New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1852-07-03

nm suddenly Ia some sense OF his duty TO protect
-ans should he not try to prove II has ne
made an averment Of any such protection! Ger
tainly not Then ne cannot OFF, PARTICLE OF
proof If he had volume of Il. The answer de-
MES this protection, and the presUmptlon oi eyI-
depcc take IT, may II please your Honors, 49,
TINT state Of things that ha- lasted for TWO wears
end half continues till the contrary u sho"h'-
That yerd Ct, therefore, remains unenconnte'eu
b, any particle of evidence. InI- Court his oeIore
If competent and suffc evlden that, 90 "h 10
tb,, hour the plaintiff in tins case has not Afforded
particle Of protection for which we stlplinted'
before the lst January or aferthe lst at nddry'
But II does not rest Iheie, your HOnOrs please,
| for in the next place, does not that verdict 60
| GOOD deal deeper than this The Court AYERS that
the verdict on the seventh issue hnfs, not merely
that Goodyear did not protect, but connIvedat tne
! i1iripgements Of o her persons with MI oay
busiuess If the Court will allow me 10 turn 10 ne
| 14th mage of the Record and to call their atten-
| from 70 the seventh plea they will mud It con-
| cludes that an issue j. tax, n upon It, and tl'n
! the defendant says, protect TINS drtn"hhu'
| &c. And on that issue the jury alhfm the Iruth
OF the plea. II, then, it be successfully e'tao-
| Lshed not merely that Mr.. DOOdy-ar has not pro-
tected tie d.t,niaut in this case, bat cOnnyed At
tLe ron mission ofinfringements AIMED aud pOlnfed
| ,t Air DAY then have to ask tue Court Whe-
| tber the third covenant contained IN Ooodyear
original settlement with Mr. Day, has or mas
| not been broken on his part. II II mas peeh IL
| goes great deal deeper than mere discharge
| from n covenant to protect, for IL discharges
| evetv one Of the covenants in the settlement
| from be, inning TO end. The language oil
| that covenant i this-that said Goodyear will
| not hereafter grant ANY right license. or agree
| ment " &c. Now, # the jury have aiii'n mat
| he did couLNe at the manufacture ~ these goods
| n, other IersOns ID violation Of his ddt' 10 pro-
T. e. il j. for our Honors LAY 81 TINS agreement,
| IN this third covenant, that he shall by no agree
| melt. assuming the manly form OF dWect cove
| nant Oh the one hand, or sneahmg under tle de-
| nomination of covenants on the other, that he WI
hN mo- means aid or Hbet or Hs Tar rs III nun lles,
| =, rmtt an, body 10 interfere with Mr. DAY IN the
| xciu.ye monopoly of the article winch 1t WAS
tie object of party TO cell, and the other party
| To buN submit, without going step lurther,
on the mere verdict of tie jury, tnat II IS Tor your
| Honors to say whether that can not he tine end Oh
| the case. | do not knO That 1t may not be sid
| ,hat action NAV nave been taken on demurrer. l
| will deYl frankly with the Court. | Will not say
| tut that have TO show whether or not the plea 10
double, and issue Is taken on the whole, "nch
| makes q double avermeLt, aud whether there
| is al estoppel on both averments. However nat
may be- we go, on the evidence, go'd way ne
| ,oId this. | understand the argument Of the
| eaIned counsel to be- that though GOpdyear may
| not have afforded prOtecflon In Day. down 20 the
1t of January, lSi9 that still If he has Afforded
| him protection that time, DAYS GOV -nhnt IS
| eth binding | shall hereafter nqu r., II your
| Hon Ors please, whether or not, IN point oil idct,
| NJ, GOODYEAR has afforded the least protection to
| Mr. Dav but am abOut t. submit tins prop
| ostion-and only submit It-and eve II u the
| 4cgment Of the Chancellor; If 1t Is 10 be tiken,
| rs ii must be- to the conclusive establish nent,
| thai t,r two wears and some months, the p hnt'h
| DID not protect Mr. Day ut all aud II u DC fur-
| tter tue. that thereupOD MIR. Da', deprive OF
tie protection for which he bargalned, "as drI'en
hom he business in which he had stipulated to be
| UrotCcted and forced 70 enter into unother bianch
of the manufacture, have 10 submit that IL Is hOt
| reasonable construction, that alter Nil that, hr.
