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ented or copyrighted is effectuated by such system of contracts applied thereto is incorrect. That control is not so effectuated. It is effectuated by the exclusive right and the limited license. The sole effect of the application of the system of contracts thereto is to supply a remedy on contract that may be enforced in the State Courts. The other point of break-down is in the position that the right to apply such a system of contracts to things patented or copyrighted with such effect as it has arises solely from the statutes as to patents and copyrights. To no extent does it arise therefrom. It is the creature alone of the common law. . . .

This brings us to the other argument put forward by defendant's counsel in support of the contention that the system of contracts under which he sells his medicine outright and attempts at the same time to retain the control over the subsequent trade therein is unlawful. It is that said system of contracts in so far as it attempts to retain such control contravenes the common-law rule invalidating contracts in restraint of trade. . . . I conclude that the complainant's system of contracts is valid. The position is taken in brief on behalf of defendant that the system of contracts is invalidated by the federal anti-trust Act of 1890; but I understand that this position is not insisted on. I therefore make no further reference thereto.

The general demurrer is overruled. There is a special demurrer to so much of the bill as seeks an injunction restraining defendant from removing the dress from complainant's bottle and mutilating the label. It is urged that if the system of contracts is upheld and enforced the complainant will have no occasion for such relief. This does not occur to me as sufficient reason for his not obtaining it. The special demurrer is also overruled. 1

SUB-TITLE (III): HARMS TO ONEROUS RELATIONS; BURDENS CREATED OR INCREASED BY DEFENDANT'S ACT

229. CUMMING v. BROOKLYN CITY RAILROAD

1 [NOTES:

COMPANY

COURT OF APPEALS OF NEW YORK. 1883

109 N. Y. 95, 16 N. E. 65

[Printed ante, as No. 70.]

"Conditions as to resale of patented articles." (C. L. R., V, 62.) "Control over sale of copyright article." (C. L. R., VI, 50, 55.)

"Agreements in restraint of trade by patentees: Whether illegal." (H. L. R., XIX, 125.)

"Copyrighted Books - Restriction on sales." (M.L.R., V, 398.)]

2 [LORD PENZANCE, in Simpson v. Thomson (1877, L. R. 3 App. Cas. 279, 289). The contention of the plaintiffs involves a principle which, if it were

230. ANTHONY v. SLAID

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1846

11 Met. 290

SHAW, C. J. The case stated in the plaintiff's declaration is this: He was a contractor for the support of all the poor of the town of Adams, at a fixed sum per annum, and undertook to support them, in sickness and health, at his own risk: The defendant's wife committed an assault and battery upon one of the town paupers, by means of which he was hurt, and the plaintiff was put to increased expense for his cure and support.

The Court of Common Pleas decided that this action, if the facts alleged in the declaration were proved, could not be maintained; and exceptions were alleged by the plaintiff. We are of the opinion that this decision was right. It is not by means of any natural or legal relation between the plaintiff and the party injured that the plaintiff sustains any loss by the act of the defendant's wife, but by means of the special contract by which he had undertaken to support the town paupers. The damage is too remote and indirect. If such a principle be admitted, we do not see why the consequence would not follow, as stated in the argument for the defendants, that in a case where an assault is committed, or other injury is done to the person or property of a town pauper, or of an indigent person who becomes a pauper, the town might maintain an action, with a per quod, for damages. That there is no precedent for such an action, where there must have been many occasions for bringing it, if maintainable, is a strong argument against it. Lamb v. Stone, 11 Pick. 527 [ante, No. 133]. Exceptions overruled. Robinson & Sayles, for the plaintiff. Byington, for the defendants.

231. CUE v. BREELAND

SUPREME COURT OF MISSISSIPPI. 1901

78 Miss. 864, 29 So. 850

From the Circuit Court of Hancock County.

Hon. Thaddeus A. Wood, Judge.

