The New England Car-Spring Co. v. The Union India Rubber Co.

well, Barb. S. C. R., 128.) Where a party, negligently or wilfully, silently stands by, and allows another to contract, on the faith and understanding of a fact, which he can contradict, he cannot afterwards contradict that fact, as against the person who may be injured thereby. (Gregg v. Wells, 10 Ad. & Ell., 90; Watson's Exrs. v. McLaren, 19 Wend., 557, 563; Dezell v. Odell, 3 Hill, 215; Reynolds v. Lounsbury, 6 Hill, 534, 536; Sanderson v. Collman, 4 Mann. & Gr., 209; Welland Canal Co. v. Hathaway, 8 Wend., 480, 483; Bushnell v. Church, 15 Conn., 406, 419.) If he stands by and sees his property sold, without objecting to it, he is estopped from saying that the party selling had no right to sell; and this even when he derives no benefit from the sale, and especially when he receives and keeps the consideration money derived from it. In such a case, it is his duty to speak and make known his rights to the purchaser, if he does not intend to be bound by the sale; and, if he is silent, when conscience requires him to speak, Equity will debar him from speaking, when conscience requires him to be silent. (Hall v. Fisher, 9 Barb. S. C. R., 17.)

It is not necessary to examine many particular cases to sustain these rules. In the case of Zulueta v. Tyrie, (21 Eng. Law and Eq. R., 582,) A., a merchant in Cuba, sold to B. part of a cargo shipped by him. C., (who was A.'s correspondent in England,) being informed thereof by B., made no claim until four months afterwards, when he insisted on a paramount right, over B., to the cargo. It was held, that, even assuming he had originally such paramount right, his conduct had been such, that a Court of Equity would not allow him to enforce it against B. The case of Wing v. Harvey, (27 Eng. Law and Eq. R., 140,) was an action on a policy of insurance issued by the Norwich Union Society for the insurance of lives, on the life of one Bennett. There was an express condition in the policy, that it should be forfeited and become void, in case the assured went, without the license of the directors, beyond the limits of Europe. He did, without such license, go to Canada, where he resided several years, and there died. After the forfeiture,

The New England Car-Spring Co. v. The Union India Rubber Co.

premiums were paid, from time to time, to a local agent, who knew of the residence of the assured in Canada, upon the faith that the policy continued valid and effectual. These premiums were transmitted to the directors, who retained them without objection. It was held, that though the local agent might not have given notice to the directors, of the true state of the circumstances under which the premiums were paid, the directors became as much bound as if the premiums had been paid by the assured directly to them, with full knowledge of such circumstances; that the directors, by taking the money, were precluded and estopped from saying they received it otherwise than for the purpose for which it was paid to the agent; and that that for which the money was paid should be executed. He who takes the benefit of any contract or deed must bear the burthens of such contract or deed. If he knowingly accepts a part of the purchase money for a sale of property, he is estopped from denying the validity of the sale. (Stroble v. Smith, 8 Watts, 280; Brewster v. Baker, 16 Barb. S. C. R., 613.) If a person accepts a beneficial interest under a will, he thereby debars himself from setting up a claim which will prevent its full operation. (Weeks v. Patten, 18 Maine, 42; Hyde v. Baldwin, 17 Pick., 303; Thellusson v. Woodford, 13 Vesey, 209.) Apply this principle to the case now under consideration. The Naugatuck Company accepted and received a beneficial interest in the contract between Goodyear and Ely and Crane, to wit, $1000, a part of the consideration for the sale of the exclusive right to manufacture car-springs. They would be estopped, therefore, from setting up any claim to prevent the full operation of the sale of such exclusive right.

There are other considerations presented by the plaintiffs, to show that the exclusive right to manufacture car-springs was in the New England Car-Spring Company; as that, when the sale was made by the Naugatuck Company to the Union India Rubber Company, the agent of the latter Company, who procured the purchase to be made, and who, on their part, executed the contract, had full knowledge that no right existed in the Naugatuck Company to manufacture car-springs, and

Sickels v. Borden.

that no such right was intended to be purchased by the Union Company; as that the defendants have, at all times, until within a few months past, acquiesced in the exclusive right of the New England Car-Spring Company; as that the Union Company applied to the New England Car-Spring Company for liberty to make car-springs for them, and, on condition that they might so manufacture, covenanted not to make springs for other parties in interference with the rights of the New England Car-Spring Company, as granted to said Company by Charles Goodyear; as that the Union Company have never stamped the car-springs manufactured by them, with the words "Goodyear's patent," and have never paid or offered to pay any tariff, which they were bound to do, if they were manufacturing by virtue of any right derived from the Naugatuck Company; and as that the exclusive right of the plaintiffs has been established in various trials at law. But it is not necessary to examine the force of any of these considerations. The points considered show that the exclusive right claimed by the New England Car-Spring Company is clear, and that the violation of right on the part of the defendants is equally clear. An injunction must, therefore, issue, as prayed for.

