La Crosse Plow Co. v. Van Brunt

KOHLSAAT, Circuit Judge (after stating the facts as above). The ultimate question here involved is: With what sum should appellant be charged, if any, as profits growing out of the sale of seeding machines using the infringing scraper? Having ascertained that appellant realized a profit of $17,396.17 from machines so equipped, as to which finding no error is assigned, it was the duty of the trial court to determine, if possible, from the evidence, what part' of that profit, if any, arose from the use of the infringing furrow opener. Where, as in the present case, the proceeds of the sales of seeders was so hopelessly confused as to make such discovery impossible from appellant’s books and- business methods and other facts in evidence, appellee was relieved from making any apportionment of profits, and it became obligatory upon the appellant to take up that burden. Westinghouse Elec. & Mfg. Co. v. Wagner Elec. & Mfg. Co., 225 U. S. 604, 32 Sup. Ct. 691, 56 L. Ed. 1222, 41 L. R. A. (N. S.) 653. This appellant undertook to do by offering in evidence certain other furrow opening devices, in ofder to show that, by the use thereof, appellant derived no profits “over what it would have had in using other means then open to the public, and adequate to enable it to obtain an equally beneficial result” — following the rule laid down in Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894, 31 L. Ed. 664, Sessions v. Romadka, 145 U. S. 29, 12 Sup. Ct. 799, 36 L. Ed. 609, and Columbia Wire Co. v. Kokomo, 194 Fed. 108, 114 C. C. A. 186. [629] We do not deem it necessary to enumerate the various devices produced in evidence by appellant as so-called standards of comparison. Suffice it to say, no one of them disclosed the infringing scraper in suit. Some of them were not open to. appellant; others were too broad or too wide or too thick to meet the requirements of seeding in the Northwest territory; some were double disk furrow openers, some single; some had the single disk with cast scraper; and some were in the form' of shoe drills or furrow openers. After going carefully into all these, the master found that none of them compared favorably with the infringing scraper, or could be used as a standard of comparison therewith, and concluded with the finding that in the Northwest territory, with its sticky soil, the seeders equipped with the infringing scraper practically supplanted every other seeding machine, and that, in order to get an entrance into the sticky soil territory, it was essential that appellee’s device be employed. It is strongly corroborative of this evidence that appellant and, as the evidence shows, many others have copied it, either as infringers or licensees. We find the conclusion of the master well supported by the evidence. Appellant introduced evidence to show that subsequent to the infringing period it used a noninfringing single disk furrow opener with a broad scraper, which the master found was successful in the Northwest territory for a short time and then suspended. That the infringed scraper lives, and that the broad scraper died, would seem to negative the claim that the latter was adapted to the sticky territory’s requirements, even if the former were competent. Thus we are led to the conclusion that it was the infringing scraper that commanded the planting trade in the Northwest, and that without it the seeding trade of appellant would not have resulted profitably to it. We further conclude that, in view of the .fact that appellant made it impossible for appellee or the court to apportion the profits as between the infringing scraper and the other parts of said seeding machine, appellee, under the decisions, is entitled to all the profit realized by appellant from the sales of seeding machines carrying said infringing scraper in said Northwest territory. There seems to be no exception to the finding of the District Court and the master that 60 per cent, of appellant’s infringing sales were had in said Northwest territory. This method of apportioning the profits seems fair to us. We are therefore of the opinion that the decree of the District Court, in awarding to ap-pellee profits to the amount of $10,437.70 against appellant, was right upon the evidence. We do not deem the objection of want of notice well taken. The filing of the bill and service of process was notice, and the accounting period was then begun. American Caramel Co. v. Thomas Mills & Bros., 162 Fed. 147, 89 C. C. A. 171 (3d Cir., C. C. A.). The decree of the District Court is affirmed.