L. P. Larson, Jr., Co. v. William Wrigley, Jr., Co.

BAKER, Circuit Judge. [ I ] In Larson Co. v. Wrigley Co., 253 Fed. 914, 166 C. C. A. 14; on appeal from a final decree dismissing Larson Compapy’s cross-bill, we reversed the decree “with the direction to enter an injunction and order an accounting.” That decision is referred to for the status of the controversy anteceding the present inquiry. True, we did not specifically direct what sort of an injunction to enter. Looking to the pleadings, the proofs, and the decision of this court, the District Court entered a final injunction, perpetual in time and universal in place; No appeal was taken to question the correctness of the District Court’s interpretation of our mandate in that respect. True, we did not specifically direct what sort of an accounting to order. ■ Looking to the pleadings, the proofs, the decision of this court, and Larson Company’s prayer for profits and its waiver of its prayer for damages, the District Court ordered the master— “to take an account of all gains and profits of Wrigley Company to it accruing or arising from the manufacture and sale of its Doublemint gum in the dress hereinbefore enjoined, from its first sale on July 28, 1914, to the date of the entry of this- decree and such further time, not exceeding ninety days, as may he necessary to comply with this decree, and until compliance therewith.” [537] No petition or motion lias ever been presented to this court to question the correctness of the District Court’s interpretation of our mandate in that respect. While Larson Company before the master was endeavoring _ to make Wrigley Company account for “all gains and profits accruing from the manufacture and sale of its Doublemint gum,” Wrigley Corn-company, relying on the territorial limitation doctrine of the “Tea Rose” case (Hanover Star Milling Co. v. Allen & Wheeler Co., 208 Fed. 513, 125 C. C. A. 515, L. R. A. 1916D, 136; 240 U. S. 403, 36 Sup. Ct. 357, 60 L. Ed. 713), interposed as a defense against accounting for any of its sales outside of “common territory” the claim that Larson Company was a small manufacturer, had been making and selling its Wintermint gum for only seven months before Wrigley Company embarked upon its Doublemint adventure, had only a very limited trade, and had neither the ability nor the present intention to extend its trade, and Wrigley Company insisted upon examinations of the officers and books of Larson Company in order to prove those matters. A controversy developed between opposing counsel, from which it became apparent that such an investigation might be indefinitely prolonged, and Larson Company, on advice of its counsel, finally refused to submit to further investigation. Thereupon the master ruled that Wrigley Company’s investigation of Larson Company’s trade, finances, etc., should proceed, and the present actions in this court were brought to rmestion the District Court’s refusal to control the master in this regard. [2] If Larson Company were asking for a measurement of the damages caused by Wrigley Company’s undermining of its trade, an inquiry into the extent and value of that trade would he necessary. But Larson Company was actor, was in control of its own side of the litigation, and neither Wrigley Company nor the master nor the District Court, in view of the decree as euiered, could properly compel it to litigate the “undermining of its trade”—a matter that it had waived in this court by its briefs and in the District Court by its tender of form of decree. Inasmuch as the. decree specifically directs the master io take an account of all of Wrigley Company’s gains and profits from the manufacture and sale of Doublemint gum, and submits no other matter for his report, his duty to refrain from excursions should be sufficiently apparent. And since the decree, if truly entered in pursuance of the mandate of this court, is in effect the decree of this court, the master can be given no different authority while the decree remains in force. Despite the fact that the foregoing paragraph seems to us a complete answer to Wrigley Company’s contention, we will examine the question whether the territorial limitation issue has been adjudicated. [3] We ordered (in effect, though not in direct words) a final injunction, perpetual in time and universal in place, because, on consideration of the pleadings and the evidence, we found that in Wrigley Company’s Spearmint suit it had obtained a pendente lite injunction against Larson Company’s Peptoiuint gum by willfully deceiving the [538] court and had thereby oppressed its opponent; that Larson Company, while its trade was stopped by that wrongful injunction, brought out its Wintermint gum; that before Wintermint trade could be well established Wrigley Company put its Doublemint on the market for the purpose of forestalling Larson Company’s growing trade in Winter-mint; that Wrigley Company thereupon sued for an injunction against Wintermint on the grounds that Doublemint was the elder product and that the two articles were one and the same in the eyes of the trade; that Larson Company, by answer and counterclaim, agreed with Wrigley Company that the two packages were substantially the same,-but asserted that Wintermint was the elder; that Wintermint was in fact the elder; that Wrigley Company, before adopting and bringing out its Doublemint, had knowledge of Larson Company’s Wintermint; and that both parties were bound by their sworn pleadings, and Wrig'ley Company additionally by the testimony of its officers, to the fact that the two articles were one and the same in the eyes of the trade. Looking to Larson Company’s legal rights flowing from these adjudicated issues of fact, we found Larson Company entitled in law and equity to a perpetual and universal injunction against Wrigley Company’s Doublemint; and in adjudicating that issue of law (or mixed conclusion of fact and law), we necessarily adjudicated the following subordinate or foundational issues, averred in the pleadings and covered by the finding of facts, though we did not deem it necessary to enumerate them: That Larson Company was the owner of the common package and had the exclusive right to make and sell it; that Wrigley Company knowingly and willfully trespassed upon Larson Company’s rights; that Wrigley Company was intentionally forestalling Larson Company; that Wrigley Company thereby constituted itself the agent of Larson Company in making and selling the common package that was the property of Larson Company; and that Larson Company was therefore entitled to stop the activities of its self-appointed agent. And although Wrigley Company in its pleadings did not directly tender the territorial limitation issue, that issue was substantially included in Wrigley Company’s general denial of Larson Company’s allegation that everywhere that Wrigley Company went it was putting Larson Company’s product on the market. [4] Now, it is true that the order to the master to take an account of all of Wrigley Company’s profits from making and selling Double-mint is interlocutory, and therefore no question arising out of such an accounting is reviewable in this court until after the District Court shall finally have disposed of the mastér’s report. But that does not authorize the master to open any question of fact or of law that was adjudicated in the decree of perpetual and universal injunction. Wrigley Company moves to dismiss the appeal. We think that the question whether the directed decree of an appellate tribunal is being correctly carried into execution may properly be brought to that tribunal’s attention either by petition for a writ of mandamus or by appeal from an order of the subordinate tribunal that is alleged to be in violation of the directed decree or by motion. 'If this is done only by a peti [539] tion for a writ of mandamus, the opposing litigant is not directly brought into court; and it would seem to be not unreasonable to give the opponent direct notice in some way. The appeal will be allowed to stand as serving the purpose of motion and notice. In our judgment the District Court should have controlled the action of the master and that court is accordingly advised to direct the master to proceed with the accounting in conformity with the order as entered. In No. 2822 the writ will issue. In No. 2831 the order is reversed.