William Livingston and Ebenezer Calef, Appellants v. William Woodworth, Administrator of William Woodworth, Deceased James Wilson, Arteams Brooks, and Ignatius Tyler, Appellees

• Decision Date: 01 December 1853
• Citation: 14 L.Ed. 809,15 How. 546,56 U.S. 546
• Parties: WILLIAM LIVINGSTON AND EBENEZER N. CALEF, APPELLANTS, v. WILLIAM W. WOODWORTH, ADMINISTRATOR OF WILLIAM WOODWORTH, DECEASED, JAMES G. WILSON, ARTEAMS L. BROOKS, AND IGNATIUS TYLER, APPELLEES
• Court: U.S. Supreme Court

56 U.S. 546 15 How. 546 14 L.Ed. 809 WILLIAM LIVINGSTON AND EBENEZER N. CALEF, APPELLANTS, v. WILLIAM W. WOODWORTH, ADMINISTRATOR OF WILLIAM WOODWORTH, DECEASED, JAMES G. WILSON, ARTEAMS L. BROOKS, AND IGNATIUS TYLER, APPELLEES. December Term, 1853

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THIS was an appeal from the Circuit Court of the United States for the District of Massachusetts.

All the facts of the case are stated in the opinion of the court, to which the reader is referred.

It was argued by Mr. Schley, for the appellants, and by George. T. Curtis, for the appellees.

Mr. Schley made the following points:

1. The account ought not to have been taken from the date of the patent. The title of the complainant, Tyler, was not complete until 1st July, 1848, nor the title of Brooks until the 10th May, 1848. At the furthest, the account ought not to have been taken from a period prior to the latter day.

2. The account ought not to have been continued beyond the time of the filing of the bill. There are cases, undoubtedly, in which the account is continued to the date of the report; but this is not such a case.

3. It was clearly erroneous to allow interest, from the day of filing the bill, on the whole amount; as part of the amount accrued after that date.

4. Upon the case, as it stood in court, actual 'gains and profits,' and nothing more, ought to have been charged against the defendants. If damages, beyond actual gains and profits, were asked, the complainants should have sought another forum. Curtis on Patents, § 348; Hindmarsh on Patents, 361-365; Crossley v. The Derby Gas Light Company, 3 Mylne & Craig, 428, 433; Bacon v. Spotswood, 1 Beav. 387; Colborn v. Simms, 2 Hare, 560; 2 Eden on Injunctions, 251; Phillips on Patents, 457; Webster on Patents, 119, 168, 238; Lee v. Alston, 1 Ves. Jr. 82.

5. The allowance of one dollar per thousand was not warranted by the evidence in the cause; even if, in other respects, the decree was right. The allowance was excessive, upon the merits, as disclosed in evidence.

The points made by Mr. Curtis, for the appellees, were the following:

I. The first point that will be submitted, on behalf of the appellees, will be, That this being a bill for an injunction and an account, and a decree having been entered by consent of parties,

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(Record, p. 68,) that the complainants were entitled to the injunction and account prayed for in the bill, an appeal does not lie from the final decree, which merely ascertains the items of the account which the appellants consented should be taken.

That an appeal cannot be taken from a decree entered by consent, counsel will cite 2 Daniel's Ch. Pr. 1179, 1180; Bradish v. Gee, Amb. 229; Harrison v. Rumsey, 2 Ves. 488; Atkinson v. Marks, 1 Cow. 693; Corning v. Cooper, 7 Paige, 587.

There is a case in Ohio which is otherwise, founded on the peculiar provisions of the statute allowing appeals. Brewer v. The State of Connecticut and others, 9 Ohio R. 189.

But there is nothing in the provisions of the judiciary act of 1789, or in the act of March 3, 1803, § 2, allowing and regulating appeals in equity, to prevent the application by this court of the rule, that when a decree has been taken by consent, it cannot be disturbed by an appeal or a rehearing. The object of the act of 1803 is stated in the case of the San Pedro, 2 Wheaton, 141, 142. The only question in this case is, whether the consent decree, entered May term, 1849, (p. 18,) does not render the final decree (p. 51, 52) a decree by consent also. It will be contended that it does:

1. Because, by the first decree, the appellants consented that the appellees were entitled to the prepetual injunction, and 'the account prayed for in the bill;' and all that remained to be done was to ascertain what account was prayed for in the bill.

2. Because, by the first decree, it was expressly declared, that the parties consented to have the account commence at such a time as should be found by the master, and be confirmed by the court—a stipulation as binding on both parties as if they had made the same point the subject of arbitration.

But if the appeal was rightly taken, counsel for the appellees will contend,

II. That the second decretal order to the master, by which he was directed to ascertain 'the amount of profits which may have been, or, with due diligence and prudence, might have been, realized by the defendants for the work done by them' with the machine complained of, taken in connection with the principles laid down by the court in their opinion, (see appendix to this brief,) stated the true rule for this case.

1. It appears, by an account filed with the master at the first hearing, that the appellants had been using the machine complained of from July, 1845, to July, 1848, and had planed therewith 3,962,760 feet of boards during that time.

It also appears that they had received an average of $2 per thousand feet for this work; and in their answer they state, that this work was done at an average expense of $1.50 per thousand

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feet, leaving 50 cents, only, as the net profit actually realized on a thousand feet. But they do not profees to do this with entire accuracy, but as an 'approximate estimate.'

In this state of the facts, the master, assuming that he was to find only the actual net profits realized, heard evidence on the part of the complainants which tended to show that a thousand feet of boards could be planed for a less cost; and, also, evidence on the part of the respondents, tending to show that it would cost as much as they had stated in their answer; but he held, that the result of the whole evidence did not authorize the conclusion that the respondents had not truly stated the actual cost, and, accordingly, he reported $1.50 as the cost per thousand, leaving an actual profit of 50 cents only.

As it stood on the master's first report, therefore, there was evidence tending to show that, in charging $1.50 per thousand as the cost of planing, the respondents had conducted the business with less skill and prudence than it might have been conducted. The master's conclusion was based wholly on the idea that the actual net profits furnished the rule, and that the evidence did not control the statement of the answer as to the amount of such actual profits.——

An exception being taken and argued, it appeared to the court that here was a state of facts which required the application of a different rule, and the cause was recommitted to the master, by the second decretal order, and the accompanying instructions.

The rule announced was, that the master was to report the profits which the respondents might have made with due diligence and prudence; and the principle adopted by the court was, that the respondents were to the charged as involuntary trustees, accountable, like mortgagees in possession and other similar trustees, for the profits which might have been received with due care and prudence.

To apply this rule rendered it necessary to hear evidence on both sides, and to take the average given by all the testimony of what it would cost to plane 1,000 feet. The result of the whole evidence, given to the master at both hearings, may be thus stated.

(The counsel then went into some long calculations respecting the cost of planing.)

2. There is no technical difficulty in a court of equity in adopting and applying such a rule as that directed by the 2d decretar order to the master.

Where the court has jurisdiction to give the principal relief sought, it will make a complete decree, and give compensation for the past injury. As in bills for specific performance. Newham

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v. May, 13 Price, 749; Nelson v. Bridges, 2 Beavan, 239; Phillips v. Thompson, 1 Johns. Ch. R. 150; Parkhurst v. Van Cartlandt, Ibid. 273; Pratt v. Law & Campbell, 9 Cranch, 456; Cathcart v. Robinson, 5 Peters, 269; 2 Story's Eq. Jurisp. § 796. So also in injunction bills for waste. Jesus College v....