Foster Mfg. Co. v. Cutter-tower Co.

• Decision Date: 24 May 1913
• Citation: 101 N.E. 1083,215 Mass. 136
• Parties: FOSTER MFG. CO. v. CUTTER-TOWER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 136

101 N.E. 1083

FOSTER MFG. CO. v. CUTTER-TOWER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1913

COUNSEL

Robert Cushman and Charles D. Woodberry, both of Boston for plaintiff.

Macleod Calver, Copeland & Dike, of Boston, for defendant.

OPINION

SHELDON J.

Upon the finding of the master the witness Woodsum properly was allowed to testify as to the selling price and the cost of the plaintiff's product. He testified from his personal knowledge; and that being so his testimony was competent, although books and records kept by him contained written statements of the same facts. That he could not recall certain items of general expense, such as telegrams and expressage, which entered into the average cost of the goods, did not show conclusively that he had not such knowledge. He might know the total amount without being able to remember all the minor items that went to make up that amount. The case does not come within the rule of Hunt v Roylance, 11 Cush. 117, 59 Am. Dec. 140, relied on by the defendant. Nor was the plaintiff bound to produce voluntarily these books and records, though it might have been compelled to do so by proper process.

At the argument before us the plaintiff contended that it was entitled to recover from the defendant both the damages which it has sustained from the defendant's wrongful use of its trade-name and the amount of the profits realized by the defendant therefrom. We agree that the plaintiff is so entitled, so far as this may be necessary for its full compensation. Regis v. H. A. Jaynes & Co., 191 Mass 245, 250, 77 N.E. 774; Forster Manufg. Co. v. Cutter-Tower Co., 211 Mass. 219, 223, 97 N.E. 749. But this does not mean that the plaintiff may recover from the defendant both the amount of the latter's profits as such and also damages assessed upon the theory that the plaintiff, but for the defendant's wrongful acts, would have made the sales which have been made by the defendant, and so is entitled to recover an additional amount for the profits which it has lost. It may not recover a double compensation for the same sales. The plaintiff is not to derive a double gain from the defendant's sales, by recovering in addition to the profits made by the defendant from its sales those which by reason of the same sales the plaintiff has lost the opportunity of making. This would be a manifest injustice. The plaintiff in such a case as this may, to be sure, have suffered some particular loss or damage for which the receipt of the defendant's profits would not compensate him. If, for example, the defendant has attempted to...