Int'l Silver Co. v. William H. Rogers Corp.

• Decision Date: 21 April 1904
• Citation: 57 A. 725,66 N.J.E. 140
• Parties: INTERNATIONAL SILVER CO. v. WILLIAM H. ROGERS CORP. et al.
• Court: New Jersey Court of Chancery

57 A. 725

66 N.J.E. 140

INTERNATIONAL SILVER CO.

v. WILLIAM H. ROGERS CORP. et al.

Court of Chancery of New Jersey.

April 21, 1904.

Suit by the International Silver Company against the William H. Rogers Corporation and others. On bill for an accounting. De cree for accounting refused.

E. A. & W. T. Day and Mr. Bartell, for complainant.

Craig A. Marsh, for defendants.

STEVENS, V. C. The final decree reserved the question whether the defendant corporation is liable to account. That question has since been argued, and I have come to the conclusion that no account should be ordered. It would seem that, if ordered, it would not be limited to the profits on sales in the case of which it is shown that customers were actually deceived, but also to profits made on sales, at least to middlemen, of any goods which wear the simulated dress. Lever v. Goodwin, 36 Ch. Div. 1; Fairbank Co. v. Windsor (C. C.) 118 Fed. 96. The more severe the penalty, the greater the diligence complainant should use in asserting its rights. It should not be permitted to stand by, knowing that defendant is devoting its money and efforts to building up a business, wait until after he has made profits, and then come in and demand them as its own. A clear distinction is made in all the cases, English and American, between the right to an injunction and the right to profits. "Cases frequently arise," said Justice Clifford in McLean v. Fleming, 96 U. S. 245, 257, 24 L. Ed. 828, "where a court of equity will refuse the prayer of the complainant for an account of gains and profits on the ground of delay in asserting his rights, even when the facts proved render it proper to grant an injunction to prevent future infringement." Among the cases which he cites are Harrison v. Taylor, 11 Jur. (N. S.) 408, and Beard v. Turner, 13 L T. (N. S.) 746. In both an account was refused, although in the former there was a delay of only nine months, and in the latter a delay of only two years. Their authority seems to have been universally recognized.

The defendant Rogers began business in the summer of 1898. He continued to do business as an individual until May 1, 1901, when he organized the William H. Rogers Corporation. Up to this time the complainant had not sued him. It had brought suit in Connecticut in May, 1900, to restrain the Bristol Brass & Clock Company from manufacturing wares for Rogers; and it had on February 1, 1901, in the United States Circuit Court for the Northern District of New York, obtained, by consent or default, an injunction against the...