Goody eur may wake up and demon strate an oier oi
prot. elton ginning after the cOsen 'nts
| had been nude, ana then INSIST Oh Il Vlng NJ Dit
| back again. ate, he had invested himself IN an
other TO the business IN which he agreed 70 pro-
feet him. bur in shlcn hr did not protect hun. aud
from which his want of protection Compelled Mr.
DIV TO make his escape Il IL not an inevitable IN
| teipretatIon that Goodbye within some fed-ona-
| be meaning OF that wO,d protection, is 10 protect
| Mr. LA, from the first, is To begin the pIbtectlIn
and rs to continue IT constantly, ett equally ana
zrsl, utlV; and unless That ~ dOne, Day - not
hound at all And therefore say, If your liOnors
find that Goodyear has neglected q niiO Il prOtec
ton for two wears aud hall, and that the cOn'e'
quence was TINT MIR. DAY was driven from the
Luslnes and obliged to enter INTO annthef II i Tor
y,ur HOnOTs to say, whethert IS not Il IN Instr0us
constructions terrible injustice, TO clam, tar al
ter that Nj. GOOdl eur may set about tend1rng
TINT v hch hr has failed t- extend 10 hn TIL tllht
COY enanf has j' en- stone dead Tor two years AMI
| hall until be shall have been driven from DOING
| business under IT. | submit that The construction
is too easOnabIe To be commended tor single
moment and. therefore the Court will cad on Inc
onl, to show that III consequence Of tins intefiup-
or of his business established us 1t - too ny the
verdict OF the Jury, IN point OF evden.r, MIR.
Day was encountered by competition insteied
int O life by that want Of protection, which COM
q fsa frtai. rod N
be allowed and protected to do, md f0rcrd him
INTO aIorher; tue eiore say, that the effect OF 1t
u.s. after the interruption U two years and quarter,
wholly to discharge Air. Day from tins contract.
The language H. that while Day Is protected he
shall 60 nothing else but tnls-th Is, WINE nc Is
continually protected by protection begtnIng
at the first, or within II reasonable time ait 7
making the agreement; ii protection steadily,
tfltcIually ana continually eniOrced-npt pro-
lection withheld till he Is driven from The
market and compelled, the best way he can,
to find another; aud then, httully, caprcIou'ly
and inteImutmgly resumed; ana thuS dfNe
HIM backward ana fOrw "a d, this year IN one thng,
and next wear 10 another thing, ut the sole viii
and pie asuIc Of GUody ear himself. Now, think
tnrt this constIucti'n Is bIded, not TO say con-
clusvtly forced upon u, by settled doctrine re-
hating to matters at SPECIFIC perf"fmance-iOr ex-
ample it Is Ii familiar doctrine, that II there Is any
uuf ruess or neglect, or lachts on the part VI u
ulsint,f he shall not have the extraordinary aid OF
a Court OF Chsncery 10 compel The perform lnce
OF his own side OF II covenant. And again, II there
has been ,haDge Of circumstances arising from
the COZ duct of The plaintiff nm elf, t. ere has
been great change III the circumstances Of t-e
parties after the contract wa OrlgIuaIly mtde,
hbd before the time when fe upphed u II Court of
CfanceIy to compel It's Pertor nance, he must suo-
MT his case TO an act on at law To reco'er DANA
gts. | lake II, therefore, for gran ed, the TACT
tunIs out 10 be established, and | nn"w about
to see whether or not IT Is established by the wi
derce OF ihi- want Of protrclion, MI psy' "ho'
,t,bs tiu.r the settlement was made, was doing
prospetuus business, III which he sought t. b; pro-
tr,rd and srcured by the contract itoe !, was,
within the time to which the verdict IN this use
extend, the want OF protection, that l. 10 saw ne
ior, the frst Of January lsi9, co npletely driven
fIom that employ mrnt, aud compelled TO 40 'ndon