Dickerson v. Matheson

50 F. 73 | U.S. Circuit Court for the District of Southern New York | 1892

Coxe, District Judge.

The court cannot now disregard the stipulation of January 16, 1890. Assuming that the commission afterwards issued was inconsistent with the terms of the agreement, it was clearly the duty of defendants’ counsel to move to have the stipulated evidence expunged. The complainant could then have proved in other ways most, if not ail, of the facts agreed upon. It would be manifestly unfair to permit a party to come down to final hearing and then without previous notice strike from the record proof upon which his adversary has, in good faith, relied to establish his side of the controversy. However, after having read the record with care I do not recall an instance where a material fact of the stipulation has been proved untrue. In so far as the testimony of Mitchell relates to what he heard Domeier and others say it is clearly hearsay and cannot be considered.

Upon the merits the only question is one of infringement. The defendants admit having sold the patented coloring matter in this country, but they allege that they had a right to do this, having purchased it in open market without restrictions, the title coming from those who were licensed to sell it under the patents. It is argued that the bargain was originally made without restrictions and that the Berlin Company could not alter its terms by a notice upon the invoice. This contention is based upon the theory that the statement “strong for export” in the order of Domeier & Co. was notice to the vendor that the goods were to be sent to the United States. There is no foundation for such an assumption. If, when a London merchant, dealing with a Berlin merchant, uses the term quoted he means that the goods are to be exported to the United States that fact should have been proved. It cannot be inferred.

Again, it is said, that Domeier & Co. were not bound by the notice of restriction, because Mr. Domeier did not see it till one or two days after the sale was consummated, and that Domeier & Co. were not bound by the act of their clerk in accepting the invoice containing a notice printed in a foreign language. If such propositions are to receive the sanction of the courts it will be well-nigh impossible to carry on the business of commerce. A person cannot avoid responsibility by closing his eyes and ears and delegating his business to others. If Domeier & Co. would have been hound by the notice of restriction had Domeier personally received the invoice in exchange for the check the firm is equally hound by the action of their clerk. The clerk stood in the place and stead of Domeier & Co. and represented them in that transaction. He stood for the firm precisely as a cashier represents a hank, or a purser a ship. He was acting entirely within the scope of his authority. His acts were the acts of Domeier & Co. Story, Ag. § 135. The entire invoice was in the German language, but no objection to receiving it was made on that account. Indeed, the presumption is that the invoice was perfectly understood when it is remembered that a large part of the correspondence with Domeier & Co. was carried on in that language. If the copy of the invoice printed in the record is correct, the notice was conspicuously, placed and was one which Domeier would have seen and understood at a glance. The firm cannot escape responsibility by proving that one member did not know of the notice until a day or so after-wards. There is nothing in the want of knowledge by Domeier incompatible with legal knowledge by the firm, through its duly-authorized agent or otherwise, of the contents of a paper which was their voucher for the goods.

In Steers v. Steam-Ship Co., 57 N. Y. 1, the court, at page 5, says:

' “That the plaintiff herself never read the contract is of no moment. The arrangement was made by her agent, who must be presumed to have acquainted himself with the terms of the engagement which the'defendant assented to.”

In Belger v. Dinsmore, 51 N. Y. 166, it was said, at page 170:

“The presumption of law is that a party receiving an instrument, in the transaction of any business, is acquainted with its contents.”

In Kirkland v. Dinsmore, 62 N. Y. 171, it was held that—

“A party cannot escape from the terms of a contract in the absence of fraud or imposition, because he negligently omitted to read it; and when the other party has a right to infer his consent he will be precluded from denying it to the other’s injury. ”

It is argued that the transaction, having taken place in London, is to be governed by English law, and certain English authorities and statutes are referred to. But there is no adequate proof of what the law of England is. The rule is well established that foreign laws, written or unwritten, must be proved as facts in the courts of this country. Pierce v. Indseth, 106 U. S. 546, 1 Sup. Ct. Rep. 418; Ennis v. Smith, 14 How. 400, 426. It must, then, be held that the order of Domeier & Co. upon Greeff <& Có. of November 4th did not operate as a completed sale; that the expression “strong for export” was not notice to the Berlin company, or its agents, that the goods were intended for the United States, and that the Berlin company had the right to insert the prohibition clause; that Domeier & Co., having received and retained the invoice containing this clause, accepted the goods subject to this restriction.

The simple question, therefore, is this: Whether the owner of patents, granted in Europe and the United States, who sells the patented article in Europe with restrictions against importation into the United States, can treat as an infringer one who uses or sells that article in this country. This question is res judicata in this court. On the motion for a preliminary injunction it was held that “ the right of the complainant to treat the defendants as infringers hinges upon the question of fact whether Domeier paid or sent his check for the benzo-purpurine * * * before he received the invoice which gave notice that the patented article was sold on condition that it was not to be used or sold in the United States.” Dickerson v. Matheson, 47 Fed. Rep. 319. In other words, it was decided that the restriction would follow the goods to this country if the original sale was made subject to the restriction, and that the sale was so made if the goods were paid for after or at the time the notice on the invoice was received. To the same effect, by implication, is the case of Holiday v. Mattheson, 24 Fed. Rep. 185. If the defendants were bona fide purchasers led inadvertently into the attitude of infringers the court might, perhaps, be more zealous to protect them, but the impression cannot be avoided that they do not occupy such a position. The complainant is entitled to a decree.