280 F. 238 | W.D.N.Y. | 1922
A brief statement of the claims of the parties arising from conflicting versions will suffice for the purpose, of the decision that it is thought proper to make herein. The plaintiff
The defendant denies that he bought the cigarettes under any restrictive covenant as to resale by him, and disclaims being aware of any understanding with relation thereto between plaintiff and the Volga Company, and indeed, on the contrary, asserts that he bought the cigarettes without anything being said as to any restriction on resale, except that he was told that they were shipped to Copenhagen for the express purpose of enabling plaintiff, or the Volga Company, to avail itself of the right to have remitted the internal revenue taxes that had been paid for the government stamps upon the individual packages, and that shipment to a foreign port was required to procure remission or draw back. He is claimed to be corroborated by the witnesses Bondy, who acted as his counsel in the negotiations for the purchase of the cigarettes, and Solomon, who was his broker, both of whom testify that the cigarettes were sold without any restrictions as to resale, or as to the right to bring them back to the United States for consumption; both testifying to their understanding that the goods were exported merely to obtain a landing certificate and to procure a drawback of revenue taxes. There are other affidavits for defendant which appear to inferentially support the claim that the purchase was made, unaccompanied by any restrictive agreement as to reimportation and resales in the United States. Tetters, too, are in evidence passing between defendant and the Volga Company, and other letters and replies thereto, from which conflicting inferences may be drawn.
Plaintiff’s claim is that its only purpose in selling the cigarettes was that they had become dry, stale, and inferior, and were not up to the standard of the Helmar brand sold by it in the markets of the United States; that because of their deteriorated condition it sold them under restriction as to place of sale at the price of only 7 cents per thousand, excluding the drawback of $3 per thousand, which would be paid on receiving a landing certificate of the arrival of the cigarettes in a foreign country. The export price for cigarettes in good condition was $7.65 per thousand, and for domestic trade $10.14 per thousand. The defendant paid the Volga Company $1.75 per thousand, or a total of $20,791.45. One million of the cigarettes have been imported into
To enjoin the defendant from reimporting the cigarettes and selling them in the United States may, it is true, also be of great damage to him. If he purchased them without any covenant of restrictive sale or reasonable notice thereof, then his disposal of them should not be hindered or delayed to his detriment. But any damages that may result to him by reason of the preliminary injunction may, I think, be ascertained and measured while on the other hand the damages and injury to plaintiff from violation of the covenant may be irreparable. Hence, without deeming it necessary to further or more fully pass upon the yarious questions of law submitted in the briefs, I determine and decide that a preliminary injunction issue only upon plaintiff filing an undertaking or bond conditional to fully indemnify the defendant for the costs and damages that he may sustain by reason of the restraining order entered herein.
Sq ordered.