Chadeloid Chemical Co. v. Johnson
| Decision Date | 07 January 1913 |
| Docket Number | 1,897. |
| Citation | 203 F. 993 |
| Parties | CHADELOID CHEMICAL CO. v. JOHNSON et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appellant filed its bill to enjoin appellees from infringing patent No 714888, issued December 2, 1902, to Ellis, for a paint and varnish remover. The bill alleges that appellees are licensees of appellant, and that infringement of the patent was committed by appellees selling at less than the prices fixed in the license, omitting to put the patent and license marks and notices on the cans containing the remover, failing to pay royalties, refusing to make quarterly reports of amounts of sales and prices, and excluding appellant's accountant.
Attached to the bill is a copy of the license agreement. It begins with the statement that 'the licensor, in consideration of the covenants hereinafter contained and upon condition that the licensee keep this agreement, hereby grants to said licensee a license to manufacture, use, and sell under (said Ellis patent) for the term of said patent unless sooner terminated as hereinafter provided. ' Then follow the covenants, of the violation of which appellant complains as above stated, and a provision respecting liquidated damages. In conclusion, the license agreement provides that 'in case the licensee fail, for a period of 30 days after the same are due, to deliver any statement or to pay royalty as above provided for together with interest at 6 per cent. per annum from the date when it was due, or in case the licensee willfully and persistently violate the agreement as to the minimum prices at which remover made hereunder is to be sold or in case the licensee violate or fail to observe any of the other terms, conditions, or covenants of this agreement, the licensor may at its election, without precluding any other right or remedy to which it may be entitled hereunder, and in particular without precluding its right to liquidated damages as herein provided, terminate all further rights of the licensee hereunder by sending written notice to that effect to the last known address of the licensee; but such termination of the right of the licensee hereunder shall not in any way release the licensee from any of its covenants or obligations hereunder.'
In their amended answer appellees denied that they had ever sold any of the patented paint and varnish remover for less than the prices prescribed in the license agreement, averred that they had always attached the notices called for by the license agreement, except for a short time in 1909, at the end of which they again attached the notices, and since then have never threatened and do not intend to send out any remover without the notices attached to the containers, as appellant 'well knew at the time of the bringing of this suit' in February, 1910, but were silent respecting their alleged failure to pay royalties, their refusal to make quarterly reports, and their exclusion of appellant's accountant.
Appellant brought on the cause for hearing upon the bill and answer. Thereupon the trial court entered a decree dismissing the bill for want of equity. And this appeal resulted.
Frederick S. Duncan, of New York City, for appellant.
Irving A. Fish, of Milwaukee, Wis., and Victor Elting, of Chicago Ill., for appellees.
Before BAKER and SEAMAN, Circuit Judges, and ANDERSON, District Judge.
BAKER Circuit Judge (after stating the facts as above).
Since, on a hearing on bill and answer, only those averments of the bill are to be deemed proven that are not destroyed by taking the answer as true, appellees never trespassed upon appellant's reservation of price control.
For appellee's invasion of appellant's manufacturing control in 1909, by omitting to put notices of the patent and of the price restriction upon the containers, an action at law for damages would lie; but, injunctive relief being aimed at the prevention of continuing or threatened trespasses, and appellees having ceased to trespass and having no intention and making no threats to resume, as appellant knew before suing, a bill in equity would not be justified. Kenicott Co. v. Bain, 185 F. 520, 107 C.C.A. 626.
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Ohio Citizens Trust Co. v. Air-Way Electric App. Corp.
...from the single fact that the licensee has broken covenants which were made by him when accepting the license (Chadeloid Chemical Co. v. Johnson 7 Cir., 1913, 203 F. 993, unless the parties expressly agreed that such forfeiture should follow such a breach. White v. Lee C.C. 1880, 3 F. 222; ......
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Lyndon v. Wagner Electric Manufacturing Company
...148 Mo. 528; White v. Lee, 3 F. 222; Dare v. Boylston, 6 F. 493; McKey v. Lupton, 95 F. 291; Holmes v. McGill, 108 F. 238; Chemical Co. v. Johnson, 203 F. 993; v. Aldrich, 255 F. 785. (4) The contract of March 2, 1912, is clear and unambiguous and it therefore follows that extrinsic evidenc......
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Morris v. Texas Working Barrel Mfg. Co.
...could be only at law. Germain v. Wilgus, 67 F. 597, 14 C. C. A. 561; Woodmanse v. Williams, 68 F. 489, 15 C. C. A. 520; Chadeloid v. Johnson, 203 F. 993, 122 C. C. A. 293; Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975. It follows that the suit was properly brought at law, and plaintiff ......
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American Pastry Products Corp. v. United Products Corp., 3190.
...several of the decisions there have been dissents. An agreement very similar to that before me was considered in Chadeloid Chemical Company v. Johnson, 203 F. 993 (C. C. A. 7th). In that case the plaintiff (the licensor) filed a bill for infringement by reason of the licensee's alleged viol......