294 Mass. 44 | Mass. | 1936
The allegations of the bill, briefly summarized, are these: The plaintiffs, with labor and expense, have developed and perfected a shoe press for resoling shoes without the use of nails, which they have placed upon the market, which has become known as the Russo machine, and for which, through diligent effort and advertising, they
The demurrers of both defendants were rightly overruled. The only ground of demurrer now argued is that the remedy at law is adequate. The gist of the charge is the alleged continuing wrong of Thompson in selling his goods as those of the plaintiffs and the alleged continuing wrong of Thompson and of Lagañas in fraudulently using the Lagañas patent as a shelter for Thompson in injuring the plaintiffs’ business. The bill is not based upon defamation as in Boston Diatite Co. v. Florence Manuf. Co. 114 Mass. 69, but upon continuing injury to the plaintiffs’ property rights by unfair practices. Lawrence Trust Co. v. Sun-American Publishing Co. 245 Mass. 262. Sherry v. Perkins, 147 Mass. 212, 214. Aronson v. Orlov, 228 Mass. 1, 11. Clearly the remedy at law is not adequate. Sum-merfield Co. of Boston v. Prime Furniture Co. 242 Mass. 149, 155. Maytag Co. v. Meadows Manuf. Co. 35 Fed. Rep. (2d) 403, 408.
There was no error in overruling the defendants’ exceptions and in confirming the master’s reports. The master was not required under Rule 90 of the Superior Court (1932)
Recommittal to the master for the reasons set forth in the two motions which were denied, in so far as it would have been proper at all on the grounds there stated, was discretionary with the court. The facts stated in the motions are not shown to have been proved. Koch, petitioner, 225 Mass. 148, 150. Epstein v. Epstein, 287 Mass. 248, 254. Pearson v. Mulloney, 289 Mass. 508, 513.
The findings of the master do not in all respects support the allegations of the bill. Vital findings are in substance these: In August, 1931, Thompson was already manufacturing a press of the general type mentioned in the bill.
The bill should have been dismissed as to Lagañas. There is no finding that he has been guilty of any legal wrong toward the plaintiffs. It does not appear that he knew of any wrongful act of Thompson or that he knew that Thompson acted in bad faith to injure the plaintiffs’ business by the publication of the “warning” and by his claims of infringement. The findings forbid any inference that Lagañas wrongfully joined with Thompson to injure the plaintiffs’ business in the matter of the “warning.” He had a right to publish the “warning” in good faith, under the advice of his attorney, and for the protection of what he believed to be his patent rights. Aronson v. Orlov, 228 Mass. 1, 11. Virtue v. Creamery Package Manuf. Co. 227 U. S. 8. Helfi Co. v. Silvex Co. 274 Fed. Rep. 653, affirmed, 278 Fed. Rep. 613. Alliance Securities Co. v. De Vilbiss Manuf. Co. 41 Fed. Rep. (2d) 668. Flynn & Emrich Co. v. Federal Trade Commission, 52 Fed. Rep. (2d) 836. Inasmuch as he acted in good faith and in the belief that the machine of his licensee Thompson was covered by his patent, he had a right to include in the “warning” a picture of the Thompson machine, even though it resembled the plaintiffs’ machine. There is nothing to support an inference that he now intends to repeat injurious acts in bad faith.
Thompson is in a different position. The plaintiffs’ machine was not patented. Thompson therefore had a right to imitate it, even as to details of form and appearance.
There is no basis for the contention that the plaintiffs do not come into court with clean hands. There is nothing to show that Russo, by reason of his former association with Thompson, learned any secret methods of manufacture or that he had placed himself in any fiduciary relation toward Thompson which would prevent him from using all he knew. It is not found that he was Thompson’s employee. Apparently he bought machines from Thompson outright and resold them on his own account.
It follows that the plaintiffs are entitled to injunctive relief against Thompson. Paragraph 3 of the final decree should, however, be so modified that it shall not apply to machines clearly and adequately marked, so as to indicate
We are not in a position to say that the master's finding as to damages is erroneous. It is plain that he has not reported all the evidence on this point. The defendants did not put themselves- in a position to demand such report as of right in the first instance, and the court finally declined to order any further report. The finding must stand. MacLeod v. Davis, 290 Mass. 335, 338.
The result is that the interlocutory decrees appealed from are affirmed and that the final decree must be modified by dismissing the bill as to the defendant Lagañas with costs to him, by making the other changes hereinbefore mentioned and by dismissing both counterclaims. As so modified, the final decree is affirmed with costs as against the defendant Thompson.
Ordered accordingly.