Cushman & Denison Mfg. Co. v. Grammes

• Decision Date: 16 August 1915
• Docket Number: 1081.
• Citation: 225 F. 883
• Parties: CUSHMAN & DENISON MFG. CO. v. GRAMMES et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

225 F. 883

CUSHMAN & DENISON MFG. CO. v. GRAMMES et al.

No. 1081.

United States District Court, E.D. Pennsylvania.

August 16, 1915

Oswald M. Milligan, of Philadelphia, Pa., and Gantz & Tucker, of New York City, for plaintiff.

Fenton & Blount, of Philadelphia, Pa., for defendants.

DICKINSON District Judge.

This case presents unusual features. Some of them relate to questions which have been already passed upon and should be regarded as eliminated, except so far as they may be still included among those which may be raised on exceptions to the master's report when it comes to be filed. Others of them may be regarded as still in the case to be determined. A short outline statement of certain record facts may serve to separate the ins from the outs, and enable one to state the governing principles applicable to each.

The plaintiff filed its bill of complaint August 12, 1913 averring both a common-law and a statutory proprietary right in a trade-mark known as the 'Gem,' and charging both unfair trade and an infringement of its proprietary exclusive privilege, and praying for an injunction and the awarding of damages and profits. On October 6, 1913, a preliminary injunction issued. The cause then proceeded to trial, and defendants, through their counsel, admitted both the trespass and the infringement. Thereupon the cause further proceeded to the entry of a decree adjudicating these facts, and thus far the rights of the parties by making permanent the injunction and referring the cause to have found whether an account of profits should be taken. This was on January 22 1914. An accounting was found to be called for. A reference then followed to have determined 'what sum' the plaintiff should recover. Subsequently there came to the defendants information of facts which were in lethal conflict with the claims of right set up by the bill of complaint. This information was that the claim of a common-law trade-mark had been adjudicated against the plaintiff, and registration of the trade-mark, upon which its statutory right depended, had been denied it. These new aspects of the case were presented to the court in the form of an application to have the decree of January 22, 1914, vacated. This relief was denied by the court. The grievance was re-presented in the form of a motion to open the decree which had first been made. This motion was likewise dismissed. The appeal for relief was then renewed under the guise of a petition to have the existing decree modified. No definite action was taken upon this by the court beyond sending it to the master by the order of July 3, 1914.

Recurring now to the proceedings before the master, we have this record: The defendants presented evidence of the facts upon which the prayer of their petition was based. They also presented what they characterize as an account of their dealings in the device to which the dispute between the parties relates. This was not acceptable to the plaintiff as the account to which it claims to be entitled. The master upheld the views of the plaintiff, and by his order indicated that the defendants, in addition to the purely accounting features of the statement, should incorporate in it a list of the names (with addresses) of the customers to whom the clips had been sold, as well as details of production cost, and the facts relating to the credits claimed in the account. The defendants have not complied with this order, and the question of being in contempt has arisen.

It will be observed that the undisposed-of petition leaves in the case, undisturbed by any prayer for relief, the finding of unfair competition. The part of the finding which the court is asked to modify is the part of the decree which is based upon the proprietary right. This prelude brings us to a formulation of the principles by which the action of the court should be guided and controlled. This further first calls for an analysis of the situation to which these principles are applicable. Every one has the right to pursue his business or calling free from unlawful interference by others. To him also belongs the right to the possession and use of his property. Each is a right, but the latter only can be properly said to be a right of property. If the former is interfered with by the unfair competition, which is here charged, the wrong is a tort, redress for which is afforded through legal forms by an action for damages and through chancery forms by the added remedy of a restraining order. The basis of the complaint is the tortious conduct of the defendant, and of the remedy compensation for the damage done, as well as protection against further damage. If the owner is deprived of his property, he may establish his right and have the property restored to him, together with the profits, which are also his, received therefrom, for which the defendant must account. To the owner, it is true, belongs the further right to an undisturbed possession and use of that which is his, so that a deprivation of the right of property may involve a tortious act, and there is also at times included in the term 'damages' the punitive or vindicatory, as well as the compensatory, thought. None the less there is the indicated essential difference in the two things.

Viewing the present case in the light of this distinction, it is clear that the court cannot proceed to a final award without first finding whether defendant has been guilty simply of the tortious act, or the appropriation of property, or of both. This was done by the decree of January 22, 1914. The decree it is true, is interlocutory; but as long as it stands it disposes of everything involved in it. We entertain no doubt of the power of control which the court has over such decrees. This is implied in their very nature. If authority for the existence of such power is required, it may be found in Perkins v. Fourniquet, 47 U.S. 206, 12 L.Ed. 406. This is, however, far from being all. The exercise of power, merely because it is possessed, is the height of unwisdom. The doctrine of stare decisis, where the decision has been made in the very case under consideration, has a value far beyond that of the presumption of correctness. The ruling is much more than merely persuasive, even when the reasoning of the judges by...