GODDaRD O. WILDE.
URNItR V. KAYTON.
(OlrClIit Oourt, S. D. NClo York.
August 16, 1883.)
PATENTS FOR INVEN'l'IONS-brFRINGEMENT-COSTS.
Where, in an accounting for profits and damages for Infringement of a patent, the orator has recovered on the merits, and the defendant has not prevailed upon any is.ne upon any distinct item in the case, the costs will not be apportioned, but detcndant held liaLle for tho Whole amount.
lIfr. COlllstoclc, for orator. Mr. O'Callaghan, for defendant.
WHEELEP., J. The defendant, on accounting for profits ana aamages for infringement of patent, has, under order of court, paid the master's fees, and moves for an apportionment of costs on the final decree for the orator for $100 profits. The omtor has a substantial recovery on the merits for the wrongful invasion of his rights by the defendant. The defendant has not prevailed upon any issue upon any distinct item made in the case, so far as is made to appear. The costs are all the consequence of his wrongful acts for whicll the orator has recovered, and should be borne by him. Motion for apportiolllllent denied.
May 10, 1883.)
(Oircuit Court, D. Rhode Island.
PATENT-CONTRACT TO 8ELI,.
Until a contract is set asUe a party thereto mflybe restrained, at the of the other party, from selhng his patent in viola' ion of the terms of snch COhtract, though the court may be una LIe to enforce a specific performance of it.
HDfEDY AT LAW.
. As the equita Ill.e :emedr is more practical and efficil'nt to the ends of justice Iln such cases, an IIlJ unctIOn may be granted, altllOugh plaintitI has a remedy at
SlIch an instrument is a contract and not a power of attorney. revocahle at the pleasure of the maker, and is guod until set aside upun a proper pro. ceedlUg.
In Equity. Motion for a preliminary injunction. Wm. A. Jlacleod, for complainant. Chas. A. Wilson, for defendant. COLT, J. The plaintiff in this case claims the exclusive rirrht to sell within the United States the Wilde patent button, under: contract under seal with the Wilde, the patentee. Subsequent to the date of the contract, lhlde sold a half mterest in the patent
to the dfJfendant Bowen, and entered intopartnel'ship with him for the manufacture and sale of the button. Goddard now aeks that Wilde and Bowen be restrained from selling the button until P.. fun hearing can be had npon the merits of the case. It is urged in defense that Goddard was guilty of fraud in ing the contract. According to the affidavits of Wilde and his WIfe, this contract was to have no force and effect, but was signed merely fo show the good faith of. the contracting parties. They claim that the real con tract agreed upon was essentially different from this, and that GoudaI'd agreed to have the real contract drawn up and sent to Wilde the next day, when this one was to be returned. Without expressing any opinion upon the merits of the controversy at this stage of the proceedings, we think the plaintiff is entitled to protection under his contract until it is set aside, and that he may fairly claim that Wilde and his partner be restraned from selling the button in violation of the terms of an existing contract. Singer llJannj'g Co. v. Ullion Button-hole d; Emuroidery Co. 6 Fisher, 480; S. C. 1 Holmes, 253. The objection is also urged that the complainant has a plain and adequate remedy at law, Lut the equitable remedy is often invoked in cases of this character as more practical and efficient to the ends of justice. Hill V. Whitcomu, 1 Holmes, 322; Wylie ,. Coxe, 15 How. 415. Nor is it true that Wilde can revoke the authority to sell. An instrument of this character is a contract, and not a power of attorney revocable at the pleasure of the malier. It is good until set aside upon a proper proceeding, Burdell v. Denig, D2 U. S. 716. Nor is the objection sound that, because the court may not be able to decree a specific performance in this case, an injunction will not lie. In Singer l1Janllfg Co. v. Union Button-hole d: Embroidery Co., before cited, this question was carefully considered by Judge LOWELL, and the conclusion reached that the conrt can restrain a party from selling in violation of his agreement, though it may be unaLle to enforce a specific performance of it. When speaking of the agreement as the grant of an exclusive license to sell the patented machine, the court observes: "And it has never yet been doubted that the court could restrain all persons, whether they were acting with or without notice, and whether bound by contract or not, from trespassing on such a title." Injunction granted.
THE STATE OF ALaBAMA.
STATE OF ALABAMA.
(Distl'ict COUl·t, S. D. New Yorlc.
September 7, 1883.)
AmnnAI.Ty-COI.LISION-HuLE 21-J\IODERATE SPEED-FoG.
The moderate speed required steamers in a fog by rule 21, is materiallv less than the vessel's ordinary full speed; it has reference to all the circumstances affecting- the steamer's ability to keep out of the way, including her owu power in backing, and requires a l'eduction of speed according to the densitvof the fog. Whenever the fog is sufficieut to increase materially the dangei·s of navigation, a given speed may be moderate for a swift vessel. which would be excessive for a slow one having less power to stop and baek qnickly
Whcre there is danger of collision, prompt backing, as well as stopping the engines, is incnmbent on the steamer, and any delay in ordering the engines reversed is at her risk.
OF OF JunmIENT.
An erroneous order to change the helm, owing to the lookout's mistaking the main try-sail for the head-sails when first dimly Feen through the fog, the mistake beiiIgcorrected as soon as it could be perceived, held, error of judgnlent and not a fault.
Au o\'crtaking vessel is one coming up astern of the proper rnnge of th6leading vesscJ's coloredside-lights; i. c., more than two points aft of aLeam. S.UlE-FLASll-LIGIIT-HEV. ST. § 42:34. The American law (section 42:)4, Hev. St.) requiring a flash-light to l;e exhiLi ted to an overtaking vessel is not applicable, as the law of the forum, to a co:lision between vessels belonging to two different foreign nationalities, neither of which requires such a light, according to its own maritime law.
Ko stern-light or !lash-light was formerly required by the English regulations; and the maritimc law, as construed by thc English courls previolIS to the ncw rules of 1880, did not make the exhibition of such a lip:ht indispensable, but only one of various signals wh;ch might be adopted by the leading vesscl to 'yarn an overtaking vessel of her wlH,reahouts. Semble, the Frenehlaw is similar.
S.UlE-SIGNALS BY I-Ionxs SUFFICIEXT.
Where a fog was such that a steamer used her fog-whistles. and a brig hcr fog-horn, held, the latter's blow,ng three fog-horns continuolH;]y from the time the steamer was oLserved, was a sufficient compliance with the former English and French maritime law as a signal to an overtaking steamer, if the latter were in fact astern of the range of the llrig's lights.
S.UIE-CIlAXGE OF COUHSE IX EXTHDllS.
V,here a brig lurred less than half a minutc l>cfore a collision, which seemed to be instantly impending amidships, in order to save her small boats, hP/d, a change In extremis, and not a fault, though the change was useless and erroneous.
"'here the p-reat preponderancc of testimony showcd the mode and' conditions of the to Le such that the stcamer could not haye been of the range of the brig's red light, if properly set anL! burnin!::, allil no red light 'lYas se.en by an .alert lookout on the steamer, or by ber omeers, who were all watclnn,g the bng, and a change of 11('lm was made by the sTeamer upon a mistake of the brig's course, which mistnke could not have Leeu matle haJ the red light been seen, and the evidence leing also unsatisfactory as to thc trimming and proper adjustment of the llrig's eolured lights, no screens beil'g used, but the poop-rail used instl'ad,hp!:i, that though most of the brig'S witnesses testi. fied that the red light was lmrni'1g briglltly, superior credit should Le given to the steamer's witnesses that no retl light was visillle, and the Lrig was held in faull.