32 F. 292 | U.S. Circuit Court for the District of Southern New York | 1885
The complainant’s exceptions to the report of the master upon the accounting under the interlocutory decree raise the question whether the master erred in finding that no damages were established by the proofs before him. The complainant insists that he is entitled to recover, upon the theory that he proved an established royalty for the use of his patented invention when licenses were granted by him to others. It appears that he instituted 10 or 11 suits against infringers, and in all these cases, except one, a settlement was made between the parties — in some instances before and in others after a decree — by the payment of the sum of $50 for each infringing machine sold or used by the respective defendants. No other testimony was offered bearing upon the question of royalty. Whatever effect it might seem proper to give this testimony were the question an open one, in view of the decision in Westcott v. Rude, 19 Fed. Rep 830, where it was carefully con
The complainant also insists that he should be allowed for the loss sustained by him by reason of the diversion of sales which he would have made but for the sales made by the defendant. He failed, however, to give any evidence showing the cost of his machines, and therefore there was no basis for a computation of his loss of profits.
The conclusions of the master are fully approved concerning the alleged loss of the complainant by reason of the enforced reduction in his prices for his machine, owing to the competition of the defendant. A circumstance in addition to those suggested by the master, as tending to show this part of the plaintiff’s claim to bo merely conjectural, is found in the fact that the complainant gradually reduced his prices from the time he first put his machines on the market, down to the time when the defendant commenced to compete, and this reduction continued after the defendant was enjoined, the prices for 1882 being lower than they were in 1880. It is probable, from the fact that the defendant sold his machines at an average price of about $36 below ihe complainant’s price, to the complainant’s customers, that the complainant has sustained damages for which he has not been compensated, because he would probably have sold these machines himself, and realized his usual profit on them. But, in the absence of any proof to show what this profit would have been, no other conclusion was possible than that which was reached by the master. He may have sold his machines at a loss.
The exceptions are overruled.