Breeland, appellee, was the plaintiff, and Cue, appellant, was defendant in the Court below. The action was trespass for damages done

sound, would have a wide application and significance. It is this: Where damage is done by a wrongdoer to a chattel, not only the owner of that chattel, but also all those who have bound themselves to obligations which are rendered more onerous, or have secured to themselves advantages which are rendered less beneficial, by the damage done to the chattel, have a right of action against the wrongdoer. . . . If this be true as to injuries to chattels, it would seem to be equally so as to injuries to the person.]

to a county bridge. The plaintiff connects himself with the bridge only in this way: He erected the same under a contract with the county, and bound himself to the county, by his contract and a bond, to maintain the bridge for five years after its erection. The declaration charged that the bridge was destroyed by the negligence and wilfulness of defendant's servants, who were engaged in the floating of logs down the stream; that the plaintiff, in pursuance of his obligations to the county, had rebuilt the bridge at a cost of $400, and the demand was for said sum, with interest, etc. The trial in the Court below resulted in plaintiff's favor and defendant appealed to the Supreme Court.

E. J. Bowers and McWillie & Thompson, for appellant. The ownership of the bridge was not in the plaintiff, but was in the county. Can a plaintiff maintain an action in his own name for damages done by a trespass to property which belongs to another?

That the ownership of the bridge was in the county cannot be disputed under the authorities. . . . The ownership of the property damaged, or its possession, is essential to the maintenance of an action of trespass, whether the property be real or personal. The plaintiff does not claim to have either owned the bridge, to have been in possession of it, or to have owned the fee of the land over which the highway passed or on which the bridge was erected. He was not an abutter.

He cannot maintain an action of trespass. Buller's Nisi Prius, 81a. The same doctrine is announced in Abbott's Trial Evidence, 629; Ib. 634, 635. This is certainly the law of Mississippi. McFarland v. Smith, Walker, 172; DeJarnett v. Haynes, 23 Miss. 600.

But it is claimed that this action can be maintained because of the obligation to the county under which the plaintiff rested by his contract, and that, having performed that obligation, he is the only party injured. While it is true plaintiff has been damaged, yet it does not at all follow that he can maintain this action. We are led to the inquiry, What legal relation did plaintiff occupy towards the bridge? He was purely and simply an insurer; he insured the county against loss from the destruction of its bridge. The authorities are abundant that an insurer cannot, in his own name without an assignment of the cause of action by the owner of the destroyed property, maintain an action of trespass against the wrongdoer. Sheldon on Subrogation, § 230; Swarthout v. Chicago, etc., R. R. Co., 49 Wis. 625; Peoria, etc., Co. v. Frost, 37 Ill. 333; Hart v. Western, etc., R. R. Co., 13 Met. (Mass.) 99, s. c. 46 Am. Dec. 724; Aetna Ins. Co. v. Hannibal, etc., R. R. Co., 3 Dillon C. C. 1; Rockingham, etc., Co. v. Bosher, 39 Me. 253, s. c. 63 Am. Dec. 618; Insurance Co. v. Railroad Co., 25 Conn. 265, s. c. 65 Am. Dec. 571; Hall v. Nashville, etc., R. R. Co., 13 Wall. 367.

J. M. Shivers, for appellee. At the time of the wrongful destruction of the bridge, appellee, Breeland, was under obligation to rebuild it, and he did rebuild it at a cost of $400 to himself. He was not a volunteer in so doing; he was damaged by appellant's wilful trespass just as

effectually as if he were the real owner of the bridge. In fact, he was under all the obligations of ownership. His interest was sufficient to maintain the action. 26 Am. & Eng. Enc. L. (1st ed.), 588; Ib. 600, and notes. The principle on which the case rests finds recognition in the case of Fast v. Canton, etc., R. R. Co., 77 Miss. 498.

Argued orally by E. J. Bowers and R. H. Thompson, for appellant. WHITFIELD, C. J., delivered the opinion of the Court.

The wrong done was one done to appellee, not the county. That wrong consisted in putting the appellee in a situation where he was bound to rebuild, and it is the cost of the rebuilding which is the measure of his damage. The declaration proceeds on this idea, and the demurrer was properly overruled. With the damages here sought to be recovered the county had nothing to do. The fifth charge asked by the defendant properly states the abstract principle of law, but the sound principle had been announced substantially in defendant's third and fourth charges.

