Lacroix v. Lyons

• Decision Date: 11 January 1888
• Citation: 33 F. 437
• Parties: LACROIX v. LYONS. [1]
• Court: U.S. District Court — Eastern District of Louisiana

33 F. 437

LACROIX v. LYONS. ^[1]

United States Circuit Court, E.D. Louisiana.

January 11, 1888

Farrar & Kruttschmitt, for plaintiff.

Ernest T. Florance, for defendant.

PARDEE J.

This cause has been submitted on the sufficiency of the plea filed by respondent. The original bill was filed in the civil district court for the parish of Orleans, as a petition under the state practice, and an injunction thereupon obtained, on the thirteenth day of September, 1884. This bill alleged in substance that petitioner had for many years manufactured cigarette papers, and had adopted as a trade-mark for the same a certain design described in the petition, and alleged in substance that said paper had been sold and offered for sale in the city of New Orleans and elsewhere, and furnished to jobbers by a firm known as May Bros., in the city of New York, either personally or through one Joseph Lyons, an agent. The usual allegations in suits for infringement of trade-marks follow, and the prayer of the petition was for an injunction against Lyons, restraining him from selling cigarette papers, pirating upon petitioner's trade-mark and praying for an account of all profits made by Lyons from the sale of these cigarette papers.

After the removal of the cause to this court, and the reformation of the bill or petition, and after motions to remand and a demurrer have been overruled, defendant has filed a plea setting forth that in a certain cause between complainant and one Manuel Escobal, numbered 12,149 of the docket of the civil district court for the parish of Orleans, all the matters and things and issues presented in the complainant's bill herein were presented, and on the twenty-seventh day of April, 1885, were determined by a final decree of the supreme court against complainant, as will appear from a certified copy of the record in said cause, and of the decree therein, annexed to and made part of the plea that the object and cause of action in the suit of Lacroix v Escobal was the same as the object and cause of action in the bill of complaint herein. Defendant further shows that Manuel Escobal and defendant were privies in said cause of Lacroix v. Escobal, in this: that said Escobal did the acts alleged in the petition in said cause as the vendee of defendant in the cause herein; that said Escobal's right to do the acts complained of in said petition, which said acts were and are identical with the acts complained of as being and having been done by the defendant in the bill herein, was derived from and limited by the right of defendant herein to do said acts, and if said right be complete in defendant's vendee to do and perform said acts, then said right is complete in defendant to do and perform said acts, and defendant pleads the record and judgment as an estoppel or record against such portion of the bill of complaint as alleges an exclusive right in the complainant to use the alleged trade-mark claimed in said bill, and as res judicata as a bar to recovery in said bill. There is no averment in the said plea that Lyons was a party to the said cause, nor that he defended the same openly or otherwise, nor that his said relations with the defendant in that cause were known to the complainant.

Herman in his work...