TIMKEN ". OLiN.
169
formation demanded by the defendant, but here, again, the defendant never at any time insisted that it had a right to abrogate the contracts for this reason. It did insist, and the complainant appears to have conceded its right to do so, that it was entitled to all information relating to the sale of its property which the complainant possessed. Several orders were delayed until this information was forthcoming. There is no evidence that the defendant ever refused to fill an order on this ground alone. The information seems to have satisfied the defendant sufficiently to induce it to accept the orders. After the letter of September, 1886, whieh was agreed to by the complainant, and so settled definitely certain matters previously in dispute, it is thought that there was no romp for complaint against the complainant upon this ground. The agreement of 1885 being a mere extension of the time in which payments were to be made was not void under the statute of frauds or otherwise. Such agreements have frequently beell upheld. Canal. Co. v. Ra.y, 101 U. S. 527; Homer v. Insurance Co., 67 N. Y.478. A number of matters now involved in doubt might have been IIl'ade clear if the court had had the benefit of the testimony of the chief actors in this' Ml1troversy, but they ha.ve not been called on either side. Upon the record 9.S presented the court is forced to the conclusion that thb originltl oontracts were modified in 1885 and, as so modified, have been performEld by the complainant in all material matters. The opinion was formed at :the hearing that the argument of the defendant's counsel that these contracts are of such a character that they cannot be specifically enforced, was unanswerable. This opinion is still entertained, but it is thought that the bilI may be retained for the purposes of an injunction and an account. Sewing-Machtine Co. v. Firrir broidery Co., 1 Holmes, 253. By the terms of the contracts the defendant is especially prohibited from selling in the designated territory any of the machinery in question. The exclusive right to do this is given to the complainant. If, from the nature of the agreement, the court cannot give the profits of this business to the complainant, it should, at least, restrain the defendant from reaping them, particularly where. as in this cause, the remedy at law is wholly inadequate. There should be a decree for the complainant for an injunction and an accounting.
TIMKEN V.
OLIN et al.
(Circuit Cowrt, S. D. Ohio. W. D·. January 15,1890.) L A master's report that there was an established license fee for the useot a pat. ented, article is sufficient to sustain a finding of damages to the amount of anoh lee, OJ' MASTER.
though the evidence was oral, and no license was introduced.
. .. ,
2.
Parol evidence as to the existence of an established license for a patent is. Qllt. hearsay.' , . , . ,
. :
c1.70
FEDERAL
vol. 41. ,,' " ., : "
,,., 'Where, defendants infringe on complainant's rights, it is immaterial whether " ". they were acting'ln good faith, or under the supposed protection of lettei's patent, ,Where aAtual,dliomages 0wy !U"e allowell., " . . , .' "SAME;"':MANUFACTURE,BY COMPLAINANT'S LIOIliNSEES.
FOR INVENTION....,INFRINGEMBNT,....DAJ,JAGEg.
. "5.
: It iano defense that the infringingar't:icle made under defendants' patent was 'P'lIlI;lUfactured the latter did not account forthem to complainant, uor consider them within their license. .An exeeption that the master's report returned profits made by defendants, though profits were waiye,<J, ill gro\1.ndlesB, where the master makes his finding on the measute of the license fee alone. ' . , , .,
,
6. PATBN'rS I/ORINVENTION;";'INJ'RINGEHENT-:A.:1'1'ORTIONMENT OF DAMAGES. 'suit for }nfJ.:ingemjlntof patents '9f 4i.ffeJ.'ent dates, damages need. not be ap,portIoned for Infrlngelflent of each.
'T;'SiKE---l'd:usURE OF DXMAGES.
r:
The license fee Is the propermeastlre of' damages, and it is imIilaterial whether or, D1Qt is fQullda,tion patent. ,': :
",
,rq,'l£q,nity., On O. !iJocles, for
w.
