stEIGEB .,. BEIDELBEBGD.
It is not shown by the defendant that he had any license or permission to do so. He has, therefore, infringed patent No. 182,112. Conceding, for the purposes of this cage, that the assignment of November 4, 1872, assigns the right to improvements to be subsequently invented or patented by the ant, in or of, or in aid of, the inventions or improvements patented by-patent No. 182,111 and patent No. 132,112, it is manifest that the reasons before set forth as showing thai the inventions embraced in patent No. 172,896 and in patent No. 181,113 do not infringe patent No. 182,111, are equally cogent to show that such inventions are not improvements in, or of, or in aid of, any of the inventions or ments patented by patent No. 132,111; and it is not contended that any of such inventions are improvements in, or of, or in aid of, any invention or improvement patented by patent No. 132,112. A decision as to the proper interpretation and scope and effect of the assignment of November 4, 1872, is unnecessary. The plaintiff is not entitled to the relief it claims under said assignment, even under the interpretation of it contended for by the plaintiff. The plaintiff is entitled to the usual decree in respect of the infringement fo patent No. 132,112. The question of costs is reserved for further hear. ing.
BTEIGEB t7. HEIDELBEBGEB.
((Jirtmlt (Jowrt, 8. D. N6'UI York. November 12, 1880.)
ComnsSIoNs -INJUNCTION.-Held, under the circumstances of this case, that an employe is liable to account for the commissions derived by him from the sale of infringing goods, and that he could be enjoined from making any ·further sales. t .. SAME-EMPLoYER AND EM:PLOYlll-PLEA IN BAR.-Held,!urtMir, that a au,it against the employer in another district, for such sales, could not be pleaded in bar to a suit against such employe for an account and injunotion.
Francis Fm'oes, for plaintiff. Furman Sheppard, for defendant. BLATCHFORD, C. J. The bill in this case is filed for the infringement of a patent. It charges that the defendant has infringed by making, using, and selling the invention patented, which is an "improvement in show-cards for embroidery." The infringement is alleged to have been committed in this district and elsewhere in the United States. The bill prays for the payment of the profits made by the defendant from the infringement, and of the damages sustained by the plaintiff therefrom, and fOJ; an injunction against the defendant restraining him from making, using, or vending any showcards containing said improvement. The defendant has interposed a plea to the bill, and it has been set down for argument and argued. It sets forth that the defendant been and is employed by the persons composing the firm of Loeb & Schoenfeld, which firm is engaged in business in Philadelphia, within the jurisdiction of the circuit court of the United States for the eastern district of Pennsylvania, such persons being resident at Philadelphia; that his business is to visit divers places and exhibit to buyers samples of the goods made by said firm, and solicit offers or orders for the purchase of such goods; that such orders or offers, when received by him, are transmitted by him to the said firm in Philadelphia; that said firm, in case the offers or orders are satisfactory to it as respects price, the solvency or pecuniary ability of the proposed buyers, the terms and conditions of the proposed purchase, and other particulars, accepts the same, makes the sale, supplies the goods, charges them to the proposed buyer, and renders to him directly a bill for the same; that the defendant in such case receives a commission on the amount of the sale; that if the order or offer is not satisfactory, it is declined by the firm and no sale is made, and the defendant receives no commissions; and that he has not in any other way made or sold show-cards for embroidery containing the patented invention. 1.. The plea also sets forth (2) that before the in this suit
STElaI':B t1. HEIDELBERGER.
