The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-06-26

another and interpret u a., upon the whole, bill
for an injunction az Ainst an Infringement; and thof
they say against oil these considerations Tho SET
Element ITSELF pleaded and proved, estops you from
the privilege pertaining to everybody else-a trial
OF the validity Of tho patent which you thus aiiegc
to infringe on a previous patent for the samo ia
brio" To that very general view, may IL please
your hOnors, have only one or two more words to
say, and then shall be very nearly ready TO relieve
the patience of the Court. Before pass from this
matter of the single covenant, will repeat in ~
single view what have before said in regard TO IL,
and that isl think upon their own exhibition Of
evidence, and upon NIL the circumstances, it is very
manifest that Mr.. Day went into the settlement in
good faith and with an intent to stand by IL. lido
not lay my finger upon a scintilla OF evidence OF
mental reservation not to keep it to than the
letter Of itnot to keep it to the very spirit Of the
agreement. They themselves read no such evil
dence--or, at least, only such irrelevant matter
as this:--lt appears that immediately after the
settlement, Day united with Goodyear in an
advertisement-probably not expressing his own
private opinion, probably still retaining n doubt
that Goodyear was the original and tirst in
vcntor--but by the appropriateness of his
representations, and the array OF his proofs,
he had brought Mr.. Day to the conclusion that il
would be better to adjust blond his interests and
objects with Goodyears, and thersupon they united
IN an advertisement, which may, or not, DO pretty
strong in its terms for advertisement, expressing
the mutual will and interest Of the new friends. /
think the last thing in the world that should be
objected against Mr. Day. They say he did not
stamp his goods FROM the start, according to the
contract; but we attended with the proof that
he did so stamp his goods and the evidence, relied
on by my brother in his opening, was entirely mis-
taken. From the moment the agreement was made,
Mr. Day himself complied with all its requirements.
and this stamping OF his goods among thom, and
they show not one single proof OF nidclity to it,
until he found that the object Tor which no had paid
his S5.C00-tbat is to say, what thoy call mono
poly. IT they pease-was a failure. think your
holors will find that down to comparatively late
period, Mr.. Day was sensitive and mnnly upon the
account for the fact that, finding his business on
suspenders broken down, Mr. Day applied himself
to another form Of corrugated goods, before he
willing to pass out OF the limits OF his license
He intended to abide by the adjustment, and
did so until ho began to remark the ha-
grant breaches and violations of it on the
other side. Then at last he rcpudiated it. They
compare this broken agreement TO the case ola Ind
lord and tenant | should be very glad to have
them point to anything Mr.. Day did, that would
make the ut all parallel to the supposed of
n violated tense. When he found how fraudulcntly
they were working undoY these liccnscs-how rapid
y they were filling the market. after thcr term of
labor had eypired-when he found that, by that
fraud on him, their competition with him, by means
OF Goodyear failure TO protect him, was beco,ning
absolutely ruinousI should be very glad to 500
them, aiCerhe had been driven into an abandonment
OF tho agreement and into repudiation of his con-
thing that he did to violate his agreement. He has
not got from them single specimen of India rubber
goods to introduce to your honors. lie did not pre-
serve single pair Of suspenders, nor coat nor any
article OF their fabric. lie does not retain ma
chine, any secret of their art, for 1t was known
though the potent 10 every hody. He retains no
sinr whatcTcsfF tn or value whatsoever There is
only to declare that he repudiated tiIo NE had
They liken him, again, to the case OF the
tenant whom they put into exclusive possession
Of the premises, who practices a fraud upon the
landlord, and up battery Of guns against the
PARTY. ! should be very glad 70 have them show
what day Or Saturday evening they gave us cxclu-
s,e possession OF The promises from ihc time of the
settlement. WIN they show US four and twonty
hous Of such posaossion from the third Of October
1876, till TO. day. Win they show rs an hour, or q
half hour. or a hai minute. when they do anything
in spirit and in substance, in iuiil;ment OF the set
tlement. They agreed to SELL and we emptiod our
selves 10 bay When they do that, it will be time
enough TO whether the relation III the landlord
and tenant is utterly futile, and has applica-
ton to the case. When party comes to you, and
pietends that ho has patent right to sell, over
bears you by the pmusbiiity Of KS representations,
and draws \ on il 70 pay him AL YOU are worth for
IL, ard it turns out that hc has only purchased tho
monopoly OF q fraudulent patent, IT will be timc
eiougn then, J say. to inquire whether the lrpnd
H. question: isNpoa the rtsntcc. ~no comes an', re-
ps,sents h.aseI 10 be tl,c owner OF patent wight
which he Goee not losatss. He Stands also in tho
po-i'io', Of 'ai'y who practices /" ira'" - pre-.
