Tobey Furniture Co. v. Colby

• Decision Date: 20 February 1888
• Citation: 35 F. 592
• Parties: TOBEY FURNITURE CO. v. COLBY et al.
• Court: U.S. District Court — Northern District of Illinois

35 F. 592

TOBEY FURNITURE CO. v. COLBY et al.

United States Circuit Court, N.D. Illinois.

February 20, 1888

Coburn & Thacher, for complainant.

Banning & Banning, for defendant Meissner.

Hutchinson & Partridge, for defendants J. A. Colby & Co.

BLODGETT J.

An injunction was granted in this case on the application of the complainant, restraining the defendant from making and selling folding-beds containing the devices covered by the patent granted May 28, 1878, to H. P. Blackmore and C. S Green, assignees of Hand and Caulier, for an 'improvement in wardrobe bedsteads.' The writ was granted after notice to the defendants, and a full hearing upon the question of infringement, but on the terms that complainant file a bond in the penal sum of $2,500, conditioned for the payment of such damages as defendants, or any of them, should sustain by reason of the wrongful issue of the writ; and such bond was duly filed. The case proceeded to final hearing on the issues made and proofs taken, and was dismissed for want of equity on the ground that the bedsteads made by the defendants did not infringe the patent in question. On the dismissal, the defendants John A. Colby and Henry C. Colby, comprising the firm of J. A. Colby & Co., and the defendant Robert C Meissner, each filed suggestions of damages sustained by them respectively by reason of the wrongful issue of the injunction; the defendant Meissner being the manufacturer of the bedstead in question, and the defendants J. A. Colby &amp Co. being furniture dealers in the city of Chicago, and having a contract with Meissner for the exclusive sale of such bedsteads for the term of one year. A reference was made to one of the masters of this court, to take proofs and report to the court the amount of damages which the respective defendants were entitled to recover from the complainant on the bond in this case. The master has taken proofs and reported, awarding to J. A. Colby & Co. the sum of $700 for their damages, and to Meissner the sum of $1,800 for his damages in the premises; and to this report the complainant has excepted on several grounds, but which may be stated in two propositions: (1) That this injunction, having been awarded after a hearing on the facts upon the judicial finding of the court that the defendants infringed the complainant's patent, no damages can be awarded for this erroneous finding of the court. (2) That the damages awarded each of the defendants are excessive.

The power of courts of equity, on application for a preliminary injunction pendente lite to require from the complainant a bond to indemnify the defendant sought to be enjoined, as a condition on which such injunction is granted, is too well established to be subject to question at this day. 2 Daniell, Ch.Pr. 1666; 2 High, Inj. 946; Walk. Pat. Sec. 688; Shelly v. Brannan, 4 Fish.Pat.Cas. 198; Fruit-Jar Co. v. Whitney, 1 Ban. & A. 361. Probably the better authority is that, if a preliminary injunction is granted after notice and hearing, without the requirement of a bond, the defendant is remediless, except in cases where the defendant is able to show that the complainant had no probable cause for the writ, and obtained it by imposition upon the court. Gorton v. Brown, 27 Ill. 489; Sturgis v. Knapp, 33 Vt. 486; Cox v. Taylor, 10 B.Mon. 17. But where the court grants an injunction on condition that a bond be filed to indemnify the defendant for damages he may sustain by it, the exacting of such bond is in effect a finding by the court that complainant's right to an injunction is so far doubtful or uncertain as to make it equitable to require a bond; and the complainant and sureties, by giving the bond, must be held to have accepted the terms on which the injunction was allowed, and cannot insist that the bond is inoperative to indemnify the defendant to the extent of the actual damages sustained; the elements of such damages and the amount thereof remaining to be determined by the court in a supplementary proceeding like this, or in a suit at law upon the bond itself.

This brings me to the consideration of the question as to whether the damages awarded by the master are excessive. The proof shows that, within less than a year after the issue of this injunction, the complainant found that the manufacture of this class of folding-beds, or wardrobe bedsteads, was unprofitable, and abandoned their manufacture for that reason; the fact being, as it seems from the testimony, that the public taste had changed in regard to this class of furniture; and also that there were defects in the special structure of such bedsteads that made them unacceptable after trial to the public; and the question in this case is, how much, if any, damages did the defendants sustain by reason of being restrained from making and selling this special form of folding-beds during the time this injunction remained in force? It also appears from the evidence that at the time the injunction was issued and served Meissner had...