Butterick Publishing Co. v. Rose
124 N.W. 647
Wis.
1910
Check Treatment
Barnes, J.

1. The appellant contends that the contract sued on is void because of uncertainty as to the quantity which he should purchase and the price which he should pay for the goods bought thereunder. This court cannot say as a matter *537of law that the retail price of the articles covered by the contract is not a matter that- can he definitely ascertained. The contract provides that the patterns shall not he sold by defendant except at “label prices,” which would indicate that there was stamped on each pattern the retail price at which it should be sold. Defendant is required to keep on hand patterns to the amount of $200 at fifty pér cent, of the retail prices. There is no indefiniteness about this provision where each pattern has the retail price marked thereon. The defendant having obligated himself to buy patterns to this amount, there • is an implied covenant on plaintiff’s part that it will furnish such goods to that amount as defendant may see fit to select out of plaintiff’s stock. Manning v. Galland-Henning P. M. D. Mfg. Co., ante, p. 199, 124 N. W. 291, and cases cited therein.

2. Appellant next contends that the contract is void for want of mutuality. In support of such claim it is urged that the plaintiff is seeking by injunction to enforce the negative covenant in the contract not to sell the goods of other manufacturers, that specific performance could not be enforced by defendant should plaintiff refuse to perform, and that unless there is mutuality of remedy- as well as of obligation equity will not interfere. It has already been said that there is mutuality of obligation under this contract. It is not necessary that there should also be mutuality of remedy in order to enable the plaintiff to enforce such,a negative covenant as is found in the contract sued on. It is so held in a case involving the same contract as is here involved, except that the pur^ chaser was different. Butterick P. Co. v. Fisher, 203 Mass. 122, 89 N. E. 189. And in reference to contracts identical in form with the one sued on. Standard F. Co. v. Ostrom, 16 App. Div. 220, 44 N. Y. Supp. 666, and Standard F. Co. v. Siegel-Cooper Co. 30 App. Div. 564, 52 N. Y. Supp. 433, affirmed on appeal, 157 N. Y. 60, 51 N. E. 408. And in reference to contracts involving the same principle. Popes *538v. Upton, 125 Mass. 258; W. U. Tel. Co. v. Rogers, 42 N. J. Eq. 311, 11 Atl. 13 ; Myers v. Steel M. Co. 67 N. J. Eq. 300, 57 Atl. 1080; Ferris v. American B. Co. 155 Ind. 539, 58 N. E. 701; Waldorf-Astoria S. Co. v. Salomon, 109 App. Div. 65, 95 N. Y. Supp. 1053, affirmed 184 N. Y. 584, 77 N. E. 1197; Southern F. B. & C. Co. v. Garden City S. Co. 223 Ill. 616, 79 N. E. 313; General E. Co. v. Westinghouse E. Co. 151 Fed. 664; Catt v. Tourle, 4 Ch. App. Cas. 654; 1 Joyce, Injunctions (1909), § 457.

3. It is next contended that the contract is in restraint of trade and that it therefore violates the provisions of sec. 1770g, Stats. (Laws of 1905, ch. 506, sec. 2), and is void. While, under the patent laws, a patent creates a monopoly, it is not a monopoly of what existed before and belonged to others, which is the true idea of a monopoly, but it is a monopoly of what did not exist before and what belongs to the patentee. In consequence it does not create an odious monopoly, and the rights of patentees thereunder are to be liberally construed. 30 Cyc. 816, and cases cited. The patentee of an article may sell it to whom he pleases or may refuse to sell it at all. He may stipulate the retail price at which the purchaser from him may sell the article, and may lawfully obligate a special agent appointed by him to sell his article to the exclusion of other articles of a like character. Edison P. Co. v. Kaufmann, 105 Fed. 960; Edison P. Co. v. Pike, 116 Fed. 863; National P. Co. v. Schlegel, 117 Fed. 624; Victor T. M. Co. v. The Fair, 123 Fed. 424. We do not think that the legislature intended to extend the provisions of sec. 177 Op to contracts made in reference to the sale of a patented article. If it did attempt to restrict the rights which a patentee acquires under the constitution and laws of the United States, the legislation could not be upheld. United States C. S. R. Co. v. Griffin & S. Co. 126 Fed. 364; Bement v. Nat. H. Co. 186 U. S. 70, 22 Sup. Ct. 747. The constitution and all laws made in pursuance thereof constitute the supreme law of *539the land. Art. VI, Const. of U. S. Congress is empowered by the constitution to promote the'progress of science and useful arts by securing for limited times to authors and inventors-the exclusive rights to their respective writings and discoveries. Sec. 8, art. I, Const. of U. S. This state could pass no law which materially abridged any right conferred on an-inventor by a federal law passed in pursuance of the power-above granted.

4. It is next urged upon us that the action is not maintainable because the plaintiff has an adequate remedy by an action at law to recover the damages sustained by reason of the-breach of the contract. From a practical standpoint it would be impossible to measure the damage which plaintiff might sustain by reason of the defendant advertising patterns made-by a rival company that was a competitor of plaintiff. So, too, the loss which plaintiff might sustain by reason of the defendant selling other makes of patterns would be most difficult of ascertainment, if it could be shown at all with sufficient certainty to be made the basis of a claim for damages. The-objection that there is an adequate remedy at law will not defeat a suit in equity, unless the legal remedy is as- adequate, comprehensive, and effectual as that afforded by a court of equity. Lawson v. Menasha W. Co. 59 Wis. 393, 397, 18 N. W. 440. An injury will be enjoined as irreparable if its nature be such that it cannot be adequately compensated in damages or cannot be measured by any .certain pecuniary standard. Wilson v. Mineral Point, 39 Wis. 160, 164; Eau Claire W. Co. v. Eau Claire, 127 Wis. 154, 159, 106 N. W. 679.

5. Lastly it is argued that the real remedy sought to be enforced amounts to an attempt to compel the defendant, by indirection, to perform an executory contract calling for personal services, and the case of Chain B. Co. v. Von Spreckel-.sen, 117 Wis. 106, 94 N. W. 78, is- cited to show'that such an action will not lie. This court is called upon to say whether *540■or not a cause of action is stated in the complaint. It does state facts which entitle plaintiff to relief by injunction restraining the defendant from advertising or selling other makes of patterns while its contract with plaintiff is in force. A cause of action being stated, we cannot reverse the order because the plaintiff may, by indirection or otherwise, seek some relief to which it is not entitled, nor assume that the trial ■court will finally grant improper relief.

By the Court. — Order affirmed.