was filed the plaintiff filed a bill in said circuit court in Pennsylvania against the members of said firm, for an infringement of said patent by them, by making, using, and selling show-cards for embroidery alleged to contain said patented invention, and p:mying for a decree that they pay to him all profits realized from said infringement, and all damages sustained by him thereby, and for an injunction restraining them from making, using, or vending any show-cards containing said improvement; that the defendants in said suit were served with process therein, and appeared and answered said bill, setting up a defence; that said answer was replied· to, and said suit is pending undetermined; that said bill is for the same subject-matter and things, and the same alleged grievances, as are set forth in the bill against this defendant, and in fact, legal effect, and intendment; prays a remedy and relief against and damages and profits for and on account of, among other things, the alleged acts of this defendant, as set forth in the present bill against him, and that said alleged acts of this defendant, as an employe of Loeb & Schoenfeld, are, in contemplation of law, deemed and taken to be, and are included within, and constitute a part of, the alleged wrongs and grievances sued for in said bill filed in Pennsylvania, and that the rights, relief, profits, and damages, if any, to which the plaintiff is entitled by reason thereof, constitute a portion of the subject-matter and of the claim of said bill against Loeb & Schoenfeld, and are recoverable thereunder; and that, therefore, this defendant pleads said former bill and answer as a bar to the present bill. As to the first branch of the plea, or the first plea, whichever it may be, (no point being made or decided as to whether there are two pleas or only one, or, if two, as to the propriety of pleading two pleas without leave,) the plea must be overruled. The substance of it is that the defendant is not liabla in this suit for what the plea sets forth as having been done by him. This is not so. The plea shows that the defendant has made a separate and independent profit to himself out of the sale of such goods as he has been instrumental in selling, by receiving a commission thereon, in which commission Loeb
& Schoenfeld have no intercs'ti; that his commission is dependent on the sales; that he has made. tho sales for the purpose of receiving the commission; and that he obtains the commission by making the sales. This is a distinct profit from any profits made by Loeb & Schoenfeld. The commission to this defendant would not be included in any profits to be accounted for by Loeb & Schoenfeld, and such commission is a direct profit to this defendant from the dale of the goods. Moreover, this defendant, although selling only under the circumstances set forth, is liable to be restrained in this court, by an injunction, from selling the infringing goods, and this suit is properly brought against him for that purPOD". Thi3 court has obtained jurisdiction over his person. The plainLiff has a right to restrain the defendant, by injunction, from participating, in the way set forth, in such sales, although a bill will also lie against Loeb & Schoenfeld to restrain them from participating, in the way they do, in the same sales. lvlaltby v. Boto, 14 Blatchf. 58. As to the second branch 01 the plea, or the second plea, it follows, from the foregoing observations, that the pendency of the suit in Pennsylvania against Loeb & Schoenfeld is no bar to this suit. This defendant is not a defendant in that suit, and no injunction therein could be issued against him by name; and, although an injunction therein against the defendants therein might reach them for the acts of this defendant as an employe of theirs, yet, although he is an employe of theirs, in one sense, in what he does, he is indepondent of them in the profit he makes by his commission on sales, although he may receive his commission through them out of the sale price, and it is proper that the plaintiiJ ahonld have an independant injunction against him in this suit. Again, as beforo said, the bill in Pensylvania would not make the defendants therein account for the commission received by this defendant. This, therefore, is not the case of another suit pending between the samo parties in another jurisdiction for the same subject-matter. The plea is overruled, with costs, and the defenda:lt will be assigned· to answer the bill.
BRENNUi V. STEAM-TUG ANNA. P. DORBo
r/. D. PennsylMnia.
3, 1875, attached the steam-tug Anna P. Dorr, her tackle, etc., by serving a copy of this writ, personally, on John Carsfl, part owner of same, and by serving November 5,1875, a copy of this writ at residence of Capt. E. F. Christian on wife." Held, that the return did Dot import a seizure of the tug.
In Admiralty. Sur motion to set aside alias writ of attacllmente ACHESON, D. J. This case is now before the court upon a motion made on behalf of Pa.trick Brennan and L. B. Fortier. to set aside an alias writ of attachment for the arrest of the steam-tug Anna P. Dorr, which was allowed by this court upon the ex parte application of E. F. Christian and J<.>hn Carse, supported by an affiaavit, alleging that, pending proceedings in the cause. the vessel had been clandestinely taken "out of the custody and jurisdiction of this court" by said Brennan. The facts of the case, as they now appear to the court, are as follows: On October 27, 1875, Patrick Brennan, an owner of the one-fourth of said tug, filed a libel in rem for her sale. and the division of the proceeds between himself and his coowners, Christian & To'the process which then issued the marshal made a return in these words: "November 8, 1875, attached the steam-tug Anna P. Dorr, her tackle. apparel, furniture. etc., by serving a JOpy of this writ. personally, on John Carse, part owner of same, and by serving, November 5, 1875, a copy of this writ at residence of Capt. E. F. Christian on wife." Christian & Carse appeared to the suit, a.nd on November 15, i875, filed an answer denying "the diversity of