The Edison phonograph monthly (Mar 1903-Feb 1904)

EDISON PHONOGRAPH MONTHLY. IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. Edison Phonograph Company, Complainant, v. The Wittmann Company, Respondent. No. ioi, V. Memorandum Opinion. Munger, D. J. This is an action brought by complainant to restrain the respondent from disposing of certain phonographs having the serial number placed thereon erased or obliterated. The petition is framed upon the theory that the obliterating of the serial number is an infringement of complainant's patent. There does not appear to have been any contract between complainant and respondent. The articles in question were purchased by respondent from other dealers or jobbers, but it appears from the evidence that respondent was aware of the provisions of the contracts under which the machines were placed upon the market for use and sale. The objection of respondent to the introduction in evidence of the alleged contract between the Omaha Bicycle Company and respondent, on the ground that no foundation for the same existed, is sustained, and such contract has not received consideration. There was placed upon each machine a plate, having plainly and distinctly engraved thereon, among other words, the following: This machine is sold upon the condition that it is licensed to be used or vended only so long as this serial number S is not removed or changed in whole or in part." It is alleged that the serial numbers have been obliterated, and it is charged that such obliteration was done by respondent. That these serial numbers were obliterated and that it was done by respondent is not denied, but it is claimed that such act does not constitute an infringement, and as there was no contract between complainant and respondent, the action cannot be maintained. The Court of Appeals of this Circuit in Dickerson v. Tinling, 84 Fed. 192-195, with reference to the sale of a patented article upon conditions, uses this language : " If the corporation sold the patented article subject to such a restriction, the purchasers, with notice of this limitation, whether immediate or remote, could acquire no better right than strangers to infringe upon the monopoly secured by the patent." This, in effect, is a holding that the owner of a patented article may, in disposing of the same, impose such conditions as he sees fit, and a violation of those conditions upon the part of any subsequent owner, with notice thereof, would be an infringement of the patent. Such seems to be the law as announced in Edison Phonograph Company v. Pike, 116 Fed. 893. For these reasons the injunction, as prayed, will be granted, upon complainant executing to respondent a bond to be approved by the Clerk of the Court, conditioned as provided by law, in the sum of $5,000 ; such bond to be given within ten days. IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. National Phonograph Company, Complainant, v. The Wittmann Company, Respondent. No. 97, V. Memorandum Opinion. Munger, D.J. This is an application to enjoin the respondent from disposing of certain phonographs and records in violation of a contract between complainant and respondent. The provisions of the contract material to the consideration in this inquiry are in substance that the Company will not sell said articles at less than the price stated in said contract ; and it is charged in the bill and established by the evidence that the respondent has violated the contract in this respect by making sales in violation of the agreement. This is sought to be justified on the part of respondent on the ground that complainant first violated the terms of the contract, which violation on the part of complainant absolved the respondent from being further bound by the contract ; or, to be stated in another way, that complainant, in asking equity must do equity, and that, having first violated the contract it is not in a situation to ask for the aid of a court of equity. It is clear from the authorities, I think, that com plainant is entitled to the relief asked under the terms of the contract, unless it shall appear that the contract was first violated upon the part of complainant, and that by reason thereof complainant cannot invoke the aid of a court of equity for its enforcement in the respect sought in this action. I have carefully read the various affidavits and correspondence offered in evidence, and am not satisfied that respondent has shown a breach of the contract upon the part of complainant. Respondent's claim is that their contract gave them the exclusive right as jobbers within certain territory for a certain period of time, and that complainant violated this provision of the contract by furnishing the articles to other jobbers within such territory. As stated, I am unable to find from the evidence offered that complainant did give to respondent the exclusive right to job the machines within the territory designated. Such being the case, a temporary order of injunction will be granted as prayed, upon complainant executing to respondent a bond to be approved by the Clerk of the Court, with the usual conditions, in the sum of $5,000 ; such bond to be given within ten days. AnONG THE JOBBERS. THE MacGowan Cycle Company, of New Haven, Conn., has been succeeded by the Pardee-Ellenberger Company. The Ray Company now has stores in fourteen cities. The Bauland Company, at Fulton and Duffield streets, Brooklyn, has been sucqeeded by Chapman & Co. The Pittsburg Phonograph Co. has removed to 937 Liberty avenue, Pittsburg. The Theo. F. Bentel Co., of Pittsburg, is now located at 433 Wood street. The Ray Company branch at Cincinnati has removed from 308 Walnut street to 143 W. 5th street, and the Ray Company branch at Nashville has moved from 606 Church street to 30 The Arcade. OUR PHONOGRAPH HAND=BOOK. SINCE the reduction in the price of the Handbook of the Phonograph from seventy-five cents to fifty we have had an increased demand for it. We still have a supply on hand and can fill trade orders for it. The book contains 180 pages of information and ninety illustrations about the Phonograph, Record making and kindred topics. It is bound in buckram, with board covers. WILLIE WISELY'S WAY. Mrs. Wisely — John, I was just reading about a man who traded his wife for a phonograph. Now isn't that horrible ? Mr. Wisely— Not at all, Mary ; a phonograph will not talk without winding. He knew his business. — TV. Y. Eveni7ig Sun.