LACROIX V. LYONS.
487
ognize and enfo;ce his rights in accordance with the remedy afforded by the laws of this state. On the second ground set forth in the motion for a new trial the court was of opinion that the facts found by the jury could not be re-examined otherwise than according to the rules of the common law as they prevail in this state. A court can properly decide questions as to what evidence is admissible, and whether any evidence has been offered tending to prove particular facts in issue; but it is the peculiar province of a jury to determine the weight and sufficiency of evidence; and in civil cases, where the testimony is conflioting, find their verdict in accordance with the preponderance. Unless a verdict was influenced by partiality, prejudice1 or some other improper cause, or is manifestly wrong, a court ought not to set aside the deliberate finding of a jury on matters of fact, by granting a new trial. In this case the testimony was conflicting, aU the witnesses were proved to be men of good characters, and the intelligent jury, after hearing the able argument of counsel, found the preponderance of testimony in .favor of the plaintiff; and the court could see no good reason why their verdict should not be conclusive as to thefacts inVOlved. Upon the question as to the amount of damages assessed by a jury a court has a more enlarged discretion, and a sense of duty often influences a court to set aside a verdict for damages clearly excessive. In this case there was no conflicting testimony as to the extent of the injury, and the court was of opinion that the amount assessed by the jury was more than a reasonable compensation for the injury sustained, and there were no grounds for exemplary damages. The court informed the counsel of the plaintiff that unless they would consent that the amount of damages assessed by the jury be reduced to the sum of $750, the verdict would be set aside, and a new trial granted. The terms were accepted by counsel, and judgment was signed for the indicated by the .court.
I I
·1
LACROIX
v.
LYONS}
(Oi'l'c'Uit OOU'l't, E. D. Louiliana.
January 11, 1888.)
.JUDGMENT-RES ADJUDICATA-INFRINGEMENT SUIT-ACTION AGAINST DEFENDANT'S VENDEE.
Plaintiff sued to enjoin defendant from using the former's trade-mark. Defendant pleaded that in a previous suit upon the same grounds, to enjoin defendant's vendee from selling the article complained of, judgment had been rendered against plaintiff. Held that, for the judgment to be a bar to the maintenance of the present suit against defendant herein, it should also appear that he openly defended in his own interest the suit in which the judg. ment was rendered.
In Equity. .1
Bill for injunction·
k p Jrted by Charles B. Stafford, Esq., of the New Orleans bar.
438
FEDERAL REPORTER.
Suit for infringementqf trade-mark by Leonide .Lacroix seph Lyons. Farrar &: Krutt8chmitt, for plaintiff. Ernest T. Florance, for defendant. PARDEE, J. This cause has been submitted on the sufficiency of the plea filed by respondent. The original bill was filed in the civil district court for the parish of Orleans, as a petition under the state practice, and an injunction thereupon obtained, on the thirteenth day of September, 1884. This bill in substance that petitioner had for many years manufactured .cigarette papers, and had adopted as a trade-mark for the Same a certain design described in the petition, and alleged in substance that said paper had been sold and offered for sale in the city of New Or'leans and elsewhere, and furnished to jobbers by a firm known as May Bros., in the city of NewYork, either personally or through one Joseph Lyons. an agent. The usual allegations in suits for infringement of trademarks follow, and the prayer of the petition was f'{lr an injunction against Lyons. restraining him from selling papers, pirating upon petitiOller's trade-mark, and praying for an account of all profits made by Lyons from the sale of these cigarette papers. After the removal of the cause to this court, and the ;reformation of the bill or petition, and after motions to remand and a. demurrer have been oyerruled, defendant has filed a plea setting fdrtb that in a certain cause between complainant and one Manuel Escobal, numbered 12,149 of the docket of the civil district court for parish of Orleans, all the matters and things and issues presented in the conlplainant's bill herein were preslmted. and on the day' of 1885, were determined byap.nal decree of the supreme court against· complainant, as will appear from a certified copy. of the record in said cause, and of the decree therein. annexed to and made part of the plea; that the object and caus of action in the suit of Lacroix v. EscGbal was the same as the ob-. ' ject llnd cause of action in the bill of complaint herein. Defendant further shows that Manuel Escobal and defendant were privies in said cause of LacrO'b: v. Eacobal, in this: that said Escobal did the acts alleged in the of defendant in the cause herein; petition in said cause as tQe that said Escohal's right to do the acts complained of in said petition, which said acts were and are identical with the acts complained of as being and been done by the defendant in the bill herein, was derived from arid lirrlited by the rightof defendant herein to ·do said acts, and if said right be complete in defendant's vendee to do and perform said acts, then said right is complete in defendant to doahd perform said acts, and defendant pleads the recor114rid judgment as an estoppel of record against sucp portion of the bill of complaint as alleges .an exclusive right in the complainant to use the alleged trade-mark claimed in said bill, and as res judic(J,ta as a bar to recovery in said bill. There isno averment in the said plea that Lyons was a party to the said cause, nor that he defended the same openly or otherwise, nor that his said relations with the defendant in that cause werc known to the
LACROIX V. LYOl'S.
