203 F. 45 | 7th Cir. | 1913
(after stating the facts as above).
Coming to the issue upon the merits of the petition, we believe the determination must hinge upon the inquiry whether the accounting required of this defendant, under the mandate, is within the above-stated general provision of equity for the remedy of accounting. That Eqitity Rule 79 — made rule 63 in the new rules (198 Fed. xxxvii, 115 C. C. A. xxxvii) recently promulgated — is both applicable to such general provision and mandatory in its requirements, cannot be open to question.
The purpose “of requiring the accounting party to bring in his account in the form of debtor and creditor is to compel discovery from him as to the details of the transaction under investigation.” 2 Bates on Fed. Eq. Prac. § 759. See, also, 1 Pomeroy, Eq. Jur. §§ 223-239. So, ascertainment of the profits attributable to the infringement requires such discovery, not alone of the gross sales, but of all items of cost entering into the production and sale, which are presumptively within the knowledge or means of information possessed by the infringing manufacturer. In reference to these items, it is rightly averred in the defendant’s answer that they involve “many factors and considerations which do not enter into ordinary accountings”; that to ascertain the profits “many deductions are allowed to the defendant” for various expenses, including “proportional overhead expenses” entering into the production and sale. Nevertheless, they are plainly capable of specification in the form of debits and credits for the purposes of the accounting, and the complications mentioned, together with the fact that the items aré within the exclusive knowledge and possession
The answer does not deny possession of the information referred to, and, if not equivalent to an admission thereof, it may reasonably be inferred that the defendant, engaged extensively in the manufacture and sale of the products in question, in accord with the well-known need and practice of manufacturers generally, has information of the various items of cost entering therein as required for fixing the value and price of products. Complaint is made, however, that large expense and labor would be involved in preparing the statements, imposing a burden upon the defendant which should be borne by the complainant under the general rule referred to. But this contention is without force, in the light both of the equities thus far settled and of the rule of equity thereupon.
We are neither required nor authorized to determine the questions suggested in the argument, either whether the master’s summons includes requirements not within rule 79, or which thereof seem to he questionable. As indicated above, requirements appear therein which are within the rule, and the summons was quashed for the reason alone that the District Judge denied application of that rule to the accounting. It is for the chancellor presiding therein to determine the matters of account to be stated by the defendant under the rule, in the form of debtor and credit items, when found to be applicable to such accounting.
We are of opinion, therefore, that the petitioner is entitled to the writ to require obedience to the mandate for an accounting by the defendant, pursuant to Equity Rule 79 and the foregoing ruling upon its applicability, and the alternative writ issued herein is accordingly made peremptory.