WILLIAM B. SICKELS

vs.

WILLIAM BORDEN AND OTHERS. IN EQUITY.

Semble, that, in order to attach for the breach of an injunction restraining the infringement of a patent, the party to be proceeded against must be a party to the suit, and have had notice of the application for the injunction. What constitutes the violation of an injunction, considered.

If an injunction is made broader in its scope than was intended by the order under which it was issued, the defendant should, on being served with it, take immediate measures to set it aside for that reason, and not wait, to raise the objection, until the hearing of a motion for an attachment for a violation of the injunction.

Sickels v. Borden.

Where the chief engineer of a steamboat, owned and run by a foreign corporation between a port in New York and a port in Rhode Island, violated an injunction served upon him as a defendant in a suit: Held, that it was no defence to a motion for an attachment against him for such violation, that he was a mere servant of the corporation and subject to the orders of the master of the steamboat. (Before HALL, J., Southern District of New York, April 14th, 1857.)

THIS was a motion for an attachment for the violation of an injunction restraining the defendants from using "a certain improvement in the cut-off, patented to Frederick E. Sickels by letters patent dated September 19th, 1845,"" by themselves, their agents, servants, workmen or employees" "on the steamer Metropolis, running on the Sound between New York and Fall River." The injunction was issued under an order made by Mr. Justice Nelson, authorizing the issuing of an injunction "enjoining and restraining the defendants, their agents, workmen and employees, from using or permitting to be used, on the engine of the steamer Metropolis, a certain improvement in the mode of tripping cut-off valves, patented by Frederick E. Sickels on the 19th day of September, 1845, whereby the extent of the cut-off on said engine is regulated by means of a motion at right angles, or nearly so, to the valve-motion of the engine, through the agency of a vibrating sector, with arms moving coincident with the motion of the piston, or nearly so, as the same is now in use on said engine." It was contended. by the counsel opposing the motion, that the injunction was broader than the order; that the attachment could have no operation beyond the terms of the order; that, by the terms of the order, the injunction was limited to the use of the adjustable feature of the invention referred to; and that, the defendants not having used that portion of the patented inven. tion, no attachment for a breach of the injunction should be issued. The motion was for an attachment against William Borden, William H. Brown, Augustus Sturgis, and Horatio Allen, the first three being, with The Bay State Steamboat Company, the defendants in the suit. The marshal's return stated that the injunction was personally served on the defendants Borden, Brown and Sturgis, on the 29th of November, 1856.

Sickels v. Borden.

A notice of a motion for an attachment, dated December 2d, 1856, and a copy of an affidavit of Henry Mason, were served on Horatio Allen on the 3d of December, and on William H. Brown, William Borden and Augustus Sturgis, on the 4th of December. The affidavit of Mason stated that he was an engineer; that he went to Fall River on the Metropolis, on Saturday night the 29th of November, and observed the operation of the engine of the boat; that the valves were operated, on that trip, in the same manner as before the injunction was served, cutting off at about half stroke, by means of a sector, with arms or wipers moving as before, independent of the lifters; that the only change made was in substituting for the screw, which gave the adjustable feature, a smooth rod with collars; and that Sturgis, the engineer of the boat, informed him that Horatio Allen had made the change on the boat. A notice of the renewal of the motion on the 26th of December, was served on Borden, Allen, Brown and Sturgis, on the 23d of December, and gave notice of the use of the affidavit of Mason. That affidavit was the only proof produced on the part of the plaintiff to show a violation of the injunction.

In opposition to the motion, the counsel for Allen, Borden, Sturgis and Brown read the affidavits of Allen, Sturgis and Borden, and the affidavit of one John Fuerst. The affidavit of Allen showed that he was not in Court when any injunction was ordered, and that he had never been served with any order or injunction in the case, or with any copy or notice of any such order or injunction. It also stated, that he prepared a plan for the change of the valve-gear of the engine of the Metropolis, under a request to alter such valve-gear so as to prevent its continuing to be an infringement of the Sickels patent; that such plan was submitted to the counsel who defended the suit at law which preceded this suit in Equity; that said counsel advised that, when the proposed alterations were made, the valve-gear would not be an infringement upon Sickels' patent; and that the proposed alterations were accordingly måde. It also stated, that such alterations entirely stripped the valvegear of its adjustable feature. The affidavit of Sturgis stated