report. ."" .'. .. ,'c. :, -: 1; j I
,'-!,>;'i:
i (J,'
is ,tothemaater's fiuding",that the comto thE! 3mQUnt of by, ,complainant, whereas fl3es have been:proven"and no in :evidenea, and, :that there was nothing but hearrelation Wi any will The m8,$ter a;n e$ti\blished lioense the; Use ofthe spriQgsj as;!lppfaarE! by complainant's testirnony.in ,tAe That is, snfficilmt to sustain the finding. Whetherany Ji!le,QSfi!iWas :introduce4, evidence is wholly and the objectiCjln. oral testhnol;\vt() prove an !'lstablished liceuse not weUJQundEld. Wooster v. 20 Fed. Rep. 316. ." .T4e §lecood exceptiQlilowilJ, also be overroled. Whether the defendants notic\3,tJ;I,atthey were,infringing complainant's rights, .and toJnfringe;aftel{ ,such the.maater's finding, is f,!¥sp.»iQilai.;erial the report,is f01" actual ,damages.only, and, the infringement ,estlitpUshed, the ito gamages d,oes not depend upon the knowledge or the ignorance of the defendants as to the complainant's rights. He is entitled to compensation upon proof of infringement, whether defendants were acting in good faith, or under the supposed protection of letters patent, or not. The master's report gives to the complainant (lnly in, the, way of damages. The third exception is that diSregards the testimony of the complainant's,own tq,the springs commade and 'sold't6 the defe'n'dants by the licensees of complained of plainant. The proposition of the counsel ,for the defendants is, in effect, t. :l;iltd': .·.1pan'titacturecl' l!ooJ,\see; ls &"complete defense to, the complainant's suit for profits or damages." It i,s not, pmven ,or, claime,d' that
This A"Apo,rt.The,
M, fQr,hea.cing upon; exceptions to the ntas-
+'
.,
ot' sblt:t Spririgs''llir tn:e
iii license. On the contrary, they were manufactured under the defendants' patent, the licenseesn6t Rcc()unting:fOl'them to the complainant, but, on nor regarding them as being within the terms of their the contrary I being assured by the tlieywe're not an infringement of complainant's patents. The complainant might, had he so chosen, have included the licensees as defendants. ,The statement of the proposition that all that is necessary for an infringer to do, in order to escape liability for his infringement, is to procure the manufacture of the infringing article by a licensee of the complainant, is sufficient for its refutation. The exception is overruled. The fourth exception is in co'nflict with the facts as fot;lud by thellinstel' in accordance with the testimony, and is overruled. The "the master has returned profits ,as made, by defendfi.nts, none have been proven, and profits were waived by complaimmt,"'Jianot well taken. The master refers, ,in his report" to profits made by defendants, but the reference is to ofthe business of the defendants during the time of their allowance for ,certain items of expense, to ,which the Illaster were en'titledjbrit his finding"of the indebtedness onile to the ccmfplaibitnt is exdusively upon the license fee as the proper me:a,B-: ure of damages. The fifth exception is therefore overruled. The sixth exception and seventh exception.. are also overruled. There is nothing but the statement of counsel to sustain either of these exceptions. I do not find anything in the record sustaining the eighth, ninth, tenth, or eleventh exceptions. 'They are also overruledi' ' Counsel for the defendants has in his brief restated propositions against the validity of patents. The patents having been sustained, those propositions will not be considered. Counsel refers to tile fact that tPere are three patents in suit, that theyvalj in date; ;a:nd that' the damages for infringement of ,each have not been apportioned. ". But the fact of infringement has been established, which' ,is 1;111 that i$ necessary.. The proposition made "by counsel that there should be an appor-' tionment is'as novel as it is unsound. , It qrged that license are not a proper measure of damages, unless the patent sued upon is a foundation patent. Thisis"8 remarkableprgposition, and aqthority. ,The supreme conrt, in Seymourv. McOaimick, 16 How. 480, (one of the earlier cases,) refers' to the license fee as indicating the market vahieof the patent, and that is the principle upon which it is l,'ecognized as a rule Of'ditmages;)6stas the price which people pay in market for wheat is recognized" rect measure of its value. Whether the patent beafdumlation patent is wholly immaterial. . The true question iswhether. there is anestabHabed :liceflse fee. .'The mllSterhas properly found this of , the complainant', and his report is correct, and will 'The for complainant for the , 1 .
'.
"
DDERAL BEPORTBR,
vol. 41..
SMITH fl. DAVIDSON. (c-trcwtt
C?ourt. D. Minnesota.
,December Term, 1889.)
EVIDENCE-ADMIIISIONS I;N SUPERSEDED PLEADINGS.
Where an amended answer has been flIed as a substitute for the original, the latter, v,erifledby defendant's attorney, is inadmissible in evidence as an admission by defendant of the facts therein stated.
At Law. On motion for new trial. Davis, KeUogg & Severance, for plaintiff. ' Lusk & Bunn, for defendant. by oneofthe for the defendant,tO be offered in evidenoe!lsan by ,the defendant of the facts therein stated. An amended answer been filed to, ,ta}re the viace of the original, it should'pave been' from the jury. The ruling of the court, having, ,been properly excepted to, the defendant is to a new such trial grltnted. Costs to abide the event of the SUt.
NJJlLSON;J.' , I think the court erted in permitting the original
EGGENBERGER fl. GUARANTEE MUT. ACCIDENT ASS'N. ".' ' . ,',
(Circuit Oourt, AccmENT
D. Minnesota. December, 1889.) Oll POLIOY. '
" ' Under certificate of accident insurance, providing that it "shall not extend to i 'i,)ljuJ;ies of which there is no visible mark on the body of the insured, " nor to death ,resultinA' from various causes, the cOW{lany is liable, in case of accidental 411ath, ,;, though there was no visible mark of the Injury ,on ,the body. ' The occupation of a wood-chopper being .classed as more hazardous tban that of a stationary engineer, in which latter class, deceased was and he having been',fata,'UY in,J,U,"red w,,lIile'tlhOPPingflre-W,OO,d for bis own use, the question for the jury is whether he was injll;red while, an actpecllliarly ,embraced in · tlie 'occupation of ,a wood-chopper, !Ind n9tln that of stationary I!on,d" '!"'Dot 'simply wbether he was engaged tempbrarily in an occupation more hazardous' < ' tb,a,n ot , :, ,) , ' ' ,
a
'tt Law., ;"$tle1: & ,How; .. · · >,
for newtrilil.\, for plaintiff'. I '. . _ . (
"This actlo,n was upl:m. .the
,to plaiQtift"a Py ac9Ident, to ber. ,
external, VIOlent, and accIdental means, and If death should result from such injuries alone, and within 90 days, agreeing to pay the plaintiff 83,000. The occupation of the plaintiff was stated in the application