MARTHA WASHING'J.'ON.CREAMERY BUTTERED FLOUR CO. V. MARTIEN.
473
public, before it can give the right to a street railway to use it.', It is the road, not the place where the road may be made,which is the thing dealt with. If a city or county may declare a street or road open, and then, without actually building the street or road, grant permission to a street railroad to use it, and if this should authorize the street railroad to open and use it, it might never be used, in fact, as a street or road by the public, but simply as a street railroad, without the easements costing it a dollar. The city or county would pay for the right of way. Suppose the city of Chattanooga should declare a new street open across all the tracks of the switch-yards of the various railroads that come within the city, and then, without opening the street in fact, should permit a street railroad to use the street, it would hardly be insisted that authority so granted would confer absolute power upon the street railway to open up and use such street. It will hardly be contended that a cotirtof equity might not interpose to prevent such an injury to the railroads as would result, and danger to the public as would necessarily follow. This is an extreme case, to be sure, but sometimes extreme cases illustrate a principle. The conclusion reached is: Firat. The county has not established and opened the road which, it is claimed, crosses at the point defendant proposes to build its tr.ack over the railroad tracks. Second. That if the road bad been opened arid established by the county court, defendant would not be allowed to cross and use complainants' road-beds and rights of way without compensation to complainants. Therefore an injunction is granted, as prayed for, as to Harrison Avenue road, but not as to East End avenue. It has not been deemed necessary to pass upon-the other questions raised, and so ably argued by counsel, at this stage of the case.
MARTHA WASHINGTON CREAMERY BUTTERED FLOUR STATES, Limited, v. MARTIEN.
Co.
OJ!'
UNITED
(Oircuit Court. E. D. Pen'1l.81lwania. December 16,18l1O.)
t.
1'BADB-lbRKS-INlI'RINGBMBNT-INJUNCTION-DEFENSBS.
to
In a suit. to restrain infringement of plaintilr's trade·mark it is· no defenM that. delendl!.ut had a,license for its use, where the contract for the license requires defendant to keep books, make returns, and pay royalties or forfeit the license, and it is shown that defendant failed to perform these conditions, and that plaintiff notified him that the license was terminated.
SA.MB-COMPENSATION.
Nor is it any defense that compensation may be made, for plaintiff is not Meking to enforce a forfeiture, but insiats that the license is terminated by the tel'ms of the contract. Nor is it any defense that defendant bad purchased machines constructed OD plaintilr's order for the manufacture of the article under the license, where auch machines were not made by 'plaintiff, and he derived no advantage from theil' construction or purchase. . ,
. . SA.MB-PUROlUIB OJ' MA.OHlNItS.
In Equity. Rep. 797.
On final hearing.
For statement of facts
37 Fed.
474
I'BDEBAL BEl'OBTEB I
vol. 44.
Walter D. EdmtmdB, for complainant, cited: ",btor v. Tu.1"n6r,l1 Paige, 436; Mttchell v. Bartlett, 51 N. Y.447; Argall v. Pitts, 78 N. Thomas, MOl'tg. § 896; Teal v. Walker,l11 U · .8. 242. Rep. 806; ])ow v. Railroad 4 Snp. Ct. Rep. 4l30; Young v. Iron 00., 13 00..,20 Fed. Rep.J68; Blanchard Sprague, 1 Clill'. 297; Seibert. etc., OilOup 00. v. Detroit Lttbricator'Oo., 34 Fed. Rep. 221; Railway 00. v. DuboiB, 12 Wall. 64; Bill v. Epley, '81Pa. St. 334; Pattersonv. Lytle, 11 Pa, 53; McMillin v.' Barclay, 5 Fish. Pat. Cas. 201; t:JinllerManuf'g 00. V. June Manuf'u 00., 41 Fed. Rep.208.; Waterman v. Shipman, 39 O. G. 892; J[anv,facturingO(). .Y. Stanage, 6 Fea. Rep. 279; Manufacturing Go. v. Ril81l, 1l Fed. ];tep. 706; Galley v. Manv,facturing 00., 30 Fed. Rep. 122. Horace Pettit, for defendant, cited: 'In.mrance 00. v.Nortun, 96 U. 8. 234; Bisp. Eq. p. 236. § 181; Hughes v. Directo'l'8, etc."L,R. 2 App. CliS. 439; McNeit V. A.mey, 2 ,Wkly. Notes Cas. 65; qilJJrf.ekR. 00. V, A.tlantic, etc., R ·. Go., 57 Pa. St. 65; Jeremy, Eq. JUl'. 425, 471; 4,dams,lJ:q. 77, note; 2 Eq. JUl'. §§ 742,750,1319, 1323; Steedman v.CJook, 13 Serg.& R.172:Funk V, Halr/eman, 53 Pa. St. 239; Wilson v. Le1iJt'i 2 Yl'lltes,466'; Kemble v. Graff, 6 Phila. 402; EWa1't v. Irwin, 1 Phila: 78; Haverstick V. Gas 00.,29Pa. 1St. 254; Snow v.A.lley, 144 Mass. 546, 11 N. E. Hep. 764; Brooks V. Stolleu, 3 McLean, 523; Goodyear v. Ga., a Blatchf. v. Manv,factU1'lllg Co., 2 McCrary, 3AO, 7: Fed. Rep·. aD!:!; White v. kee, 3 Fed. Rf'p. 222 ; Hartell v. Tilghman. 99U.S·. 547; WilsC!n v.Sand/01'd, 10 How. 99; Hartshorn V. Day, 19 Huw. 211f GiJodyear v. Rubber Go., 4 Blatchf. 63; Blanchard V. Spra.que. 1 Cliff. 6 Blatcht 356; Oha.fff::e V. Bolting 00., 22 How. 217;llUiom8r 'Y. McQuewan, 14 How. 539; Wilson V. Rou8seau, 4 How. 646; WilsorJ v. Simpson, 9 How. 109; HammQnd V. Organ 00., 92 U. S. 724.
