The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-06-26
keep an account nnder bis lioenseno. Cha. 10 das.

lot scamp ms EoOus hccoIuEg TO the iicerscbut il
eosily and expressly oxcepts from the PRAYER Of
he bill aud The comp ,int of tho party, every
in tho world hat what he has done outsi DO of his IL
osnse and therefore repeat that ii is beyond any
tToveisy whatever, then bill for the specific
Performance Of the ant contained on page As
&c the defendant record and of nothing cleo in the
weird. Now, then, turning back from that covenant
10 page of the plsntfs bill, your honor will fad
that they ask thet The defendant may Tor his
count OF tho articles made, &C. except whete such
India rubber made under the l,coEso-thai is TO
SAY. here Is clement with half dozen covenants
~ Dry one hat he will keep account books: another
that be would do nathing outside his license
Their that Lie will stomp his goods with Goojyear's
name &c, SSa. And, then, they sue him not
for anything about the tsfiff-not FOR falling 10
stamp the go.ds-not for keeping no account books
they ssk him not tor an account OF anything he
does under tie license, and ] speak advisei'y bl.
they desert oil that and 60 straight md square 10
ap inquiry into account of what he does outside
the license, proceeding maniiestly and fully upon
the covenant. ard there ge are. May il please
your honOrs. j; this is to b. turned into aud
treated = bill for specific performance, is there
any longer any fxity of meaning to language?
Here upon bill for the specific performance
of that ono single covenant. Now, | ak your
hcnos if IT can be pretended for in instant, upon
the fuo's, that bill for specific performance like
that, cGp be maintained on the evidence before this
court. Resorupg, then, to the terms of the cove
nant on which they proceed to try this case, the
Court will discern that it is a covenant while Good
years protects Day in tho exclusive right to Eanu-
ture anything but shired goods, except what no is
licensed by Good ear TO do. IL co yonapts that
while Goodyear protects him in the exclusive right
TO Manufacture SHRED goods, no will nanutic-
ture any other articles tnan he is licensed by Good
year 10 do and now the question s, whetherup, that
covenant the plaintiff can maintain his claim. i
need not say il is incumbent the plaintiff to shoy
that he has protected Day exactly and subst.n-
TALLY. While he protects Day. Day shall not do
any thing he s not licensed to do. They complain
that he has done something that he was not licensed
to do. Ofcourse, then, it is incumbent in them to
aver and prove that he has, during period
while Day has invaded his branch Of manufactures.
he has protected Day in tho manufacture and sell
ing of shrred goods. Now, does the plaintiff in his
bill aver any such thing ms that! Not word oi it.
OF course, he cannot offer any proof that he has
done it, for he cannot offer proof of anything he has
not averred On the contrary. the defendant
denies it explicitly while the plaintiff meets
the denial without murmur and without proof.
81 sue you," says be, ION covenant by which you
agreed TO manufacture nothing but shired goods, If
] would protect you in that manufacture by all
my power. But forget to aver, and totally fail
ycpwith manufacturing out OF your License, and
too fail to protect yOu Let us look at the evi-
oence of tho facts little, Concerning bill for the
specific performance of such contract this. In
the first place, then, it is concusively established,
that the puintf did not protect the defendant in
bis branch of the manufacture. There is an end of
the plaintiffs bill am trying my client to some
extent as we'll as his case And when regard the
spirit in which this bill was drawn, and the general
courtesy of manner in which my learned opponent
opened upon my client, shall not unless am I'D
monished by your honors. deprive Mr.. Day of the
privilege Of exposing to this bench the equities Of
this case, and all the facts upon which they
based. They sue him because he has brokon a cove
nant; that while they protected him no would not
mar ufacture out of his license. They do not
that they protected him; they do not prove it, In
TIE first place it is concusvely established by YER
dict and judgement that down to tho first OF Janu-
airy, 1919. two years and three four months,
ny hN "a n m 10
tion contemplated by the covenant for which we paid
him $1,000, and for which alone we bound ourselves
not to tansgress the limit of the license; not par
tice of protection fer two years and four months.
Your honor is too familiar with this point to be
fered even TO the record. The issue upon the
seventh plea was directly upon the allegation that
be had not protected bin, and the jury found, of
course, shat from 1886 to the institution of the suit
which was the first Of January, lSi9, that he had
not protected him. That would seem to be an end
The time has been, ''when the brains out the
this point little further What should the plaintiff
alegcin such posture Of facts as that! Should he
not least aver that down to the first of January,
lSi9 he had not afforded the stipulated projections,
but TINT after that time he woke up suddenly to
Of his duty to protect-and should he not try
TO prove it, Has he made au averment of any such
protection! Certainly not. Then he cannot Of
tsr a particle Of proof, ii he had volume of it.
Sumption Of evidence, take it, may Il please yonr
bonors Is that state of things that has lasted for
shown, That verdict, therefore. remains unencoun.
Tered by anv particle of evidence This court has
before il competent aud sufficient evidence that,
down TO this hour. the plaintiff in this case has not
afforded particle of protection for which we
stIula ,ed, before the LIST of January, after the
Ist of January. But it docs not rest there if your
honors please for in the next place, does not that
verdict 90 u good deal deeper than this! The court
AYERS that tie verdict on tho seventh issue fiods,
not merely that Goodyear did not protect, but con-
nytd at the airngements OF other persons with Mr..
Da. business If the court will allow me TO turn
to the 74th rnge Of the Record and to call their at
tenton TO the seventh Plea they win find it con-
cludes that an issue is taken upon it, aud then the
defendant says, protect this defendant, &c. And
on that issue the jury affirm til truth of the plea.
If then, it be successfully established, not merely
that MIR. Goodyear has not protected tho defendant
in bis case, hat ccnnived ut the commission of in
fling mens aimed and pointed a. Mr.. Day, then i
lave - ask tie court whether the third covenant
contained in Goodyear's original settlement with
Mr. Dsy, has or has not been broken on his part. If
il has been il goes q great deal deeper than
discharge from covenant 70 protect, for ii dis
charges every one OF the covenants in the settle
nent from beginning TO end The language Of
that covenant i thisthat ''said Goodyear will not
hereafter gran. any right, license, or agreement"
&c Now. K the jury have affirmed that be did
conzye ut tho manufacture of these goods by other
persons il violation Of bis duty to protect it is for
scur nonols TO say OF this agreement, in this third
covenant, that be shall by 10 agreement, assuming
tie manly foim OF a Greet covenant ca tho ono
haE6, or sEealiinr under the denomination Of cove
naTtf az tie other, that he will by no means aid
ahot {. far in him lies, permit anybody TO IN
ietfero with Mr. Day in the exclusive monopoly of
the tice which ii was the object OF one party to
ell, md the other party 70 buy. submit, without
co,g step further OH the mere verdict OF tho jury
that Il is ft your houors 20 say wheherthat not
bc the end Of the case. do notEuow that may not
be ea@ Chat action may have been taken on demurrer
] will depl frankly with the Court. will not say
bot that have TO show whether or not the plea is
double, snd issue is taken Oh the whole, which
mikes double avclmcnt, and whether there is an
cstoIel OF both averments. However that may be,
70 80, the evidence, GOOD way hey ond this.
understand the argument ri the learned counsel TO
lo, that though Goodyear Inoy not have afforded
protection TO Day down to the Jst Of January. iSi9
that still II. lie has afforded him protection since
that time, Day covenant is still binding shall
hereafter inquire. if your donors please whether
not in point Of tact, Mr. Goodyear has afforded tho
least protection to Mr. Day; but an now about to
nrllx suhmii t--aul