In re L.P. Larson, Jr., Co.

• Citation: 275 F. 535
• Decision Date: 31 March 1921
• Docket Number: 2822,2831.
• Parties: In re L. P. LARSON, JR., CO. v. WILLIAM WRIGLEY, JR., CO. L. P. LARSON, JR., CO.
• Court: U.S. Court of Appeals — Seventh Circuit

275 F. 535

In re L. P. LARSON, JR., CO.

L. P. LARSON, JR., CO. v. WILLIAM WRIGLEY, JR., CO.

Nos. 2822, 2831.

United States Court of Appeals, Seventh Circuit.

March 31, 1921

Rehearing Denied July 20, 1921.

Charles H. Aldrich and Frank F. Reed, both of Chicago, Ill., for petitioner.

Isaac Mayer and Wallace R. Lane, both of Chicago, Ill., for respondent.

Before BAKER, EVANS, and PAGE, Circuit Judges.

BAKER Circuit Judge.

In Larson Co. v. Wrigley Co., 253 F. 914, 166 C.C.A 14, on appeal from a final decree dismissing Larson Company's cross-bill, we reversed the decree 'with the direction to enter an injunction and order an accounting ' That decision is referred to for the status of the controversy anteceding the present inquiry.

True we did not specifically direct what sort of an injunction to enter. Looking to the pleadings, the proofs, and the decision of this court, the District Court entered a final injunction, perpetual in time and universal in place. No appeal was taken to question the correctness of the District Court's interpretation of our mandate in that respect.

True, we did not specifically direct what sort of an accounting to order. Looking to the pleadings, the proofs, the decision of this court, and Larson Company's prayer for profits and its waiver of its prayer for damages, the District Court ordered the master--

'to take an account of all gains and profits of Wrigley Company to it accruing or arising from the manufacture and sale of its Doublemint gum in the dress hereinbefore enjoined, from its first sale on July 28, 1914, to the date of the entry of this decree and such further time, not exceeding ninety days, as may be necessary to comply with this decree, and until compliance therewith.' No petition or motion has ever been presented to this court to question the correctness of the District Court's interpretation of our mandate in that respect.

While Larson Company before the master was endeavoring to make Wrigley Company account for 'all gains and profits accruing from the manufacture and sale of its Doublemint gum,' Wrigley Company, relying on the territorial limitation doctrine of the 'Tea Rose' case (Hanover Star Milling Co. v. Allen & Wheeler Co., 208 F. 513, 125 C.C.A. 515, L.R.A. 1916D, 136; 240 U.S. 403, 36 Sup.Ct. 357, 60 L.Ed. 713), interposed as a defense against accounting for any of its sales outside of 'common territory' the claim that Larson Company was a small manufacturer, had been making and selling its Wintermint gum for only seven months before Wrigley Company embarked upon its Doublemint adventure, had only a very limited trade, and had neither the ability nor the present intention to extend its trade, and Wrigley Company insisted upon examinations of the officers and books of Larson Company in order to prove those matters. A controversy developed between opposing counsel, from which it became apparent that such an investigation might be indefinitely prolonged, and Larson Company, on advice of its counsel, finally refused to submit to further investigation. Thereupon the master ruled that Wrigley Company's investigation of Larson Company's trade, finances. etc., should proceed, and the present actions in this court were brought to question the District Court's refusal to control the master in this regard.

If Larson Company were asking for a measurement of the damages caused by Wrigley Company's undermining of its trade, an inquiry into the extent and value of that trade would be necessary. But Larson Company was actor, was in control of its own side of the litigation, and neither Wrigley Company nor the master nor the District Court, in view of the decree as entered, could properly compel it to litigate the 'undermining of its trade'-- a matter that it has waived in this court by its briefs and in the District Court by its tender of form of decree. Inasmuch as the decree specifically directs the master to take an account of all of ...