51 F. 446 | N.D. Cal. | 1892
The patented device was invented by one Robb, and is one for shifting the saws and simultaneously raising the top feed rolls of a machine used in sawmills called an “edger.” The device does not form the whole machine, but it is the essential feature; makes the merit of the new one, and the edger has no value or use without it,—is not salable without it. The case of Yale Lock Manufg Co. v. Sargent, 117 U. S. 536, 6 Sup. Ct. Rep. 934, applies, and damages must be adjudged on the basis of the entire edger. What are the damages? Hie complainants were the owners of the patent, and reserved to themselves the right of manufacture and sale. The measure of damages therefore is either the profits they would have made but for the infringing sales, together with the reduction of price on their own sales, or the profits that the respondents made. There was no reduction in the prices of their own sales. These were maintained. To enable complainants to recover their rate of profit on respondents’ sales involves the two conditions that they had the ability to and would have sold their machine to the purchasers who bought of respondents. The first condition is established; the second, the master said, “does not so clearly appear.” He infers it, however, from the testimony of a Mr. Smiley, a witness and employe of complainants, whom he quotes as follows: “I know that people haven't bought from us on account of our high prices, as they have said, and they placed the order with Spaulding,” (meaning respondents.) This is a positive assertion that complainants lost sales by the competition of respondents, but its positiveness is abated on further examination, and the statement shown to be based on conjecture, and, so far as it asserts sales to customers of complainants, a mistake. In explanation of what he meant by lost sales, he said that parties made inquiries at complainants’ store, hut were deterred from purchasing by the high prices, saying “they could do better.” Though claiming a good memory,—so good that it was appealed to in cases of doubt by his fellow clerks,—he was only able to remember one instance of this. One of whom he called the Korbell Bros.,—which one he did not remember,—told him that he had bought an edger of Spaulding, and the witness concluded by saying “ that an examination of Mr. Spaulding’s books will prove that 1 am
