279 Pa. 152 | Pa. | 1924
Opinion by
The B. V. D. Company, a manufacturer of high grade athletic underwear, with an enviable reputation for the
Upon the return of the record, defendant filed its answer, and the issues raised were tried in due course. The chancellor advised a dismissal of the bill, and plaintiff excepted. The court in banc decreed that an injunction should issue, but otherwise adopted the ultimate conclusions of the trial judge. Neither party is satisfied with the decree, and each has appealed, — plaintiff claiming it is entitled also to the statutory penalties and an account, and defendant that an injunction should not have been awarded. A single opinion suffices for the two appeals; they will be decided upon such of the facts as are practically undisputed, — although not actually admitted, — without attempting to consider all the points made in the elaborate arguments of the respective parties.
We held in United Drug Co. v. Kovacs, 279 Pa. 132, that the statutory penalties, provided for in section 4 of the Act of 1901, cannot be recovered in equity,, and there is no necessity to repeat what we there said.
Nor do we see any basis for plaintiff’s claim that an accounting should have been ordered. If this was a suit against a manufacturer, who broadcasted goods which imitated plaintiffs, or were so put up or marked as to mislead purchasers, an entirely different question would arise; but nothing of that kind appears here. The complaint simply is that, in eleven instances, the employees of this retailer, when asked for B. V. D. underwear, sold
The total purchase price received on the sale of those eleven articles, was $11.79, instead of $22, which would have been the amount paid had an equal number of suits of plaintiff’s underwear been sold to and paid for by the same customers. Every such sale was in fact made to an agent of plaintiff’s who tendered in payment, not the amount he knew was the purchase price of plaintiff’s goods, but of other underwear which defendant .had advertised to be sold at a less price, and which actually had on them markings clearly showing they were manufactured by other concerns. Under such circumstances, it was but natural that the salespeople should think that the purchasers desired the goods for which they tendered the exact purchase price, and.not other goods, which were only sold at a different price. So far as appears, no one else asked for “B. V. D.” underwear; and, in all probability, owing to the numerous and necessarily hurried sales made in defendant’s busy store, no other such mistaken deliveries are. likely ever to be known, even if they were made. There is no proof, or averment in plaintiff’s brief, that others can be shown. The question, therefore, is: Ought a chancellor to award an accounting, under such circumstances? We think not. As shown above, the profits would have to be calculated on only $11.79 of actual sales, or $22 of possible
This is, in substance, the conclusion reached in Ludington Novelty Co. v. Leonard, 127 Fed. 155, and G. & C. Merriam Co. v. Saalfield, 198 Fed. 369, in each of which it is said that if there is no reasonable theory upon which a substantial recovery can be based, an account will not be ordered. In 26 R. C. L. 899, the rule is stated thus: “If the trial judge finds that the plaintiff has not sustained enough damages from the defendant’s misconduct to warrant a reference’ to the master, such reference may be refused. The smallness of the claim is a sufficient ground for refusing to exercise jurisdiction in equity.” In the present instance, the total value of the goods shown to have been sold in unfair competition, much less the profits on them, would not be sufficient to cover even the cost of the first meeting before a master.
Nor can we agree with defendant’s complaint that an injunction should not have been awarded. As already stated, in eleven instances, when plaintiff’s undergarments were requested, defendant’s employees furnished those of other manufacturers. It is true this was done innocently. It would hardly be doubted, however, but that an injunction would properly be awarded against a defendant, who had personally made sales under such circumstances, even though he had no intention of wronging the plaintiff. That they were made by defendant’s employees, who were in fact authorized to and did act for it in the particular sales, cannot change this conclusion. If it did, then any one having a large number of employees could readily escape liability for acts done in the course of their employment; and corporations, which can only act by agents, would always escape, unless there was express authority, or a course of conduct so long continued as to give rise to the conclusion that there was knowledge and ratification. If it be thought that this results in hardship to defendant, it may be answered that any other conclusion would cause hard
Many cases hold that where such a wrong has been done, innocent intention is not a defense to the application for an injunction. It is sufficient to refer to Scranton Stove Works v. Clark, 255 Pa. 23; Penna. Central Brewing Co. v. Anthracite Beer Co., 258 Pa. 45; and Charles H. Elliott Co. v. Skillkrafters Inc., 271 Pa. 185, in the next to last of which we said, at page 50: “If the effect be to injure plaintiff, the fact that defendant had no fraudulent intent is no defense.” Elgin National Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, much relied on by defendant, is not antagonistic to the conclusion stated; for, as there said, (page 674): “If a plaintiff has the absolute right to the use of a particular word or words as a trade-mark, then, if an infringement is shown, the wrongful or fraudulent intent is presumed, and although it may be rebutted in exemption of damages, the further violation of the right of property will nevertheless be restrained.” True, that was a technical trade-mark case, but the principles pertinent to that class of cases, apply also to those of unfair trade competition: Scranton Stove Works v. Clark, supra.
Nor are we impressed with defendant’s contention that, since it had not infringed during a period of two years before the trial, and there was no proof it intended to do so in the future, an injunction should not have been awarded. The date-referred to only carries us back to a couple of months before bill filed, and a cessation, under that stress, does not, of itself, compel the belief that the future is secure from repetition of the wrong done; especially as plaintiff cannot know de
The decree of the court below is affirmed, and the two appeals are dismissed at the costs of the respective appellants.