American Cushman Telephone Co. v. Noble ( 1893 )

Hooker, C. J.

Plaintiff was a manufacturer of telephones in Chicago. The defendants, who were about to build a telephone line in Michigan, went to Chicago, and purchased some telephones and other appliances from the plaintiff. These telephones were afterwards determined to be infringements of the patents of the Bell Telephone Company, and plaintiff was enjoined from the further manufacture or sale of the instruments, and was ordered to turn over to the Bell Telephone Company all infringing instruments in its possession. Meanwhile, the defendants-had been sued by the Bell Telephone Company, and, either before or after the plaintiff had been enjoined as aforesaid, they turned over to the Bell Telephone Company such instruments as had been in use, in settlement of the actions commenced. A few telephones that had not been used were returned to the plaintiff, and, as we understand, these were not included in the claim sued upon in this case. The defendants gave notice of recoupment, and claimed damages for the failure of their title to the telephones.

The testimony showed that defendants were not ignorant •of the claim of the Bell Telephone Company that these telephones were an infringement of its patents. It was discussed between the parties at the time of the purchase, and the circuit judge assumed that, a full explanation of the situation was made by the plaintiff, and, in our opinion, practically decided the case. The case should have gone to the jury upon the theory of the defendants as well as upon that of the plaintiff. If the contract, which was not in writing, included a promise to employ all lawyers necessary, and defend and save defendants harmless, and the •same was not done, the defendants should have been permitted to recoup such damages as they sustained, if any, by reason of such failure, which could only be determined by the jury.

We think, also, that the court should not have admitted the testimony of the witness Hotchkiss, showing plaintiff's method of dealing with others in the sale of telephones.

Again, the testimony of Hotchkiss as to what was covered by the patents was inadmissible. He was not shown to be .an expert in such matters.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.