#### OLIVER H. P. CHAMPLIN and AMELIA T. CHAMPLIN, Respondents, *v.*THOMAS STODDARD, Appellant, Impleaded, etc.

*Damages*— measure *of, in an action for the unlawful sale of articles in violation of the plaintiff s’ exclusive right to make a/nd sell them.*

This aetion was brought to recover the damages sustained by the plaintiffs by reason of the unlawful manufacture and sale hy the defendant of a cosmetic, the right to manufacture and sell which belonged to the plaintiffs. The referee allowed the plaintiffs to recover as damages the amount received hy the defendant upon the sales made hy him, less the amount which it would have cost the plaintiffs to make and vend the quantity of the cosmetic so sold. It appeared that the plaintiffs were prepared and able to make and sell this quantity, in addition to what they did actually sell.

' *Held,*that the defendant could not complain of the measure of damages adopted by the referee.

The -question as to what proof of the defendant’s participation in the compounding and selling of the cosmetic was sufficient 'to sustain the action, considered.

Appeal from an interlocutory judgment entered herein, adjudging that tbe defendant Thomas Stoddard had infringed upon the right and title of tbe plaintiffs to make and vend a certain cosmetic known as “ Champlin’s Liquid Pearl,” and ordering a reference to ascertain tbe amount of tbe damages sustained by tbe plaintiffs by reason of sncb infringement, and also from an order of tbe Special Term overruling tbe defendant’s exceptions to tbe report of the *110referee, and confirming such report, and also from tbe final judgment herein for tbe recovery of tbe damages reported by the referee.

*Norris Morey,*for tbe appellant.

*James A. Allen,*for tbe respondents.

Smith, P. J.:

Tbe argument of the learned counsel for tbe appellant is directed mainly to the measure of damages adopted by tbe referee, and to tbe amount of damages wbicb be has awarded.

the finding of the referee as to the amount of sales made by the appellant is challenged on the ground that it is not warranted by the evidence, the contention on the part of the appellant being that such sales were made, not by the appellant, but by the firm of *“*Stoddart Brothers,” on account of diaries Stoddart alone. the appellant and Charles Stoddart were brothers and they composed the said firm of “Stoddart Brothers.” the referee, in bolding that the sales made at the place of business of the firm were made by the appellant, merely followed the adjudication of the. court at Special Term, and that adjudication was fully warranted by the evidence, which tended to show that the appellant (who, by his contract with the plaintiff, was bound not to manufacture or vend the cosmetic in question, the formula for the preparation of wbicb was a secr.et of trade which be bad sold to the plaintiffs for a valuable consideration) took part in the compounding, bottling and labeling of the cosmetic made at the store of said firm, and in shipping the same. The cosmetic so made and put upon the market by bis agency being an infringement of the plaintiffs’ rights, *the*appellant was none the less liable for the damages to the plaintiffs resulting therefrom, because be associated bis brother with himself in the enterprise, and assumed to carry on the business in the name of the firm, on bis brother’s account.

Tbe measure of damages adopted by the referee, we think, is one of wbicb the appellant can not complain. It was tbe price realized by tbe appellant from bis sales, less what it would have cost the plaintiffs to make and vend tbe quantity sold by tbe appellant. Tbe referee found, upon sufficient evidence, that the plaintiffs were prepared and able to have sold tbe same quantity, in addition to *111what they did sell, during the same period. The evidence shows very clearly that the defendant’s sales were made largely in places where the plaintiffs had an established market which they had built up by extensive advertising, the defendant’s sales being at a reduced price, and in great part to persons who had been customers of the plaintiffs. The case seems analogous to that of an infringement upon a patent, so far as the measure' of damages is concerned. In patent cases, where the plaintiff may reasonably and fairly be said to have possessed the facilities for making the sales which were made by the defendant, the rule of damages against the infringer is the difference between what the quantity of the article sold by the defendant would have cost the plaintiff to produce and sell, and the sum which, at the current prices at which the plaintiff sold his manufactures, he would have realized for the infringing goods disposed of by the defendant. *(Bigelow Carpet Co.*v. *Dobson,*10 Fed. R., 385; *American Saw Company*v. *Emerson,*8 id., 806; *Buck*v. *Hermance,*1 Blatch. R., 398, 406.) Applying this principle to the case, it follows that the plaintiffs have not recovered more than they are entitled to.

Mr. Justice Barker, in his opinion at Special Term, on overruling the defendant’s exceptions to the referee’s report, also likened the ease to an action brought for a breach of an agreement not to engage in a certain kind of business at a particular place for a specified number of years, and in analogy to those eases he upheld the rule of damages adopted by the referee. Ve concur in his conclusion on that point. He cited the cases of *Doyle*v. *Dixon*(97 Mass., 208), and *Marsh*v. *Billings*(7 Cush., 322).

It was not error to allow proof of the advertising done by the plaintiffs. It was competent for the purpose of showing what they had done by way of establishing a market in sections of the country where the defendant subsequently made sales.

*~We*think the judgment and order appealed from should be-affirmed, with costs to the respondents.

Bradley and Corlbtt, JJ., concurred; Barker, J., not sitting,

Judgment and order affirmed, wi th costs.