BRusa-swAN ELIl:CTRIC LIGHT CO. V. BRUSH ELECTRIC CO.
7
this discount and commission upon machinery and apparatus sold in the specified territory. The stipulation entered into between the attorneys recognizes the loss of this percentage as the true rule for the assessment of the complainant's damages. It is the true rule. On the 2d of June, 1890, the defendant granted an exclusive license, under various patents for improvements in secondary batteries, to the Consolidateli Electric Storage Company! The license covered the entire United States and the territories thereof. The consideration for this license was $65,000 in cash and certain. annual royalties. The proof shows. that the $65 ,000 Was paid pursuant to the terms of the agreement. There is no proof Of other payments. The complainant insists that it is entitled to recover the entire sum of $65,000 as damages. I am of the opinion that the master was correct in disallowing this claim. There were no facts before him from which he could formulate a correct rule of damages. There was no proof of the sale by the defendant or the storage company of a single secondary battery in the complainant's territory. There was no proof that the storage company had done any act in 1l0stility to the complainant's interests, or that complainant had lost a sale because of the license. So far as this evidence goes there was a mere transfer of rights under certain letters patent. The complainant derived no pecuniary benefit from these patents while the defendant controlled them, and nothing has yet been shown which entitles the complainant to remuneration now. Certainly the mere transfer of the patents from one corporation to another does not confer that right. Even assuming that the complainant is entitled to some partof the $65,000, there is nothing to show what part. That sum was paid for a license extending throughout the entire country. There is nothing to show what the rights so transferred, if confined to the complainant's territory, would be worth. The situation appears to be. one where the language of the supreme court in Machinery Co. v. Dolph, 138 U. S. 617, 11 Sup. Ct. Rep. 412, seems applicable: "On breach of such a contract, the principal matter in respect to which provision was made Is the one to be mainly regarded. If subordinate provisions are clear and defini te, and damap:es for disregard thereof determinable by plain and obvious rules. of course llnch damages may be recovered; but if because thf'y are subordinate the prOVisions in respect thereto are inllefinite. then the court may not. with the idea of preventing injustice, attempt to substitute eqUivalents therefor. The main purpose of the contract must be regarded and its specific provisions in connection therewith enforced. and proper damages gi veil for the breach thereof. A lack of certainty as to terms of contract obligations of either party. or measure of damages for breach, is simply the misfortune of him who seeks to reCOver in case of a breach thereof." The exception is overruled and the report of the master is confirmed.
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· BRUSH ELECTRIC
FEDERAL REPORTER,
voL 49. Co. OF
CO.
t1. BRUSH-SWAN ELECTRIC LIGHT ENGLAND.
NEW
(Oircuit Ooun, S. D. New Yorko January 16,1892.) PBmOIPAf, AND. AGENT-CANOELLATION OJ!' CONTRAOT.
, ,., .The Brush Eleotrio Company constituted a certain corporation its agent for a period of yeara for the sale of its machines In New Enll:land and other eastern states. Disagreements arose between them, and at length the Brush Company refused to furnish more machines under the contract. On suit by the New England Com. pany the contract was upheld, but, pending further procaedings, the Brush CompanY cross-bill to oancel the contract, alleginll: that since the former decision the New England Company had come under the control of hostile influences, namely, those of the Westinghouse Company, which was engaged in manufacturing maollinesoompeting with those of the BrushCompany.. This allegation was based mainly on the ground that an 'attOrney having a merely formal relation with the New Englanll Company, and who was the legal adviser of, and personallY' interested in, severalCQr{l0rations in whloh Mr. Westinghouse was interested, had written a letter containmg' the unauthorized statement that the New England Company was "contl'olled by the WestinA'house interests," It appeared at the trial that West· inghouse and Jackson, stockholders in the Westinghouse Company, had bought a controlling interest in a oertaln illuminating compan;v. But no acts of hostility were,sllown. It further appeared that thfl illuminatmg company also had a contraot of agenoy with the Brush Company, and that since it came un4er the alleged hostile influenoes it had sold more Brush maohines than ever before. HeW, that no cause wall shown for canceling the contract.
In EqiIity. Final on cross.bill, answer, and proofs. The13rusp Electric Company, owning certain patents, and engaged in ,m!lnufaetriring electricalm.achines thereunder, had a contract with the Brush-Swan Electric Company of New England, whereby the latter was constituted.; its exclusive agent for the sale of said machines in New Englanl,l ap.dother eastern states. The contract provided, among other things, that the New England Company was to receive as compensation a certain on the selling price, and that the Brush Company ",ould notJtself sell any machines in the specified territory. Various disagreements arose between the two companies, mainly growing out of the alleged inability of the ;New En,gland Company to meet its payments provided by the contract. At length the latr to-the ter refused to furnish more machines, aud began selling them in that territory itself. On suit by the New England Company, the contract was upheld l and the complainant declared to be entitled to an injunction and'accounting. 41 Fed. Rep. 163. A rehearing was applied for arid denied. 43 Fed. Rep. 225. Afterwards leave was' given to file the which the present hearing is had. Id. 701. . Albert Stickney, and Gilbert H. Ora,wford, for crosscomplainant,cited the following authorities: ,In the ,Clase of aD the mere fact of,divided duty constitutes a breach of the employment agreement. Pearce v. Foster, 17 Q. B. Div. 536; Dieringer v. Meller, 42 Wis. 311; Da'Ooue v. Fanning, 2 Johns. Ch. 252; Michoud v. (ilirod, 4 How. 554. It would be a dflfeuse in a snit for past compensation. Murray v. Beard, 102 N. Y. at page 508,7 N. E. Rep. 553. And it might entitle the principal to damages up to the value to him of the agreement. Panama, etc., Co. v. India R'ubbel', etc., Co., L. R. 10 Ch. App.515-
H. Choate and Will'iam G. Wilson, for cross-defendant.