66 N.J. Eq. 140 | New York Court of Chancery | 1904
The final decree reserved the question whether the defendant ■corporation is liable to account. That question has since been .argued, and I have come to the conclusion that no account should be ordered. It would seem, that if ordered it would not be limited to the profits on sales, in the case of which it, is shown that customers were actually deceived, but also to profits made on sales, at least to middlemen, of any goods .which wear the simulated dress. Lever v. Goodwin, 36 Ch. Div. 1; Fairbank Company v. Windsor, 118 Fed. Rep. 96. The more severe the penalty, the greater the diligence complainant should
The defendant Rogers began business in the summer of 1898. He continued to do business as an individual until May 1st,. 1901, when he organized the William H. Rogers Corporation. Up to this time the complainant had not sued him. It had brought' suit in Connecticut, in May, 1900, to restrain the Bristol Brass and Clock Company from manufacturing wares for Rogers, and it had, on February 1st, 1901, in the United States circuit court for the northern district of Hew York, obtained, by consent or default, an injunction against the Benedict Manufacturing Company to restrain that concern from acting as Rogers’ selling agent. T'o neither of these suits, however,, was Rogers made a party. Why he was not sued in Hew Jersey does not appear. The fact is he was not. Mr. Mills, the complainant’s solicitor, says that he had prepared a bill against him “some little time after the end of the Benedict suit” (i. e., February 1st, 1901). He did not file it because he leamed. that the Rogers corporation had been organized. He waited until June 7th, 1902, and then began the present suit.' Ho notice was ever given to Rogers that the complainant intended to proceed against him or against his corporation. During the-