296 F. 117 | 2d Cir. | 1924
(after stating the facts as above). This suit began as an attempt by the Wisconsin plaintiff to sue its Wisconsin neighbor in the city of New York; the bill alleging that the defendants “and each of them” had within the Southern district of New York “jointly and severally unlawfully and wrongfully made, used, and sold” infringing switches.
As against the Wisconsin defendant the effort failed in limine, because that corporation had no “regular and established place of business” within the district. It had not even an agency therein, and the reception and even the solicitation by Curtis & Carhart of orders for transmission to Milwaukee did not subject Union Company to suit in the New York district. Tyler v. Ludlow, etc., Co., 236 U. S. 723, 35 Sup. Ct. 458, 59 L. Ed. 808.
The proof shows that neither defendant either made or used the articles complained of within this jurisdiction, nor did the Union Company sell them therein, under the method of business proved. Tyler v. Ludlow, etc., Co., supra; Chicago v. Di Salvo, 302 Ill. 88, 134 N. E. 5;
No one can sell an article, unless he transacts what the law calls a sale, and that word is defined by the Uniform Sales Act (in force both in New York and Wisconsin) as a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. This Curtis & Carhart did not do; they never had the property in these “contact fingers” to transfer. They took the order as given, and transmitted it to Union Company in Milwaukee, which was entirely at liberty to accept or reject it. It accepted, and shipped to Curtis & Carhart for délivery to the giver of the order. The appellant did not buy these contact fingers, and never owned them. While they could and did transfer the possession on payment of price, they never owned the price, any more than they owned the goods. In short, their relation to the entire transaction was that of a conduit; plaintiff’s agent bought from Union Company and that company sold to him. Cases supra.
This suit we are compelled to regard as an attempted abuse of the enlargement of jurisdiction given by the act of 1897. That statute conferred on patentees greater privileges, by way of choosing where to sue, than most citizens enjoy. It may he used as an instrument of oppression, and this is an instance thereof. The inference is irresistible that plaintiff, whose patent has been sustained by this court (Cutler, etc., Co. v. Pawling [C. C. A.] 267 Fed. 980), preferred this circuit for further vindication of rights, against even trivial alleged offenders, rather than proceeding against the admitted maker and seller next door. This effort must fail.
Decree reversed, and cause remanded, with directions to dismiss the bill.