439
Herman, in his work on Estoppel and Res Judicata, p. 157, says: "A person not 8. party, but who takes upon himself the defense of a suit, bound by the judgment, as where a vendor sells and warrauts title to chat· tels, and assumes his vendee's defense. If one not a party of record, nor in privity with a party of record to a judgment, desires to avail himself of the judg.ment as an estoppel, on the ground that he in fact defended the action refmlting in the jUdgment, he must not only have defended that action, but must -have so openly, to the knowledge of the opposite party, and for the defense of his own interests. he employed an attorney who appeared for the defendant of record, and appeared as a witness for the defendant, is not Bufficient.·" ,' And to the &lame effect is Bigelow,,(4th Ed.,) 99, where the author says: . "And' parties, it is said. must be openly such; therecail be no secret parties in benefit, unknown to the adverse side."
IIi Schroeder v. Lahr'llULn the supreme court of Minnesota held that"The general rule is that a judgment operates only as between parties and their privies. There is. a class of cases which hold that one not a party of ree·oro, liutwboisvirtuaUy the party in interest in the matter of contro.versy, and who, as between him and defendant, has the right or is under to defend the action, and who does. in fact, conduct the defense, is to'be regarded as a party for the purpose of to judgment 3S an estoppel. These have generally been. cases where the person conducting' the '-defense. witlwub being a nominal party, was a master whose servallt waBBued for an act done by his authority, and in which he was bound, to indemnify mm.or, a creditor to indemnify asl;leX;iff, for an act done by his direction. It may be doubled whether, wlthin ()ur statute, under which one virtually the party in inlj:lrest may be admitted 1\S 'a party ofrecol'd, these decisions are applicable. But If tbeyare applicable here, the person' riot a party to the record, nor a privy against or in favor of whom it is sought to , use .ajuq.gment as anesf;oppel, must.not only, in the.controversy, but must do so and to the knowledge of the opposite party, and for the defense of his own interests. It would be anomalous in judicial proceedings that the rights bf a party should be concluded as betweeti himand . one whom'he does not know to be an adversa'ry, and as to whom he,does not 8ubmit,his rights for adjudication. The part taken by this in the former,I;lllit was not sueh that she could be bound by benefit of the payment." 26 Minn. 87, 1 N. W.Rep. 801. ';. . From these authorities it seems clear that for the judgment pleaded to be a bar to the'maintenance of the present suit, it is nQt sufficient "that said Escobaldidthe acts alleged in the petition in said cause as vendee of defendlll:itherein;that said Escobal's right to do the acts complained of in said petition, which sllid acts were and are identical with the acts complliined of as being and baving been done by defendant herein, was derived from and limited by the right of defendant herein to do said acts." Tobea barin favor of or against Lyons, thedefendant herein, II it should also appeal' that he openly defended in his own interest the suitin which the judgnt-ent was rendered." As the'}>lea does not state all the· facts necessary to render it a complete defense, and as all mtendtllents are against the pleader, it is insufficient and will be'sn adjudged. See Story, Eq. PI. § 665 j 1 Daniell"Ch.611.
i
440 .
ST. LoUIS,
V. &
T. H.
R.
CO.
TERRE HAUTE
& I. R. Co.
Court, 8. D. Blinoia. January 11,1888.) 1. RAILROAD COMPANIES WAIVER. LEASE OF ROAD CONSENT OF STOCKHOLDERS-
A railway company leased its road, and 19 years afterwards brougoht suit to set aside the lease because it was made without the stockholders' written con· sent, llS required by law. Held, that the requirement of consent was a per· sonal benefit which the stockholders waived by long acquiescence. . .
ll. CONTRACTS-VALIDITy-RATIFICATION..
The plaintiff and defendant entered irito a contract of doubtful validity. By subsequent enactment it became lawful to make such contracts. Held, that. recognition by the parties for 19 years thereafter was a ratification of the contract.
S. EQUITy-LACHES-ANNULMENT OF LEASE.
The plaintiff leased its road, and 19 years afterwards brought suit to declare the lease void. Held, that the plaintiff was guilty of such 1aches as will bar relief inequity.
4.
SAME-P:r,EADING-MULTIFARIOUSNESB.
A bill in equity praying that a lease be declared void, and for an accounting of themo.ney due by the terms of the lease, should it be. declared valid, is multifarious. .
In Equity. On demurrer to bill. TrumbuU, Robbin8 &: TrumbuU, John M. Butler, and J.T. Brooks, for
George Hoad,ly; William M. Ramsey, Greene·&: Humphrey, and John G. Williams, for defendant. Before GRESHAM, C. J., and ALLEN, D. J. GRESHAM, J. The complainant, the.St. Louis, Vandalia & Terre Haute Company wa$ chartered by an act of the general assembly of the state of Illinois, approved February 10, 1865, to construct and operate a railroad from the bank of the Mississippi river, opposite East St.Louis, to the eastern boundary of the state of Illinois. at a point most convenient for extending the sarile to the city of· Terre Haute, in .the state of Indiana; and this charter was amended by an act approved February 8, 1867. The defendant was chartered by an act of the general assembly of the state of Indiana, passed January 26, 1847, under the name of the Terre Haute & Richmond Railroad Company, with power. to eonstruct and operate a railroad from a point on the western line. of the state of Indiana, easterly through Terre Haute to Richmond, in the same state; and by an act passed March 6, 1865, the name of the defendant was changed to the name itnow·bears. The bill.avers that the complainant was not authorized by its charter to part with the possession of its property and franchises indefinitely, or for a fixed period of time, by a lease or other contract; and i.hat the defendant was not authorized by its charter to acquire, by like means, the possession, management, or control of any railroad located beyond the limits of the state of Indiana, for an indefinite or fixed period; that in