Meccano, Ltd. v. John Wanamaker, New York, 250 F. 250

Meccano, Ltd. v. John Wanamaker, New York

250 F. 250 | 2d Cir. | 1918

LEARNED HAND, District Judge

(after stating the facts as above). We pass the question of practice whether this court, under the doctrine of Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 488, 20 Sup. Ct. 708, 44 L. Ed. 856, may enter a decree for the plaintiff upon such an appeal as that now pending. Mast, Foos & Co. v. Stover Mfg. Co., supra, was a case where the bill was dismissed, and no case has so far held that the plaintiff could obtain an affirmative decree. As we think the motion must be denied upon the merits, we leave open the question whether the plaintiff may in any event so terminate the litigation.

We further disregard the objection that the Ohio decree is still only interlocutory, and therefore under general principles cannot in any event constitute an estoppel. How far this rule may be changed when there has been a decision upon an appeal from such a decree, and the cause has been remanded to the district court, we do not say. The reason for the rule limiting the conclusiveness of interlocutory decrees does not apply; i. e., that the decree still remains in gremio, since the District Court has no longer any power to modify so much as has been affirmed by the Circuit Court of Appeals. Eor the purposes of this motion, we may assume that, in so far as concerns the matters before the Circuit Court of Appeals, the issues have been finally and conclusively determined.

[1] Nor, again, do we consider how far the effect of that decree may be to entitle the plaintiff to an injunction against the defendant against selling any of the toys or manuals which it may buy from Wagner. This is a question which will arise upon the appeal from the injunction pendente lite, and need not depend in any'sense upon the estoppel of the defendant by that decree. It might, for example, be held under an extension of the doctrine of Kessler v. Eldred, 206 U. S. 285, 27 Sup. Ct. 611, 51 L. Ed. 1065, that the purchase of toys and *252manuals from Wagner, which he had been enjoined from selling, if not in actual contempt of that decree, was at least in derogation of the plaintiff’s rights established thereby, and thus a tort against it, regardless of the defendant’s personal right to sell toys and manuals, if bought from others, or to manufacture them itself and sell them without the co-operation of Wagner. What we have before us is whether, conceding all this, the plaintiff has established, or can establish, in the Ohio suit, any estoppel which will generally conclude the defendant upon all the issues raised between itself and the plaintiff by the pleadings in this suit.

We think it clear that that decree cannot have any such effect, and Judge Ray so ruled in Van Epps v. International, etc., Co. (C. C.) 124 Fed. 542. The cases which generally come up are those in which in the first suit the manufacturer has intervened to protect the customer, and it has been held that the decree then entered will be a good estoppel in the second suit instituted against him individually. We may assume that Wagner’s intervention here is of such a kind as would create a good estoppel against him in any subsequent case. The case at bar, however, is exactly the reverse, and, unless all the issues are the same in each case, we should not dispose of the suit in this summary manner. It is apparent that some of the issues are different from those litigated in Ohio; they involve, not only the defendant’s right to sell Wagner’s toys and manuals, but any others which it may procure elsewhere. We have no right to assume, because the defendant allows Wagner to have the chief conduct of the defense, that it has abandoned all rights, except that of getting the toys and manuals from him. While we do not hold that the decree is an estoppel, taken strictly, even as to those toys and manuals, we may even suppose that, Wagner having now intervened, it is such. Still it would malee no difference in the result of this motion, unless the issues here litigated were coextensive with the issues litigated in the Ohio suit.

[2] At best the rule in Mast, Foos & Co. v. Stover Mfg. Co., supra, is limited to those cases in which tire court can see that the whole issues can be disposed of at once without injustice to the parties. Whatever may be the result here, it is apparent that the case involves more than can be so decided.

The motion is denied.