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


protected. TO DO snd foroed HIM into another; thsro-
fare. cay, that the ELECT Of It is, after thu inssc-
rup'io cf two yeuIs aud quarter, wholly to dis
charge Mr. Day from this contract Tho language
is Tint While Day Is protected he shall do nsthiny
else but ths--tbat is, while be is continually mo-
teoed by protection beginning at the first, or
within reasonable time after making the agroe-
nent: protection steadily, efeotually, and ooa-
Tn ualiy eniorced-I OF protection withheld tl ha
Is driven from the market. and compelled the best
va! he can TO inc anathsr end then, ally, o.
pticousiy aud nsrm.ttrrlJ resumed; and thus drive
BIN backward aud forward, this year ia thing.
suu next Year in another thing, ut the sale viii aud
pleasure of Goodyear himself Now think that
shs construction Is aided, not to say couciusiyely
Ioceo upon US, ~ u settled doctrine relating TO
matters oil tprciho peror mapcs-for example, il isa
familiar doctrine, that f there is ary upf,irnc1s or
neglect or aches on the part of plaintiff he shall
not have the extraordinary aid of Court of Chm.
Gerry 20 compel the performance OF his own sds Of q
covenant ARD ngain II there has been change ,
OF circumstances, arising from any cause OR IL aris
ing from the conduct OF the plaintiff himself there
has been great change in tho circumstances Of the
parties, after the contract was originally ade and
before the time ~her he applied TO Court of Chan
Gerry 10 compel its performance, he must submit his
case 10 un action at law to recover damages. Itako
it, therefore for granted. if the fact turns out to be
established, and am about to sec whether or
not IL il established by the evidence that in oonse-
queDce Of this want of protection Mr. Day, who, at
the time the settlement was made. doing pros.
porous business in which he sought to be protected
ard secured by tho contract itself, was within tue
time o. which the verdict in this extends tho
Sent protection that is to say, before the first of
January, 1879 completely driven from that employ
mont, add compelled TO abandon it if he had been
hunted from the Stnto OF his adoption, and com
peiied to adopt another FOR the first time in his
life. II We show you upon the evidence in the re-
cord, that such was the fact, should hardly think
the learned counsel would coutend that that osve-
nant could again be revived into life. We place
that matter, if your hon0rs please, beyond q par
tiec OF controversy, by TIE evidence we introduce
In the first lace the verdict establishes it. have
heretofore called your attention to the seventh plea,
hut that upon the second plen is an issue the
question whether or not so ruinous competitioo
superveped, that the profits and business Of Mr..
Day were materially impaired and the jury found
what we have here averred to be true and the same
jury established the fact that Goodyear gave him
no manner of protection for two years and quar-
ter; ard the very same jury, on another trial.
established that probable. natural, and material
fact. that for the want of that very protection the
profits of his business nd been materially impaired
but they could not find from the form Of tho con-
tract that he was obliged to abandon that employ
ment and enter another; and am now about to add
to tho proof of the verdict, the evidence upon this
point, by avery brief alluson to it, We shall show
you this, by the testimony Of thirteen witnesses,
though am not about to read even their names-I
will state the result We proved by this body Of
evidence, uncontradicted by one scrap Of proof in
this whole case that this failure TO protect Day,
shown by the jury to last till the lst of January,
lS9. had the effect of fostering ruinous compeh-
ton, which compelled him to abandon the business
of making and vending of this form of shirred or
corrugated goods, and compelled him to withdraw
himself to another branch of the same business.
We equally find, coincdent exactly with the period
of time to which the question refers, this revolution
in his employment-as prosperous and as well con-
Quoted business as a Jerseymnn ever carried on
in his Iife-completely destroy ed and himself en-
teying upon the introductory stages of a new BUSH
ness, driven thereto by the direct consequence Of
Goodycars act. Now. the general result of their
testimony is this THAT, at the time these cove
nants were entered into, Mr. Day was engaged in
the manufacture of that form of shrred or CORFU
gated goods, which we call suspenders; that his
susIenders were the best in the markets that he
knew how to do it well, and was doing it well; that
ii was prosperous and profitable business, aud this
covenant was made to continue him, with the same
success and prosperity, in that employment; that
we find by the verdict, competition sprung up, BY
which large quantities of the same description Of
goods, but wholly inferior in quality, were
brought in ruinous competition into the mar
ket; that his business Immediately began to de-
cline the competition continued to increase, and
that down to about the time when the
Court gave that verdict this want of protection
was continued that ut the commencement of that
suit by Goodyear on his covenant, the original
business was destroyed, and new one was be ginning
10 grow. Now. sir. there are thirteen witnesses
upon your houor's brief whose title to crodence il
undisputed-they found upon pages 10 and 10
Of the brief we have placed in your hands Now,
then, independent Of any direct connivance Of Good
year, independent of any evidence to show whether
been the ground they have been arguing; we aver
failure to establish such protection, (and prove
it by the verdic for such length Of time, and tho
consequences of it SUCH that it becomes inequit
able that that covenant should be revived az inst
bIm by any worthless offer of protection by Good.
year. Even, therefore, il this bin alleged, and if
the case showed, protection. after it was too late,
this Court app,ehcnd, will not allow this
nant to run back. and operate ftfully, and by
interim lance, and so to stop when Goodyear
chooses withholding protection to Day. till Day is
leFishrg, and when be is pretty nearly ready to
die, putting his finger upon his pulse, and letting in
little air and little light, In the form Of pre-
lection and then call on him once more for hi,
yer ant. | submit that he cannot thus play upon
Uay os upon pipe. This would be sonnet hing
worse than the celebrated letter Of DR.. johnson It
would be the patron OF the drowning man who with
holds assistance. unc does not cucumber him with
aid While he il do@ning, but who waits till he is
drowned, ard hestows IL upon him at the Corouer's
inquest Such protection is not stipulated. / am
stll dealing, may it please your honors, with tho
Jtopns't on on the other SIDE. that although there
failure to protect, for two years and quarter,
still they could have proved that after the cxpra
non Of that time, the protection so long forgotten
was continued, then this covenant would como
again to liio and ! have submitted that it is
sholy unreasonable Interpretation of the cove
nant; for, so long neglect OF protection had
changed the position Of Mr. Day, and deprived him
Of what protection was to give, and had driven aim
inr & substitute somewhere else. But have not
quite done with this part Of the case. If mistake
not there view in which this pretended proteo-
ton may be placed before the Court; or rather tho
protection OF the real plaintiffs whom am protty
soon 70 deyeolc, will appear to your honors in q
bold ard striking enormity and deformiiy of injus
tire. Now. in determining whether this failure 70
protec! for such length Of time and after these
copst quences have followed, should, should not,
lreclueo Goodyear from afterwards setting up late
ma ira6equate protection, as reason for reviving
the covenant, whose animation he h I'd temporarily
destroyed. ask your honors 70 tako notice vi one
circumstance Of great importance in the proof and
that il, il the court please that these very
lottors, who thus take advantage Of Goodyoars
want Ct protection. to fill the markets rs tho
licensees Of Goodyear, holding outst landing licenses
Ut the time when be made his covenant, aud whose
oenses he agreed to get up; that after II was az
ranged that they would surrender tho licenses out.
standing and stop working by the first of January,
every of them, in direct and gross fraud the
covenant with Goodyear, md, through Goodyear,
with Day, set to work to manufacture the raw ma
thn fnlric siianr1liana nurinn thn "