Singer Sewing Mach. Co. v. Lang

• Decision Date: 07 April 1925
• Citation: 186 Wis. 530,203 N.W. 399
• Parties: SINGER SEWING MACH. CO. v. LANG.
• Court: Wisconsin Supreme Court

186 Wis. 530

203 N.W. 399

SINGER SEWING MACH. CO.

v.LANG.

Supreme Court of Wisconsin.

April 7, 1925.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Suit by the Singer Sewing Machine Company against Charles R. Lang. From order of circuit court affirming an order of the court commissioner adjudging defendant in contempt, defendant appeals. Affirmed.

Plaintiff commenced this action against the defendant by service of a summons. It then proceeded to examine the defendant under section 4096, Stats., upon an affidavit made for and upon its behalf; it appearing therefrom that the plaintiff is the manufacturer of the Singer sewing machine and that it sells its product directly to the consumer through agents appointed by it in all parts of the country; that the title to sewing machines furnished to its agents is retained in the plaintiff, and the agents are required to sell said machines direct to the consumer at a price and upon terms fixed by the plaintiff; that the plaintiff furnishes to its various agents so appointed various advertising material, literature, signs, and insignias, each of which bears upon its face the trade-mark of the plaintiff, consisting of a large capital S, within which is printed the figure of a female sitting at a sewing machine, which trade-mark is copyrighted by the plaintiff and is its sole property; that no persons other than its duly appointed agents are authorized to display any of its advertising matter, signs, symbols, or designs; that plaintiff causes each of the sewing machines manufactured by it to be identified and marked by a serial number stamped into the metallic part of each of said machines, and that plaintiff maintains accurate records of the serial number of each machine and to whom the same is intrusted as its agents for sale and distribution; that many of said machines are sold through plaintiff's agents to the consumer and user thereof on time payment plans, said machines being intrusted, upon the payment of a certain nominal amount, into the possession of the user and prospective purchaser thereof, the said plaintiff retaining ownership and title thereto; and that in the event the person receiving possession thereof fails to pay therefor according to the contract under which the same is purchased by him, the said plaintiff can repossess itself of said machine, and trace the same and fix its identity by means of and through the serial number stamped upon each sewing machine manufactured by said plaintiff.

That notwithstanding the fact that the defendant has never been appointed by the plaintiff as its agent for the sale of its machines, nor authorized to display its advertising material, signs, trade-marks, and insignias, the said defendant advertises that he is selling and can sell to the user and consumer said plaintiff's new sewing machines at a price less than that which its duly authorized agents are permitted to sell the same for, and that he is enabled so to do because he obtained said machines in an unlawful and fraudulent manner, from persons having no title thereto, for the reason that said machines have not been paid for to said plaintiff, and are its property; that the serial numbers of the machines so sold by the defendant are defaced, altered, and changed so that said machines cannot be followed and identified by the plaintiff, all to its great damage and injury.

That the general nature, object, and purpose of the action is to enjoin and restrain the above-named defendant from holding himself out as an agent of said plaintiff corporation, and from holding himself out as a person duly authorized to sell new Singer sewing machines for and on behalf of said plaintiff, from selling said plaintiff's sewing machines as the property of said defendant, from selling said machines at a lower price than that fixed by said plaintiff, and to enjoin and restrain defendant from using, displaying, or exhibiting any of its advertising matter and to deliver the same up to said plaintiff, to compel an accounting and to collect damages for the wrongful acts set forth, and to restrain the defendant from mutilating, defacing, or altering the serial numbers on each and every of the Singer sewing machines manufactured by the plaintiff, and from selling new Singer sewing machines until he is so employed and authorized by plaintiff; that discovery is necessary in order to enable the plaintiff to plead, and that the points on which such discovery is desired are as follows:

(1) The person, or persons, from and through whom the defendant obtains, and has obtained, the new Singer sewing machines in his possession, and under his control, and the new Singer sewing machines manufactured by said plaintiff, heretofore sold by said defendant, together with the names and addresses of the persons to whom machines were sold, and the price paid by such persons.

(2) The serial numbers of the respective Singer sewing machines manufactured by said plaintiff now in the defendant's possession, or heretofore sold by him, or his agents, in the city of Milwaukee.

(3) The person, or persons, from whom and through whom he obtained the various Singer sewing machine advertising matter, trade-marks, trade-names, or designs, in possession of the defendant and used and displayed by him in connection with his business.

(4) The price which the said defendant pays for the new Singer sewing machines manufactured by said plaintiff, in his...