Nebraska

Stories & Pictures from Local Dealers/Jobbers:

The Wittmann Co.:

"WITTMANN COMPANY ENJOINED.

LAST Fall the Wittmann Company, of Kansas City, Mo., and Lincoln, Neb., began cutting prices on Edison Phonographs, Records and Blanks, in violation of its agreement with the National Phonograph Company. We at once instituted proceedings against the Wittmann Company, and on January 30th, 1903, Judge Munger, in the U. S. Circuit Court for the District of Nebraska, used two restraining orders, one enjoining the Wittmann Company from 'directly or indirectly selling or causing to be sold at prices less than the prices set out in the terms and conditions of the contract set up and described and referred to in complainant's bill, all Phonographs, Records and Blanks furnished and sold by the complainant to the defendant and its predecessors.' The other restrained the Wittmann Company from selling or using Phonographs from which the numbers have been erased." [Edison Phonograph Monthly; March 1903; Volume 1, Number 1, Page 3]

"FURTHER DECISIONS IN OUR FAVOR IN THE WITTMANN CASE.

ONE after another the courts of the country are upholding the validity of the agreement system of the National Phonograph Company. Last month we noted in these columns the granting of two restraining orders by Judge Munger, of the U. S. Circuit Court for the District of Nebraska, restraining the Wittmann Company, of Lincoln, Neb., and Kansas City, Mo., from cutting prices and also from changing the serial numbers on Phonographs. Just as we go to press with this issue, we are advised that the same judge and court have issued two preliminary injunctions against the Wittmann Company for the same violations of contract. Abstracts of the opinions appear on another page." [Edison Phonograph Monthly; April 1903; Volume 1, Number 2, Page 3]

"IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

Edison Phonograph Company, Complainant, v. The Wittmann Company, Respondent.

No. 101, V.

Memorandum Opinion.

Munger, D. J.

This is an action brought by complainant to restrain the respondent from disposing of certain phonographs having the serial number placed thereon erased or obliterated.

The petition is framed upon the theory that the obliterating of the serial number is an infringement of complainant's patent. There does not appear to have been any contract between complainant and respondent. The articles in question were purchased by respondent from other dealers or jobbers, but it appears from the evidence that respondent was aware of the provisions of the contracts under which the machines were placed upon the market for use and sale. The objection of respondent to the introduction in evidence of the alleged contract between the Omaha Bicycle Company and respondent, on the ground that no foundation for the same existed, is sustained, and such contract has not received consideration.

There was placed upon each machine a plate, having plainly and distinctly engraved thereon, among other words, the following:

'This machine is sold upon the condition that it is licensed to be used or vended only so long as this serial number S is not removed or changed in whole or in part.' 

It is alleged that the serial numbers have been obliterated, and it is charged that such obliteration was done by respondent. That these serial numbers were obliterated and that it was done by respondent is not denied, but it is claimed that such act does not constitute an infringement, and as there was no contract between complainant and respondent, the action cannot be maintained. The Court of Appeals of this Circuit in Dickerson v. Tinling, 84 Fed. 192-195, with reference to the sale of a patented article upon conditions, uses this language: 

'If the corporation sold the patented article subject to such a restriction, the purchasers, with notice of this limitation, whether immediate or remote, could acquire no better right than strangers to infringe upon the monopoly secured by the patent.'

This, in effect, is a holding that the owner of a patented article may, in disposing of the same, impose such conditions as he sees fit, and a violation of those conditions upon the part of any subsequent owner, with notice thereof, would be an infringement of the patent. Such seems to be the law as announced in Edison Phonograph Company v. Pike, 116 Fed. 893. For these reasons the injunction, as prayed, will be granted, upon complainant executing to respondent a bond to be approved by the Clerk of the Court, conditioned as provided by law, in the sum of $5,000; such bond to be given within ten days." [Edison Phonograph Monthly; April 1903; Volume 1, Number 2, Page 8]

"IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

National Phonograph Company, Complainant, v. The Wittmann Company, Respondent.

No. 97, V.

Memorandum Opinion.

Munger, D.J.

This is an application to enjoin the respondent from disposing of certain phonographs and records in violation of a contract between complainant and respondent. The provisions of the contract material to the consideration in this inquiry are in substance that the Company will not sell said articles at less than the price stated in said contract; and it is charged in the bill and established by the evidence that the respondent has violated the contract in this respect by making sales in violation of the agreement. This is sought to be justified on the part of respondent on the ground that complainant first violated the terms of the contract, which violation on the part of complainant absolved the respondent from being further bound by the contract ; or, to be stated in another way, that complainant, in asking equity must do equity, and that, having first violated the contract it is not in a situation to ask for the aid of a court of equity. It is clear from the authorities, I think, that complainant is entitled to the relief asked under the terms of the contract, unless it shall appear that the contract was first violated upon the part of complainant, and that by reason thereof complainant cannot invoke the aid of a court of equity for its enforcement in the respect sought in this action. I have carefully read the various affidavits and correspondence offered in evidence and am not satisfied that respondent has shown a breach of the contract upon the part of complainant. Respondent's claim is that their contract gave them the exclusive right as jobbers within certain territory for a certain period of time, and that complainant violated this provision of the contract by furnishing the articles to other jobbers within such territory. As stated, I am unable to find from the evidence offered that complainant did give to respondent the exclusive right to job the machines within the territory designated. Such being the case, a temporary order of injunction will be granted as prayed, upon complainant executing to respondent a bond to be approved by the Clerk of the Court, with the usual conditions, in the sum of $5,000; such bond to be given within ten days." [Edison Phonograph Monthly; April 1903; Volume 1, Number 2, Page 8]

J.A. Anderson:

"TRADE OPINIONS ON THE MONTHLY.

J. A. Anderson, Stromsburg, Neb.: —

The new Edison Phonograph Monthly received, which I think is all right. Am glad to see that the prices on Edison goods are to be maintained." [Edison Phonograph Monthly; April 1903; Volume 1, Number 2, Page 10]