CuIU t7. GRONLUND. .
In Equity. On motion for injunction. William A. Macleod and Peck &: Rector, for comJllainnnts. Livernwre, Jilish &: Richardson, and Albert M. Moore, for defendants. COLT, J. . In view of the fact that the patent in controversy was only a year old when this suit was brought, the complainant failing to show, either a prior adjudication sustaining the validity of the patent, or public acquiescence upon which a presumption of validity may be based t and in view of the further fact that the defendant has signed a stipulationagreeing not to make' or sell any cash registers embodying the devices alleged to infringe the patent in suit until final hearing, I must decline' to grant any injunction. Motion denied.
(CirCUJf,t Cown, So D. New York.
. .In an action for the infringement of copyright, it appeared tbat defendantll bad, , ·in publisbing a SwedishcEnglish dictionary. takE'ln. certain words frpm a similar AAd. prior publication by plahltiff·. copying plaintiff's definitions, and, in the ·words of different terminations, from tbesam.e root, bad omitted the root, leaving it·to be understood. Held,: that plaintiff's copyright would protect his literary WQfklli composing the no matter how short they were, and the mere oJI\ission of the root 1Il words of ,different terminations, from the same root. would not avoid the infringement. . . ', 9. SAlolB-PROVINCE OJ!' JURY·. r In such case it is solel1 within the province of the jury to find whether the defendants had copied plaintiff's book. B. SAMB-lbASURE OJ!' DAlolAGBB. In an action for damage!! for the infringement of a copyright, plaintiff proved that the' sale of his book oad been decreased by the issuing of defendants' book to the extent of 1,600 copies. He also proved by one of the defendants tbat defendants had disposed of about 700 copies of their book lli this country, and aillo proved that in another case the same defendant had stated that they had of 8,000 , copies of their book in this country. Held, tbat this statement of defendant could not be made available against the other defendant, a corporation, even though he was an officer ot such corporation, and plaintlif was entitled to damages only tor the diminution of his sale& .
CoPTRIGll'l'-WHAT WILL DE.
At Law. Action. by Otto Chilsagllinst Gustave Gronlund et ale for infringement 'of qopyrightand damages. Walter ,M. R08ebault, for plaintiff. H.'M.. Ge8Cheidt, fordefe.ndants.
Wm:E;1IER, J. This cause has now been heard -on a motion by the defendants to set aside a verdict for the plaintiff fQr 82,500 damages and for infringement of his copyright of a Swedish-English for the forfeiture to him of copies of the defendants' infringing work in th.eir pqssess,ion. The principal grounds urged in support qf the motion arethaLthe verdict is contl'ary to the. evidence, and that the damages \T.41F.no.3-10
are evidenc?' tended' to, shOw that ,:bbok contams about';30,000 SwedIsh words m most commoIiuse, WIth sLort English definitions, which. he composedj, that the defendants' book eontains about 10,000 of the same Swedish words, and a very few others, with similar English definitions, made by taking the plaintiff's book and striking out Swedish words: with their definitions, slightly changing the defiuitibns' of 'those remaining, adding a few other Swedish words withtheirdefini,tibDs, and printing the result, omitting the root in succeeding words, with different terminations, from the same root. The defendantS' evidence tended. to show that the plaintiff's :dictionary was used for information merely,' iriconnection with several other Swedishbook, English dictionaries, and -not«lopied,'in making the The jury was instructed that the defendants had a right to make and publish a dictionary, and to use the plaintiff's dictionary as a source of information, but had not any ri:gnt"'tO'copy the plaintiff's arrangement and definitions, which he had composed. The jury must have found that the plaintiff's compositionof,Enp;lish accompanying the Swedish words was copied. Each Swedish word was a topic for the composition of a'fi i '\mfiglisb:d41flnition; and .