O. & W. Thum Co. v. Dickinson

• Decision Date: 29 January 1918
• Citation: 254 F. 219
• Parties: O. & W. THUM CO. v. DICKINSON.
• Court: U.S. District Court — Western District of Michigan

254 F. 219

O. & W. THUM CO. v. DICKINSON.

United States District Court, W.D. Michigan, Southern Division.

January 29, 1918

Chappell & Earl, of Kalamazoo, Mich., for complainant.

Butterfield & Keeney, of Grand Rapids, Mich., for defendant.

SESSIONS District Judge.

The master's order, requiring defendant to file his account and to include therein the names and addresses of all purchasers of goods bearing the infringing trade-mark, is in the form used and employed for many years in this district in accountings of like nature, and should be approved, unless it invades some substantial right of defendant, or violates some established rule of practice, and thus constitutes an abuse of discretion. Equity rule 63 (198 F. xxxvii, 115 C.C.A. xxxvii) prescribes the form and not the contents of the account. An account is none the less 'in the form of debtor and creditor' because it is complete and contains such matters of detail as are essential to the determination of the rights of the parties. Independently of the rule, it lies within the discretion of the court to require the defendant to disclose in his account such facts as are necessary to show, not only his own profits from his wrongdoing, but also the extent of the injury otherwise done by him to the plaintiff.

The finding of the Circuit Court of Appeals that defendant has been a willful and persistent trespasser upon plaintiff's rights is binding upon this court, and constitutes the controlling rule of decision in this case. At best, defendant occupies the position of a trustee ex maleficio and must account as such. The primary object of requiring an unfaithful trustee 'to being in his account is to compel discovery from him as to the details of the transaction under investigation. ' Defendant is not entitled to protection against the consequences of his own malfeasance, and if the full and fair disclosure, which the law requires him to make incidentally involves some personal loss or business disadvantage, the blame therefor rests upon himself alone. Courts should not be so tender of his claimed rights as to destroy the very purpose which the rule was designed to accomplish, or to jeopardize or sacrifice the adjudicated rights of plaintiff.

The claim of defendant that he ought not to be required to disclose the names and addresses of his customers might rest upon a somewhat more substantial foundation, if the profits made by him in the...