designation of a business which he had established and conducted some six or seven years before defendants entered the field, and which business was extensive and to the development of which plaintiff had expended much time and devoted energy and skill, the case is a proper one for injunctive relief.

[5] ID.-DISCRETION OF TRIAL COURT.-The granting, denying, dissolving or refusing to dissolve a preliminary or temporary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case. [6] ID.-PARTIES-JOINDER OF CORPORATION AND ITS OFFICERS.-In an action to enjoin the use of a certain name and the conducting of business thereunder, there is no misjoinder of parties defendant, where the officers of the defendant corporation which is using the name are joined with it.

APPEAL from orders of the Superior Court of Los Angeles County overruling demurrers and continuing restraining order. Charles S. Crail, Judge. Affirmed.

The facts are stated in the opinion of the court.

Joseph L. Lewinson and William A. Barnhill for Appellants.

R. F. Church and Timon E. Owens for Respondent.

SEAWELL, J.-This is an action by respondent doing business under the fictitious name of Western Iron and Metal Company for an injunction against the Western Iron and Metal Company, a corporation, and Albert K. Lucas, Lester W. Roth, and David H. Miller, organizers, and, as shown by the answer, officers of said corporation, praying that the latter be enjoined from using the name Western Iron and Metal Company and from conducting business thereunder in the city of Los Angeles and elsewhere, and from using said name in any manner whatsoever, and for general relief and costs. No special damages are pleaded or claimed. Relief is sought on the ground of unfair dealing on the part of defendants.

A temporary restraining order was granted upon the verified complaint without notice, respondent being required to file a bond in the sum of $1,000. After hearing on the order to show cause the trial court made an order continuing

in effect the restraining order to abide a decision of the cause on its merits. The action of the court in this respect was equivalent to the granting of a temporary injunction.

The complaint sets out the acts complained of with considerable elaboration. Demurrers, both general and special, were interposed to the complaint, which were overruled by the court. A verified answer was filed by appellants.

This appeal is taken from the order overruling said demurrers and continuing said restraining order in force as aforesaid.

[1] The only ground of demurrer which we are required. to pass upon at this time is whether or not a cause of action is stated by the complaint. That a cause of action is stated we entertain no serious doubt. It is not necessary to set out the allegations of the complaint in full. The portions descriptive of respondent's business are that on the first day of October, 1915, he commenced business in said city of Los Angeles and ever since said time has been and is still engaged in conducting in said city "an extensive and profitable wholesale and retail iron, metal and machinery business both new and second-hand, and a general iron and scrap iron business; that in said business respondent buys and sells all kinds of machinery and supplies and acts as agent in buying and selling all kinds of machinery and necessary supplies therefor both manufactured and unmanufactured; that he is also engaged in the business of buying and selling new and second-hand engines, boilers, machinery, grading equipment, tools, machine shops and electrical supplies and appliances, foundry and factory supplies and hardware of all kinds in all parts of the state of California, and several of the principal cities of the United States west of the Rocky Mountains; that by reason of the competent and efficient manner in which respondent has ever since October, 1915, and does now conduct said business, and by reason of advertising said business under said fictitious firm name of Western Iron and Metal Company, respondent has acquired and now commands an extensive patronage in the city of Los Angeles and throughout the state of California, and that he has acquired under said name and now enjoys a goodwill therein of great value." The usual allegations of damage and injury that would accrue to respondent if appellants, a competitor, be permitted to do business under

the same name heretofore adopted by respondent and to advertise said business under said name follow.

It is admitted that appellant, said Western Iron and Metal Company, was duly incorporated on January 7, 1922, with its principal place of business at the city of Los Angeles. That thereupon David H. Miller was elected president, Lester W. Roth, vice-president, and Albert K. Lucas, secretary and treasurer, of said corporation. Said defendant corporation had not at the time of filing its answer been granted permission by the state corporation commissioner to issue or sell any of its capital stock upon its application made January 18, 1922. Appellant corporation denied that it is about to engage in an extensive campaign. of advertising its said business under the name of the Western Iron and Metal Company, but does admit that it intends to advertise its name and its said business in the manner usually employed by persons conducting a business of a similar character.

Before bringing the action respondent filed with the county clerk of Los Angeles County a certificate setting out the name in full of his business, the place of business, and gave due notice of publication of said certificate as required of every person transacting business in this state under a fictitious name by the provisions of section 2466 of the Civil Code.

On the sixteenth day of January, 1922, before appellants made application to the corporation commissioner to issue or sell any stock they were notified by respondent that by reason of the latter having conducted the business heretofore described for a great many years prior to said day last above named under the name of Western Iron and Metal Company he had acquired the right to use the same, and demanded that appellants, and each of them, refrain from using said name, but appellants have at all times refused to refrain from using said name.

As an answer to the earnest objection made by appellants that the complaint is lacking in necessary and substantial averments and that no allegations of ultimate facts are set out, but conclusions of law merely are pleaded, we deem it sufficient to quote therefrom. It alleges that appellants "organized said corporation and adopted said name therefor with the intent and for the purpose of defrauding plain

tiff and appropriating for their own use and benefit the goodwill of plaintiff's business and deluding and deceiving plaintiff's customers and the public in general into the belief that the business of plaintiff conducted at said city of Los Angeles would be and was being conducted by defendants. Plaintiff is informed and believes, and on that ground alleges, that defendants are about to commence, and to continue unless restrained by this court, an extensive campaign of advertising their said business under said name of Western Iron and Metal Company and that if said defendants so advertise their said business they will actually mislead many customers of the plaintiff, both actual and prospective, to patronize said defendant Western Iron and Metal Company in the belief that the said persons were and are patronizing the plaintiff.

"That if the defendants herein and each of and all of them are permitted to carry on business under the corporate name of Western Iron and Metal Company at said city of Los Angeles, or elsewhere, the prospective customers of plaintiff and the public in general will, at all times be deceived, misled and defrauded into believing that the business so conducted by defendants is the business of plaintiff, all of which is and will be, to the injury and damage of plaintiff and to the public in general.

"That unless restrained from so doing by the court the defendants will continue and proceed to carry on their said business under the said name of Western Iron and Metal Company, a corporation, for and with the express purpose of deceiving plaintiff's customers and the public in general into the belief that plaintiff's business is defendant's business; that the name adopted by said defendants was at all times and is now, calculated and intended to deceive customers of plaintiff herein, together with the public in general; that each and all of the acts of said defendants so made with the intention and purpose of defrauding and deceiving and influencing the business and injuring plaintiff have created and will continue to create much confusion in plaintiff's said business; that plaintiff gave to his said business the fictitious firm name of Western Iron and Metal Company and for more than five (5) years last past has conducted said business under said name; that plaintiff has no plain, speedy and adequate remedy at law and that