Eureka Marble Co. v. Windsor Manufacturing Co.

51 Vt. 170 | Vt. | 1878

The opinion of the court was delivered by

Dunton, J.

The master finds and reports that the defendants from time to time after the use of the Lamson machine was enjoined, gave the complainants to understand that they, the defendants, would furnish them with another machine capable of doing efficient work satisfactorily to them, that would not infringe anybody’s patent; but that it came to be understood, by the opening of the season of 187 2, that they would not be able to do it; and that up to this time the complainants had 8,749 feet of channelling done, at a cost to them of twenty cents per foot more than it would have cost them, had they been permitted to do it with their own machine. The master also finds that the Wardwell machine, owned by the Steam Stone Gutter Company, and also the Diamond Borer, known as the Sullivan machine, were readily procurable at Rutland, where the complainants’ quarry is located, at the price of 16,000 each, and that they were each equally as valuable as the Lamson machine in question.

The master also finds that it cost the complainants, up to May 1, 1877, the sum of $9,243.45 more to do their channelling than it would had they been permitted to do it with their own machine. The mandate sent from this court, when this cause was before it in 1874, to the Court of Chancery, required its reference to a master, “ to take and state the account of all necessary damages to the orators by reason of the loss of the use of said machine during the time its use was suspended ... in obedience to said writ of injunction,” and directed a decree for the orators for the same.

The question now before us is, what damages have the complainants necessarily sustained by the loss of the use of the Lam-son machine during the time its use was suspended as aforesaid ? They are such damages as the complainants, by the exercise of reasonable diligence and ordinary prudence, could not prevent, under the circumstances in which they were placed.

It was the duty of the complainants to protect themselves from the injurious consequences of the injunction in question, so far as they could do so by reasonable diligence and ordinary prudence, or at a reasonable expense, for which expense they can charge the defendants.

Says West, J., in Miller v. Mariner’s Church, 7 Greenl. 55 : “ In general, the delinquent is holden to make good the loss occasioned by his delinquency. But his liability is limited to the direct damages, which, according to the nature of the subject, may be contemplated or presumed to result from his failure. Remote or speculative damage, although susceptible of proof and deducible from the non-performance, are not allowed ; and if the party injured has it in his power to take measures by which his loss may be less aggravated, this will be expected of him.” Also see Thompson v. Shattuck, 2 Met. 615.

The complainants were not in faült for not purchasing another machine prior to the spring of 1872 ; for up to that time they were led by the defendants to expect that they would furnish them a non-infringing machine that would do their work satisfactorily; but at this time, when the master finds that it came to be understood by both parties that they would not be able to do it, in our opinion, the complainants should have purchased another machine. It is true that the expense of such a purchase would have been quite large, but not so large in comparison to the extra cost of doing their quarrying without owning a machine, as to justify them in hiring it done by other machines, and charging such extra cost to the defendants. This would be ruinous to the defendants ; besides, it would be extremely difficult to determine when such charges should cease, as the machine, although used, by being repaired, would last a very long time. See Keyes v. Western Vermont Slate Co. 34 Vt. 81.

Therefore, in our opinion, the complainants are equitably entitled to be paid by the defendants the extra cost of the channelling hired done by them with other machines up to the spring' of 1872, it being $1,749.80, with interest thereon from May 1, 1872, and also the cost of another machine as of the same date, which would be $6,000, and interest thereon from said date.

There is nothing in the case showing the value of the old machine. It is probably worth something, and we think the defendants should have the right to elect either to take it back, or have its value as an infringing machine applied upon the damages aforesaid.

The decree of the Court of Chancery is reversed, and the cause remanded, with mandate directing a decree as above indicated.