19 F. 258 | U.S. Circuit Court for the District of Massachusetts | 1884
The parties have agreed that if, upon the facts submitted, the action can be further maintained, it shall stand for trial;
The principle of law relied on by the defendant, applies to the damages for the second claim' as well as damages generally. It is that the same defendant shall not be twice vexed by the same plaintiff for a single wrong, any more than for a single contract. “Suppose,” said the court, in Farrington v. Payne, 15 Johns. 432, 433, “a trespass, or a conversion of a thousand barrels of flour, would it not be outrageous to allow a separate action for each barrel ?” So far as I have been informed by the able arguments, or have discovered by my own examination, the authorities agree entirely, to this extent, at least, that for a -single wrong, the damages for which are capable of ascertainment, and which is not in the nature of a continuing nuisance or trespass, only one action will lie, and the damages must be assessed once for all. The doctrine has sometimes operated harshly for plaintiffs, whose damages proved to be greater than they were expected to bo. Here, however, the infringement consisted in making and selling certain machines, identical in the two cases, and not for their continued use; and there is no possible element of prospective or uncertain damage. See Bennett v. Hood, 1 Allen, 47; Trask v. Hartford & N. H. R. Co. 2 Allen, 331; Goodrich v. Yale, 8 Allen, 454; Fowle v. New Haven & N. Co. 107 Mass. 352; Folsom v. Clemence, 119 Mass. 473; McCaffrey v. Carter, 125 Mass. 330; Adm’r of Whitney v. Clarendon, 18 Vt. 252; Great Laxey Mining Co. v. Clague, 4 App. Cas. 115.
In giving the opinion of the supreme court, that an unsatisfied
The plaintiff having elected to take judgment for his profits for the precise infringement which is the subject of this action, which judgment has not been reversed, he cannot now prosecute his action for other damages arising out of the same acts of infringement; and, in accordance with the stipulation, there must be a verdict for the defendant.