Bowling v. Taylor

• Decision Date: 21 November 1889
• Citation: 40 F. 404
• Court: U.S. District Court — District of Connecticut
• Parties: BOWLING et al. v. TAYLOR.

40 F. 404

BOWLING et al. v. TAYLOR.

United States Circuit Court, D. Connecticut.

November 21, 1889

Greenbaum & Hayes, for complainants.

Sherman H. Hubbard and Henry Stoddard, for defendant.

SHIPMAN J.

This is a motion for a preliminary injunction in a bill in equity, by citizens of the state of Michigan, against a citizen of the state of Connecticut, which is brought for a permanent injunction against the further violation by the defendant of his agreement not to make ladies' stays in the manner alleged to have been secured to the complainants by their patent.

On October 5, 1888, the complainants were manufacturing, under three patents to E. C. Bowling and one to Elsie M. Smith ladies' dress stays, which consisted of a stiffening blade, having a sheet of rubber on each side thereof, and an outer covering of cloth over each sheet. The defendant was also then manufacturing a ladies' stay, called the 'Bridgeport Stay,' consisting of a stiffening blade with a single layer of gutta-percha on one side, and an outer layer of fabric on each side. He was also manufacturing under a patent to Roscoe B. Wheeler, a stay called the 'Self-Attaching Stay,' consisting of a blade, a gutta-percha strip on one side, and a layer of cloth on the other side. Each of these forms was claimed by the plaintiffs to be an infringement of the principal Bowling patent, a reissue of which had been applied for. They had also commenced in the patent-office an interference proceeding in regard to the Wheeler patent, and had threatened the defendant with a suit. On October 5, 1888, the parties entered into a written agreement, which was amended on the same day by a subsequent agreement, which agreements were, in substance, as follows: The complainants licensed the defendant, under their patents, to make and sell stays 'designed to operate upon the self-attaching principle,' i.e., 'the Self-Attaching Stay' described in the Wheeler patent, provided he should make no Bridgeport stays, except he could sell 3,000 gross then in process of construction, and fill all orders theretofore received. The complainants agreed not to make the self-attaching stays of the Wheeler patent, and to make no effort to annul or disturb it; and the defendant agreed that he would make no stays consisting of a steel, a layer of gutta-percha, and two outer layers of textile fabric. Minimum prices were fixed for the self-attaching and the double layer stays, which the complainants were then making. The complainants sold to the defendant their interest in the English and French patents of Wheeler. By the supplemental agreement the parties agreed to confine their manufacture respectively to the stays known as the 'Self-Attaching' and the 'Ypsilanti No. 1.' If, however, the complainants should deem it advisable to put upon the market a cheap stay of the double layer kind, they should, upon demand, furnish the defendant, at a price of 50 cents per gross, a quantity of said stays equal to that put out and sold by the complainants. In the event of the putting out of this cheap stay, the net price to the trade should be the same by both parties; the complainants to fix the price. The cheap stay, called 'Ypsilanti No. 2,' was immediately put upon the market; the price was fixed; the defendant commenced to order; and his orders were filled. The anticipated reissue was delayed, and, for a time, denied; and infringers sprang up, who put cheap goods upon the market. The firm which sold all of the complainants' stays in the city of New Ork, other than those sold by Taylor, was very anxious that the complainants should make a cheaper stay than the 'No. 2,' which would cost 36 1/2 cents per gross, and which they would sell from 25 to 35 cents,-- at a loss to themselves,-- and thus undersell the cheap goods of their rivals, and destroy competition; and in January, 1889, the complainants promised that they would send the New York firm 6,000 gross of these cheap goods. They informed the defendant of this plan on January 4 or 5, 1889, and asked him if he would take some of these goods at 36 1/2 cents, and sell at a loss. He declined and said that such a course would injure the sales of 'No. 2;' and that it was a breach of the contract; and that he would resume the manufacture of the Bridgeport stay. On January 9, 1889, complainants telegraphed defendant as follows: 'After consultation, we are agreed that the fewer cheap stays made, the better. Shall ship Model Co. only enough for present orders. ' Upon receipt of this telegram, defendant telegraphed complainants, asking at what price they could furnish 10,000 gross of these cheap stays, and on January 10th wrote complainants, protesting against the sale of this cheap edition of No. 2 stay, and stating that his attorney regarded it as an abandonment of the...