Butterick Publishing Co. v. Rose
Butterick Publishing Co. v. Rose
Opinion of the Court
1. The appellant contends that the contract sued on is void because of uncertainty as to the quantity which he should purchase and the price which he should pay for the goods bought thereunder. This court cannot say as a matter
2. Appellant next contends that the contract is void for want of mutuality. In support of such claim it is urged that the plaintiff is seeking by injunction to enforce the negative covenant in the contract not to sell the goods of other manufacturers, that specific performance could not be enforced by defendant should plaintiff refuse to perform, and that unless there is mutuality of remedy- as well as of obligation equity will not interfere. It has already been said that there is mutuality of obligation under this contract. It is not necessary that there should also be mutuality of remedy in order to enable the plaintiff to enforce such,a negative covenant as is found in the contract sued on. It is so held in a case involving the same contract as is here involved, except that the pur^ chaser was different. Butterick P. Co. v. Fisher, 203 Mass. 122, 89 N. E. 189. And in reference to contracts identical in form with the one sued on. Standard F. Co. v. Ostrom, 16 App. Div. 220, 44 N. Y. Supp. 666, and Standard F. Co. v. Siegel-Cooper Co. 30 App. Div. 564, 52 N. Y. Supp. 433, affirmed on appeal, 157 N. Y. 60, 51 N. E. 408. And in reference to contracts involving the same principle. Popes
3. It is next contended that the contract is in restraint of trade and that it therefore violates the provisions of sec. 1770g, Stats. (Laws of 1905, ch. 506, sec. 2), and is void. While, under the patent laws, a patent creates a monopoly, it is not a monopoly of what existed before and belonged to others, which is the true idea of a monopoly, but it is a monopoly of what did not exist before and what belongs to the patentee. In consequence it does not create an odious monopoly, and the rights of patentees thereunder are to be liberally construed. 30 Cyc. 816, and cases cited. The patentee of an article may sell it to whom he pleases or may refuse to sell it at all. He may stipulate the retail price at which the purchaser from him may sell the article, and may lawfully obligate a special agent appointed by him to sell his article to the exclusion of other articles of a like character. Edison P. Co. v. Kaufmann, 105 Fed. 960; Edison P. Co. v. Pike, 116 Fed. 863; National P. Co. v. Schlegel, 117 Fed. 624; Victor T. M. Co. v. The Fair, 123 Fed. 424. We do not think that the legislature intended to extend the provisions of sec. 177 Op to contracts made in reference to the sale of a patented article. If it did attempt to restrict the rights which a patentee acquires under the constitution and laws of the United States, the legislation could not be upheld. United States C. S. R. Co. v. Griffin & S. Co. 126 Fed. 364; Bement v. Nat. H. Co. 186 U. S. 70, 22 Sup. Ct. 747. The constitution and all laws made in pursuance thereof constitute the supreme law of
4. It is next urged upon us that the action is not maintainable because the plaintiff has an adequate remedy by an action at law to recover the damages sustained by reason of the-breach of the contract. From a practical standpoint it would be impossible to measure the damage which plaintiff might sustain by reason of the defendant advertising patterns made-by a rival company that was a competitor of plaintiff. So, too, the loss which plaintiff might sustain by reason of the defendant selling other makes of patterns would be most difficult of ascertainment, if it could be shown at all with sufficient certainty to be made the basis of a claim for damages. The-objection that there is an adequate remedy at law will not defeat a suit in equity, unless the legal remedy is as- adequate, comprehensive, and effectual as that afforded by a court of equity. Lawson v. Menasha W. Co. 59 Wis. 393, 397, 18 N. W. 440. An injury will be enjoined as irreparable if its nature be such that it cannot be adequately compensated in damages or cannot be measured by any .certain pecuniary standard. Wilson v. Mineral Point, 39 Wis. 160, 164; Eau Claire W. Co. v. Eau Claire, 127 Wis. 154, 159, 106 N. W. 679.
5. Lastly it is argued that the real remedy sought to be enforced amounts to an attempt to compel the defendant, by indirection, to perform an executory contract calling for personal services, and the case of Chain B. Co. v. Von Spreckel-.sen, 117 Wis. 106, 94 N. W. 78, is- cited to show'that such an action will not lie. This court is called upon to say whether
By the Court. — Order affirmed.
Reference
- Full Case Name
- Butterick Publishing Company v. Rose
- Cited By
- 13 cases
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- Syllabus
- •Contracts: Construction: Certainty: Implied covenants: Injunction against violation: Mutuality of remedy: Restraint of trade: Monopolies: Controlling prices: Patented, articles: Adequate remedy at law: Pleading: Demurrer. .1. A contract by which plaintiff made the defendant its agent for the sale of patterns and agreed to sell and deliver patterns to him at fifty per cent, of the retail price, and defendant agreed to keep on hand patterns to a certain amount at fifty per cent, of the retail price and not to sell them except at “label prices,” indicates that the retail price is stamped on each pattern and is not uncertain as to the quantity which defendant is to purchase or as to the price he is to pay therefor. 2. In such a contract there is an implied covenant on the part of plaintiff to furnish such patterns, to the amount named, as defendant may select out of plaintiff’s stock. ■3. There being mutuality of obligation in a contract of agency for the sale of certain- goods, a covenant therein by the agent not to . sell like goods of other manufacturers may be enforced by injunction, even though specific performance of the covenants of the other party could not be enforced, — mutuality of remedy not being necessary in such case. 4. The patentee of an article may sell it to whom he pleases or may refuse to sell it at all; he may by contract with purchasers from him fix the retail price at which they may sell the article, and may lawfully stipulate that sales agents appointed by him shall not sell other articles of a like character. 5. Sec. 1770g, Stats. (Laws of 1905, ch. 506, sec. 2), does not apply to contracts relating to the sale of a patented article. 6. State legislation restricting the rights which a patentee acquires ■ under the constitution and laws of the United States is invalid. 7. Violation of a contract by which an agent for the sale of plaintiff’s patterns agreed not to sell the patterns of any other makers may be restrained by injunction, — the remedy at law not being adequate because of the difficulty or impossibility of measuring the damages. 8. Where a complaint states a cause of action to restrain defendant from advertising and selling the patterns of other makers in violation of a contract with plaintiff, a general demurrer thereto cannot be sustained on the ground that plaintiff is indirectly endeavoring to compel «defendant to perform an executory contract calling for personal services in the sale of plaintiffs patterns.