.
TIT / iayc -;tii thar il M. ii,y
intr to ;e. j A.s eoscs'eu, aA 10 did 50 IL It
letf,r ald in is i irii iom tie beginning. Now
eci,.n g t. ttai n!crc General 'icT. ] submit thru
tbs i&tli ein 81 ~ 10 esterel. mainly npon tn
arrLu,rs., thpi lie bill ,io.s not piace before tn
ceoit the terra Ut the settlement. which arc alleged
80 n'.f, We t-Iplr. al'l dues 1907 aver taitarc
lect ai co ~ eut IA te,las au'' ~ such erl that
torr Apnur.. Constituting the Cout OF tiancely,
can iakt rnicc 1t t't,Ir existence Al az la other
wo,ds il ihctc i anything now u bu relied upon 10
this particular covciiant by nr. Day that nc viii
at work outside Of his license. if they rely upon
II c covsnau: that he vii, stamp oil bis goods, and
the covenant chat he will keep accounS books. /
viii refer 70 the proof "a wei as to the covenant
themselves. to show that inosinuch as they did not
biirg that settlement before the Court il its terms,
within the frame Of that bill; ,a much they did
not rely on that settlement a. m estopcl. aud
plead the performance Of il On orr part nasiauch
IS they gave my clieht chance ut all t. deny, On
lis oaih tia. they have performed any part Of the
conditions which they undertook to perform, lrcspcct-
fully submit that, on that account. Tie settlement
cannot be employed as an cstopel in this ensc.
] submit, in the NEXT place, that the same general
considerations which ! have been insisting upon,
puts end to ctcry 0f these covenants By their
very terms. and they cease to be 4 matter Of
estopcl. BY the very terms ol these covenants il
is provided, that il Goodyear aids and ahcts, or il
Goodyear in ary way fails c;ectually to protect. or
il he eonnyos with those WHO come into competition
with Mr. Day for the want Of that protection.
every covenant pSo jacic GO Instant. comes to an
md and ceases to be operative. Looking into the
evidence before this Cogi, it is perfectly certain,
that il would not be possible for cgs,y Jury,
Massachusetts jury, or a Pounsy lyania Jury. or n
iuIy anywhere. whore common sense Is recognized
anu Intelligence prevails, TO 6ovise any FORM Of
escape from this last proposition. But, may it
loase your honors il they 50 very strenuous. for
technical law. suppose we treat them to little
technical law and then ! submit that upon all the
authorities II j. perfectly clear, aua has been
settled by line Of from tue third Of James,
when such old common law lawyers rs Kenyon,
Bullock Ihesaingcr, and other lawyers, who illus
iratcd and made respectable the dccliniog period Of
the Old common law, down 10 this hoer. by q
universal and concurrent course ii decisions
ard submit thai according TO these authorities
There is not covenant in this llpcr, from begin
hing to ord, which would not be brought as an es-
toTel upon Goodyear, Tor Day performed his cove
matt Of he did nothing. submit that the authori-
tics are entirely consistent. aud although should
lie sorry to stand here and defend Mr.. Day upon
such technicatics a. tLis, when he be defended
On such grounds as master can stand upon: yet,
il deserving all the equities they pretend 60 have in
la lh,.t, r1I nm "