Victor Talking Mach. Co. v. Straus

225 F. 535 | 2d Cir. | 1915

LACOMBE, Circuit Judge.

Many questions are presented which need not be now discussed, .because there is lacking in the complaint an allegation which seems to us essential to complainant’s prayer for relief.

Whether the various documents evidence a lease of each machine for a stated period, with privilege to- the lessee at the end of such period to take full title provided he has complied with the conditions of the lease, as to use solely of complainant’s needles, records, etc., or whether it be a conditional sale need not be decided. It seems clear that if the license to use one of these machines on the named conditions has passed from complainant through its distributors or dealers to one of the public, who has paid the full list price for the same, the person who has thus acquired license to use in accordance with the specified conditions may assign such license to any other member of the public, who by such assignment will himself obtain the right to use in accordance with the specified conditions. We are not satisfied that there is any obligation on the-part of any one member of the public who thus assigns his lease, or whatever it may be, to another member of" the public, to exact any particular sum from the latter as a consideration for the transfer. We do not see why he may not give the lease to whomever he pleases for no consideration at all, as a free gift, provided he has not himself violated any of the conditions, and turns the machine over with the license label or other company marks affixed to the machine intact and unaltered, so that his assignee may be fully advised of the conditions under which use of the machine is licensed.

It is manifest from the complaint that defendants’ firm is not a “distributor,” nor is it one of the 7,000 licensed “dealers” referred to therein. Therefore defendant is one member of the public, and if it has paid the $200, or whatever may be the list price of any particular instrument now in its possession, it could not be enjoined, assuming all complainant’s contentions as to the effect of the documents set forth are correct, from parting with possession to another member of the public upon the original conditions as to use. From the brief and argument we infer that injunctive relief is sought upon the theory that defendants’ firm has obtained possession of some of complainant’s machines by paying less than the list price and is proposing to dispose of the same for less than such price. But the complaint contains no allegation which specifically charges that defendant has any machine in its possession for which it did not pay the full list price. In the absence of such allegation, the whole theory of complainant as to the status of a member of the public who has obtained possession of a machine from a distributor or licensed dealer, without paying therefor the full list price, becomes academic.

The decree is affirmed, hut with instructions to allow complainant to amend its bill, if it be so advised