BO'l'LER,J. The suit is brought to recoyer damages for infringing the.plaintiff's trade...mark, and for an injunction against further infringement. The only defenses urged on the (and none other will be considered) were-First, aJicense, and, second, the purchase of machines which carried the right to use the mark on flour made by them. is sustained by the proofs. The contract on which the depends contains a clause for its expiration on failure to keep books, make returns, pay royalties, and to comply with other provisions. In neither of the. respects specified did. the defendant conlply. Not only do the proofs show this failure, but the defendant's lette1"& distinctly and unequivocally admit it. After earnest but ineffectual effort'to induce compliance. the' plaintiff notified defendant that the termination of.the license was insisted upon. The subsequent offer to comply is unimportant. Conceding that the non-payment was excused while the, ownership of royalties was in controversy, the defendant is not excuSftble'for the period which elapsedillterthe controversy terminated. In the face of his written admissions the excuses now urged for the fail, nre dUl'ing,this"periodare·entitled.to no weight. The argument that it is iqeqpi'tlilble to .hold the defendant to his contract; that compensation nu(ybe u!lade for hisfriilurej and the authorities cited in support of it,is aPI?ealing to equity to dec1l1re a {orfett1lre, nor to asSIst In obtaIning Its frUIts. He stands his trade-mark alone, and when the defendant sets up the contractor
"
license'
UNITED. :STATES'V.LALONE.
475
licl;lDse, he siu'lply points to the fact that it has terminated. His right to insist on the provision from which this result· flows is as sacred as of the defendant, arising from other provisions. . The purchase of was not made· from the , They were constructed by others, on the defendant's order, to be used in the manufacture of flour under the license. The plaintiff derived no advantage from their construction or purchase. The aJIegations of the answer in this respect ·are n.ot sustained by the. proofs. The plaintiff is entitled to a decree for an account, and an injunction.
UNITED STATES t1. LALONE
et ale
(Circuit Court, E. D. Wisconsin. December, 1890.) PENSIONS-ESTOPPBL-COMMISSIONER'S RULINGS. . 8
The commissioner of pensions is not a judicial officer, and bis rulings in granting pension upon improper or fraudulent testimony do not estop the govtlrument from recovering back moneys paid thereunder.
At Law. Elihu Coleman, for the United States. J. E. Malone and E. S. Bragg, for defendant.
Before
GRESHAM
and
JENKINS, JJ.
GRESHAM, J., (ora11y.) Joseph Lalone was mustered into the military service of the United States as a private soldier in summer or during the litllof1864, and sent to the first Wisconsin Heavy Artillery, which was then stationed somewhere on the Potomac river, where he contracted ague. He was discharged in the summer of 1865, and went to his home in Wisconsin, sLill suffering from that diseal;le. In 1888, on an application filed in 1880, Lnloneobtained a pension 011 the ground that aUer his discharge he was paralyzed, the paralysis resulting from the ague contracted in the service. This suit was brought to recover money paid to Lalone as a pensioner, on the theory that the pension was obtained by fraud. The evidence shows that a year or more after his discharge Lalone WIlS thrown or pitched from a wagon and injured, and subsequently became paralyzed; and the government insists that the paralysis resulted from that injury, and not from the disease which he contracted in the service. We are satisfied, after fairly weighing the evidence, that this contention is correct. Several witnesses testified that they saw Lalone thrown from the wagon, and that he was injured thereby. It is claimed, however, that there was ill feeling existing between the Lalone lamilyand those .vitnesses, growing out of acontroversyill regar4 to thl;llayingout of a highway. Lalone himself did not testify that there was any such ill feeling. His wife was the only witness who testified that there was