Stryker Deflector Co., Inc. v. Perrin Mfg. Co.

• Decision Date: 13 February 1919
• Docket Number: 146.
• Parties: STRYKER DEFLECTOR CO., Inc., v. PERRIN MFG. CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

256 F. 656

STRYKER DEFLECTOR CO., Inc., v. PERRIN MFG. CO. et al.

No. 146.

United States Court of Appeals, Second Circuit.

February 13, 1919

Goldsmith & Fraenkel, of New York City (Lucius E. Varney, of New York City, of counsel), for appellants.

Martin B. Cohn, of New York City (Thomas E. Boyd, of Buffalo, N.Y of counsel), for appellee.

Before ROGERS and MANTON, Circuit Judges, and LEARNED HAND, District judge.

MANTON Circuit Judge.

At the hearing, the appellants appeared and sought an adjournment which was refused. The appellants thus defaulted, and the trial proceeded. Appellee put in its proof, and a decree was entered, from which this appeal is taken. At the outset, the appellants challenge the jurisdiction of the District Court for the Southern District of New York as to the appellants Perrin Manufacturing Company, Nelson J. Quinn, and E. L Allen. Quinn and Allen traded as a copartnership under the name of Perrin Manufacturing Company. The former resides in Ohio and the latter in Michigan. Section 48 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1100 (Comp. St. Sec. 1030)), re-enacting the act of March 3, 1897, c. 395, 29 Stat. 695, provides:

'In suits brought for the infringement of letters patent' in the District Courts of the United States, 'the District Courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought.'

It is asserted that neither Quinn nor Allen fall within the provisions of the above section of the Judicial Code. Service was made upon the appellants named by serving P. M. Asch, secretary of Asch & Co., Incorporated, at No. 16 West Sixty-First Street in New York City. The marshal's return to the subpoena shows that the service was made upon Asch as representative for the said appellants. The act of infringement in the Southern district consists of a sale by Asch & Co., Incorporated, at its place of business No. 16 West Sixty-First street. Unless Asch or Asch & Co., Incorporated, is in fact and in law the agent of the copartnership, the District Court had no jurisdiction. Westinghouse Electric Co. v. Stanley Electric Co. (C.C.) 116 F. 641. It appears, when Mr. Boyd entered the office of Asch & Co., Incorporated, and purchased the device which is said to infringe the Stryker patent, he asked the clerk in charge if Asch & Co., Incorporated, were the New York representatives of the Perrin Manufacturing Company of Detroit, Mich., and the man in charge stated that they were. Apart from this, there is the correspondence in the record between it and Taylor & Co. of Buffalo. There were three letters signed by Asch & Co., Incorporated, and a fourth by the Perrin Manufacturing Company, the latter dated at Detroit on a letter head indicating a New York address, as well as one in San Francisco, Dallas, and Toronto. The New York address appears to be the former address of Asch & Co., Incorporated, but the most these letters suggest was that Taylor & Co. were handling headlights of the Perrin Manufacturing Company, which were purchased through Asch & Co., and dealt with a question of freight allowance. They also contained an assurance that the Perrin Manufacturing Company would protect Asch & Co., Incorporated and their customers on the sales of the Perrin 'No-Glare'; in other words, that the Perrin Manufacturing Company was standing behind Asch & Co., Incorporated, the jobber, in handling the Perrin 'No-Glare.'

We do not think that this circumstance of the manufacturer protecting the jobber or a prospective customer can by any stretch create a presumption that the manufacturer and jobber are one and the same person or firm. While the record contains only the appellee's proof, and we must examine this question in light of the record, we believe that the proofs indicate that Asch & Co., Incorporated, was not the agent of the Perrin Manufacturing Company. Asch & Co Incorporated's, letter heads indicate no relation of agency for the Perrin Manufacturing Company, nor was there any indication by sign on the office door or otherwise, at the place where Mr. Boyd made his purchase. Therefore the testimony as to agency depends upon the information furnished by the clerk in charge of Asch & Co., Incorporated, at the time of the purchase. The language of the clerk is not inconsistent with a relationship of that of manufacturer and jobber handling the product of the Perrin Manufacturing Company. The guaranty to protect against charges of infringement contained in the correspondence is consistent with the relationship of principal and agent. The burden of proof was upon the appellee before it was entitled to a decree as against these appellants to establish the necessary jurisdictional facts. We are not satisfied it has proven that the act of the single sale of Asch & Co., Incorporated, of the Perrin 'No-Glare' shade is sufficient to confer...