If the creek was navigable, it was yet the duty of appellant not to so float his logs as wilfully to injure appellee. There was evidence showing that the appellant's authorized agent, while engaged in the master's work, told an employe to "let the logs loose and let them make or break"; that they were let loose late in the evening; that they could have been guided through by four men stationed on the bridge, and that no effort was made to do this. Sic utere, etc., fits in here. If the jury believed this, and it would seem they did, then a case of wilful wrong was made out, and error in refusing the fifth instruction for defendant, and the one as to navigability conferring superior rights, could not possibly, in that view, be reversible error. We think the right verdict has been reached, the judgment is Affirmed.

232. MITCHELL v. BURCH

SUPREME COURT OF INDIANA. 1871

36 Ind. 529

APPEAL from the Fountain Common Pleas.

BUSKIRK, J. This was an action of replevin brought by the appellee against the appellant, to recover the possession of eighteen head of hogs, which he alleged belonged to him, and had been illegally and unlawfully taken, and were unlawfully and wrongfully detained by the appellant.

The appellant answered in two paragraphs: first, denial; second, that the defendant was the owner of the hogs in controversy. The cause was tried by a jury, which returned the following verdict:

"We, the jury, find the property replevied to be the property of the plaintiff, and assess his damages at twenty-five dollars, and assess his damages for the detention thereof at twenty-five dollars. GEORGE RIDGE, Foreman."

"We, the jury, find the nine hogs not replevied to be the property of the plaintiff, and are of the value of ninety-five dollars, and assess his damages for the detention thereof at ninety-five dollars.

GEORGE RIDGE, Foreman."

. . The Court rendered a judgment on the verdict. The judgment was that the plaintiff was the owner of, and entitled to the possession of the hogs described in the complaint, and that the plaintiff recover of and from the defendant, the sum of one hundred and twenty dollars as and for his damages as assessed by the jury, and costs of suit. . . .

It is next insisted that the damages were excessive, for the detention of the nine hogs that were replevied. As we have seen, the jury assessed the plaintiff's damage at twenty-five dollars for the detention of the nine hogs. The solution of this question will depend upon the elements that enter into and constitute the basis for determining the measure of damages for the detention of personal property, in an action of replevin.

The plaintiff testified as follows: "I lost two weeks' time hunting hogs; hands were worth one dollar per day; team to plow worth from one dollar and fifty cents to two dollars per day; had to stop the plow while hunting the hogs, as I only had two work horses, and used one to ride." An elementary writer states the law thus:

When the property has been delivered to the plaintiff, and the jury find for him, they should assess the damages for the detention, and he is entitled to compensation for any deterioration in the value of the goods replevied, while they were in the hands of the defendant, and also for his time lost and expense incurred in searching for his property, and to the hire of slaves. When the property has not been delivered to him, the jury should also find the value of the property. In this case the damages for detention are usually interest on the value from the time of taking, but in proper cases exemplary damages may be given." Morris, Replevin, 193–4.

Nelson, C. J., in delivering the opinion of the Court in Bennett v. Lockwood, 20 Wend. 224, says:

"The defendant took the horse and wagon of the plaintiffs wrongfully, and used them, by reason of which taking the plaintiffs were induced to believe that the person to whom they had hired them temporarily had absconded, and therefore they went in pursuit of their property, and expended time and money. It is insisted for the plaintiffs in error that the Common Pleas erred in allowing the plaintiffs to recover for the time spent, and expenses incurred, on the ground that the damages thus claimed were not the natural or necessary consequence of the wrongful taking. Admitting the counsel for the plaintiffs to be right in this proposition, it is not objection to the recovery if the damages were proximate and not too remote, and were claimed in the decaration. 1 Chitty's R. 333; Saund. Pl. and Ev. 136. Here the damages were duly claimed; they occurred in the use of reasonable means on the part of the plaintiffs to repossess themselves of their property, and were occasioned by the wrongful act of the defendant."

We are of the opinion that the plaintiff was entitled to recover damages for the time necessarily spent and expenses incurred in hunting

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