('he. plaintifns copyright would protect his literar;y work,i1?-. tlpon itQpIC, upon :the length,butupon the· fact, of,the ,prDduction.,' 2,: Kent,Comm . . Chl74glyj:iI, Yo; ISlIP; Ct. Th.e $is'sion of the' roots of words,following. those in which they_were printed, in. connection with the terminations, as fully:as -if ,there, ;in ,making out the ample" g d.efenG<ants, to warrant and support the findmg thattheplfJ,lntlft'scopyngtlted literary work had been, ,by, the, defc.nda:nts to their use. :The, giviilg oCcredH to: the of , ,,', ' " : , , , , ';"", , " , .. the jury. ). he JMS ,book inthe rand sold' 350:eopiesper'100nth til1'thedefendants'book came out, in 1.889, ,!lpd. ;150 ;J.b. :I\U;, aboilt,9qO at retail, at a profit of 87 cents each; and 1,600 or 1,.700, at wholesale, at a profit of 55 cents each. On this evidence he might have lost the sale of 200 mOl}th for 8 the HD;1e 'Yhen ' Jatifs'bbok: oafue -out ta !tlieltiineof:the Decenlber: 4;1,1 889:, in all been$l 1,600 copies, on which his profits the de,fendant Gronlund as a witness,'Who,te!ltifierl that the defendants 200 or procured 25,000 copies of their book! 'to' w!p'l'i'Jitedi or'which' that, of 18,300 were delivereg, and the rest spoile,d in !I#eyetl,l\1.6.;000 :Wei'a 00 hlind, in the· ofthe defen la:nts 1 ;500 out of this country, to fS,teddn I' and the rema-intlei were sold 'at give':l away.'" The iplitintiffalso 10' 11-'0 were on ltestifioo'that hedeHvered to the defendltIit,s 18,875 'copies. The., statel1tient'6f GroMund would 'be: evidenoe ag!\inst hitn that'thedefenaaots
t "._.- :". '.'
-; -" "
cOpies' on"b'ltnd;and thattbe,balanee oftbose received ftqmtheprinter had been disposed of. 'l'binvouldtend to show that '4;875 'copies in all had been disposed of, and'S,375of them in this country, which l'night displace sales of thl'lplaintijj"s book to that extent, on which his profits might have been $2,116.25. But this state'ment of. Gronlund would no't be evidencefl.gainst the other defendant, a cOl'poratilm, that the fact was as stated, although he was an officer of the corporation, and might act for it in some respects. It might' tend to impeach his credibility as to what he had testified to in fhi!'! case, but that would not furnish evidence of facts of which there was no other proof. Without this statement, there 'was nO evidence that more than 2,875 copies had been disposed of·out of the possession of the deor thatxnore than 1.375 had h(Jen disposed ofin this country, aside',from the evidence of diminution of the plaintiff's sales on the appearance of the defendants' book. Thedefendants cannot be holdeI'!. together. for more than is proved against both;. and there is no competent evidence against both ofany greater damage than thatof 81,064.32 from the diminution of sales. This 3:\'I1y 17, 1889jand the plaintiff is not entitled to recover for anything done by since that time. They stopped, or claim that theY'did, at that time;. but the Qooks which they had disposed of previously may have affected the sales afterwarcJg. and down to, ·tbe time of the verdict. ,While the verdict is ,clearly right in being for the plaintiff. it ia as clearly excessive for all the damages found by it above 81.064.32. Tha.t is the uttermost tf) which the defenrlantscan, on the proofs submitted, be justly together held. As the jury have found morA than this, withQut being led by any error made .apparent, they have found this; lind the plaintiff' may cnre t.ha verdict of the excess by remitting·it,if he chooses to do so. 10he plaintiff, w:thin .10 days, .ples a remittitur of all damages beyopd, $1,064.32, let the motion be thereupon overruled, a.nd the stay be vacated. Ifhe omits so do, 'let thev6l'dict and judgment thereon beset. aside.
THE CAPTAIN JOHN. 1
UNl'.l'ED STATES 11.
E,. D.New York. JanulU',Y 80.1890.)
.A J;Darshal mayreceive more;than, $2.50 .per aay fOIr custody fees on proof to the court ohhe existence of extraorqinary requiring extraol'dinarr ex. periditure morder·to maintain his custody. '
A s.ml¥lBteamer was libeled by the government and attached by the marshal, Who plaoed extra·keepers on her, and, on taiBtion dfhis bill. sougbt te' 12.50 for