216 F. 601 | 6th Cir. | 1914
After the validity of the plaintiff’s (ap-pellee’s) patent had been sustained by this court (203 Fed. 41, 121 C. C. A. 377), a special master was appointed to state an account of profits and damages. The trial court affirmed his finding that the plaintiff, through the defendant’s (appellant’s) competition, lost four sales of its machine to the Bingham Harness Company, the Voss-Barbee Manufacturing Company, the Southern Oak Feather Company, and the Minnesota Harness Company, and that defendant should consequently pay to plaintiff $100 as profits and $3,480 as damages, and entered judgment accordingly. The defendant thereupon appealed. The only assignment of error that need be noticed relates to the insufficiency of the evidence to sustain an award of damages.
The plaintiff, in 1909, placed a machine on trial with the Bingham Harness Company. It was returned in'the latter part of that year before the defendant’s machine was offered for sale. After the defendant had made its sale to the Southern Oak Leather Company, the plaintiff sold its device to that company and as a part of the transaction took over the machine theretofore sold by the defendant. Subsequently the company complained of the operation of the plaintiff’s machine and refused to keep it, and plaintiff received nothing on account of it. It is manifest that the defendant was wrongfully charged with damages on account of its sales to those companies.
Lause testified regarding the Minnesota Harness Company that “When I called on them at Winona, this company stated that they wanted a long tangled straw machine, but could buy a Randall for $275 or $300, and if Randall would stand back of any litigation that might come, they would purchase his instead of paying us $1,800;” that they “stated they were in the market for tangled straw machines and that they “would not want to pay us $1,800, when Randall was offering the same machine for about $300.” He further testified that plaintiff could have made $1,000 on the machine the defendant sold to such company, basing such statement, he says, upon a letter bearing date of April 22, 1910. There is no letter in evidence which bears that date or warrants such a statement. Aside from certain conclusions of the witness and certain letters sent by the company which show that it had under consideration the machines of both litigants, nothing further appears in the record touching its purchase. The evidence regarding sucli transaction is not so conclusive as that relating to lost sales to the Tenisou Bros. Saddlery Company and the Indianapolis Saddlery Company, in reference to which the master found the proof insufficient to award damages to plaintiff. The defendant objected to the admission of the statements of the Minnesota Harness Company and other manufacturers to Lause, on the ground that the evidence so offered was the recital of conversations had by the witness with third parties in the absence of any representative of the plaintiff. Without finally passing on the point thus raised, but allowing the testimony to- stand for the time being, the master stated that the Minnesota Harness Company people should be called to testify concerning the matters mentioned by the witness, whose testimony he considered hearsay The substance of the several conversations was given in a most general form. In only one instance was the date of the conversation fixed, and but twice were the persons named with whom conversations were had; but the objection did not go to such matters. The evidence was admissible, its purpose being to show the mental attitude of the manufacturers in question and why they did not purchase the plaintiff’s machine. Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 295, 12 Sup. Ct. 909, 36 L. Ed. 706; Steketee v. Kimm, 48 Mich. 322, 324, 12 N. W. 177; Railway Co. v. Herrick, 49 Ohio St. 25, 29 N. E. 1052; Elliott on Evidence, c. 24; Worth v. Chicago, M. & St. P. Ry. Co. (C. C.) 51 Fed. 171. Its truth or falsity, as well as its probative weight, was for the master.
• After the plaintiff had closed its prima facie case the master sent a letter to its counsel — a copy being delivered to the defendant also- — in which he notified plaintiff that regarding the sales actually lost he found but little evidence other than hearsay, but that there was some
For the reasons above stated, the judgment is reversed, and the case remanded for further action by the trial court and the master.'