The Fair v. Kohler Die Specialty Company, No. 169

CourtUnited States Supreme Court
Writing for the CourtHolmes
Citation33 S.Ct. 410,57 L.Ed. 716,228 U.S. 22
PartiesTHE FAIR, Appt., v. KOHLER DIE & SPECIALTY COMPANY
Docket NumberNo. 169
Decision Date24 March 1913

228 U.S. 22
33 S.Ct. 410
57 L.Ed. 716
THE FAIR, Appt.,

v.

KOHLER DIE & SPECIALTY COMPANY.

No. 169.
Argued and submitted March 6, 1913.
Decided March 24, 1913.

Page 23

Messrs. David S. Wegg and Walter H. Chamberlin for appellant.

Messrs. Frank T. Brown and Francis A. Hopkins for appellee.

Mr. Justice Holmes delivered the opinion of the court:

This is a bill in equity, brought by the appellee, and Illinois corporation, against the Fair, also an Illinois corporation, for an injunction against the Fair's making and vending certain patented gas heating devices, or selling such devices of the plaintiff's manufacture at less than $1.50 each; for an account and for triple damages. The bill alleges that the plaintiff has the sole and exclusive right to make and sell the devices throughout the United States, and that the defendant, with full notice, has sold and is selling the same without license, in violation of the plaintiff's right. It then goes on to allege that the plaintiff, when it sells, imposes the condition that the goods shall not be sold at less than $1.50, and attaches to the goods a notice to that

Page 24

effect, and that any sale in violation of the condition, or use of the aritcle, if so sold, will be an infringement of the patent. It further avers that the defendant obtained a stock of the devices with notice of the conditions, and sold them for $1.25 each, in infringement of the plaintiff's rights under the patent.

The Fair appeared specially and pleaded that all the devices in question sold by it were purchased from the plaintiff by a jobber, that the jobber paid the full price to the plaintiff, that upon these facts there was no question arising under the patent or other laws of the United States, and that the court had no jurisdiction of the case. The case was set down for hearing on the plea, so that the foregoing allegations of fact must be taken to be true. Farley v. Kittson, 120 U. S. 303, 314, 30 L. ed. 684, 688, 7 Sup. Ct. Rep. 534. The court, in deference to Victor Talking Mach. Co. v. The Fair, 61 C. C. A. 58, 123 Fed. 424, maintained its jurisdiction, and as the defendant did not answer within the time allowed, took the bill as confessed and made a decree for the plaintiff. The judge stated that he did not feel at liberty to give a formal certificate, but added what appears from the record, that the defendant did nothing except to file the above plea. The appeal is upon the question of jurisdiction alone. There is no uncertainty or ambiguity, and we are of opinion that the case is properly here. Petri v. F. E. Creelman Lumber Co. 199 U. S. 487, 492, 50 L. ed. 281, 284, 26 Sup. Ct. Rep. 133.

Obviously the plaintiff sued upon the patent law, so far as the purport and intent of the bill is concened. It was a resident of the same state as the defendant, and could have had no other ground. In the earlier paragraphs of the bill it charged an infringement of its patent rights in general...

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709 practice notes
  • Smart v. First Federal S & L Ass'n of Detroit, Civ. No. 79-74483
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 15 septembre 1980
    ...recognize that "the party who brings a suit is master to decide what law he will rely upon," The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913), and is "free to ignore the federal question and pitch his claim on the state ground." 1A Moore's Fe......
  • Powers v. South Central United Food & Commercial Workers Unions and Employers Health & Welfare Trust, No. 82-2319
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 31 octobre 1983
    ...his action. Since "the party who brings a suit is master to decide what law he will rely upon," The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 [33 S.Ct. 410, 411, 57 L.Ed. 716] [1913], the complaints in the Delaware Superior Court determine the nature of the suits before 366 U.S. a......
  • Hunter-Wilson Distilling Co. v. Foust Distilling Co., Civ. A. No. 1163.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 24 juin 1949
    ...the storage of 29 barrels of whiskey. 3 Unsuccessful as well as successful suits may be brought. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 33 S.Ct. 410, 57 L.Ed. 716. See and compare Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729; Miller-Crenshaw Co. v. Colorado Mill &......
  • Brewer v. Hoxie School District No. 46, No. 15510.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 25 octobre 1956
    ...38 L.Ed. 511; Louisville & Nashville R. Co., v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716; Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218). Indeed, the complaint itself will not avail a......
  • Request a trial to view additional results
709 cases
  • Smart v. First Federal S & L Ass'n of Detroit, Civ. No. 79-74483
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 15 septembre 1980
    ...recognize that "the party who brings a suit is master to decide what law he will rely upon," The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913), and is "free to ignore the federal question and pitch his claim on the state ground." 1A Moore's Fe......
  • Powers v. South Central United Food & Commercial Workers Unions and Employers Health & Welfare Trust, No. 82-2319
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 31 octobre 1983
    ...his action. Since "the party who brings a suit is master to decide what law he will rely upon," The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 [33 S.Ct. 410, 411, 57 L.Ed. 716] [1913], the complaints in the Delaware Superior Court determine the nature of the suits before 366 U.S. a......
  • Hunter-Wilson Distilling Co. v. Foust Distilling Co., Civ. A. No. 1163.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 24 juin 1949
    ...the storage of 29 barrels of whiskey. 3 Unsuccessful as well as successful suits may be brought. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 33 S.Ct. 410, 57 L.Ed. 716. See and compare Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729; Miller-Crenshaw Co. v. Colorado Mill &......
  • Brewer v. Hoxie School District No. 46, No. 15510.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 25 octobre 1956
    ...38 L.Ed. 511; Louisville & Nashville R. Co., v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716; Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218). Indeed, the complaint itself will not avail a......
  • Request a trial to view additional results

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