American Bell Telephone Co. v. Albright

• Decision Date: 30 September 1887
• Citation: 32 F. 287
• Parties: AMERICAN BELL TELEPHONE CO. v. ALBRIGHT.
• Court: U.S. District Court — District of New Jersey

32 F. 287

AMERICAN BELL TELEPHONE CO. v. ALBRIGHT.

United States Circuit Court, D. New Jersey.

September 30, 1887

Henry G. Atwater, for complainant.

J. C Clayton, for defendant.

BRADLEY Justice.

This is a bill in equity, alleging infringement of Bell's patents for telephone instruments, and praying for an injunction damages, and profits. A decree for injunction and account was entered March 23, 1883. The master reported that the defendant put in use 48 instruments in the city of Newark and that the established license fee of the complainant was $10 a piece, and on this basis reported damages at $480. The defendant has filed exceptions, and claims: (1) That he is liable for only four of these instruments; (2) that he has been released from the damages for the use of these, by complainant's obtaining recovery and satisfaction from one John J. Ghegan, who put up the instruments. The facts in proof will explain the pertinency of these exceptions. All the 48 instruments put up were made by the People's Telephone & Telegraph Company of New York, and were furnished to John J. Ghegan, and put up by him for different parties under a contract of lease and license, made April 25, 1882 by said company, to and with said Ghegan and the defendant, Albright, whereby it was recited that the People's Telephone Company (of the first part) owned letters patent, granted to George M. Hopkins August 17, 1880, and sundry other inventions in telephony, and desired to extend their use; and that Ghegan & Albright (of the second part) desired to obtain the use of the same; and it was, among other things, agreed that until the expiration of the patent the People's Company should deliver telephone instruments to Ghegan & Albright, as needed, to be used in the territory of New Jersey, and would not license to others within said territory; and that the lessees should pay a rental of six dollars per annum for each instrument delivered, until returned or destroyed, and 25 per cent. of all profits realized; and that the lessors should protect the lessees against all suits for infringement of other patents.

It appears that four of the instruments were put up for the use of Albright, on his premises, and the other 44 for the use of other persons. The defendant and Ghegan testify that Albright entered into the arrangement with the People's Telephone Company merely for the accommodation of Ghegan, (whose business was to put up telephones,) as the company would not give the lease to Ghegan alone; and that Albright took no part in the business. The People's Telephone Company, however, looked to both parties, and charged both with the instruments delivered to Ghegan. It also appears that the complainant filed a bill against Ghegan for infringement, shortly before the bill in the present case was filed against Albright, and that Albright applied to the People's Company to take care of the suit against Ghegan, and procured from them a fee for counsel. When the present suit was commenced, Albright again applied to the People's Company to defend this suit in conformity with the contract. And as late as March, 1884, he filed a petition for a rehearing in the present case, verified by his affidavit, in which, among other things, he stated as follows:

'Your petitioner further shows that before and ever since the

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