A. c. Nºorons—c.
511,559.
511,560.
No. 10.
'i Opinion—Court of Appeals.
Motion for Preliminary Injunction.
Tesla Split-Phase Motor.
Patents Nos. 511,559 and 51 1,560.
Jefferson Electric Light, Heat & Power Company,
--- Appellant,
VS.
Westinghouse Electric & Manufacturing Company,
Appellee.
Opinion filed in the U. S. Circuit Court of Appeals for
the Third Circuit, June 9, 1905.
C. G. BURGoyNE, Walker and Centre Streets, N. Y.
[Printed from Certified Copy.]
In the United States Ciròlit COllrt Of Appeals
FOR THE THIRD CIRCUIT.
JEFFERSON ELECTRIC LIGHT, HEAT
& POWER COMPANY.,
Appellant,
WS.
WESTINGHOUSE ELECTRIC AND MANU- .
FACTURING COMPANY.,
Appellee.
ARTHUR KEITHLEY, for Appellant,
GEO. H. CHRISTY, THOS. W. BAKEWELL, for Appellee.
Appeal from the Circuit Court of the United
States for the Western District of Pennsylvania.
Before ACHESON, DALLAS and GRAY, Circuit Judges.
ACHESON, Circuit Judge.
This case was heretofore before this Court on an
appeal by the defendant below (the present appellant)
from an Order granting a preliminary injunction.
That order we reversed because of the pendency of a
plea of res adjudicata based upon a decree of the
United States Circuit Court of Appeals of the Second
Circuit in a suit brought by the complainant here
against the Catskill Illuminating & Power Company
(121 F. R. 831; 58 C. C. A. 167) adjudging each of the
patents in suit to have been anticipated, and the in-
complete and conflicting character of the preliminary
proofs upon which the court granted the injunction.
(134 F. R. 392). In the opinion then delivered we
said :
“The case, it is probable will ultimately turn
upon this defense of res adjudicata. The pre-
2
liminary proofs relating thereto are very con-
flicting. The defendant is a mere user of these
meters. . No irreparable injury, or indeed, any
special injury to the complainant from the de-
fendant's use of the meters, is alleged or shown.
Under the circumstances, then, we think that
the court should have forborne to act until full
proofs were before it. Without intending to
intimate any opinion upon the merits of the
case, we will reverse the Order granting a pre-
liminary injunction.”
Thereafter the proofs under the plea of res adjudi-
cata were completed, and the cause proceeded to hear-
ing upon the plea and a renewed motion for a prelim-
inary injunction, resulting in a decree overruling the
plea and granting an injunction. From that decree the
defendant appealed. The case has been argued before
us entirely upon the defense raised by the plea and
the only question we are called on to discuss is
whether the plea was sustained by the proofs. The
plea avers that the issues in the Catskill case (men-
tioned above) and in this case are the same and that
the parties are the same inasmuch as said Catskill case
was, and this case is, defended by the Diamond Meter
Company, which manufactured the alleged infringing
devices in that case as well as in this, and that the
complainant knew that the Diamond Meter Company
was defending the Catskill case, and that the decree
therein is "es adjudicata of everything involved in this
C8,S62. -
Upon an attentive examination of the proofs we
have reached the conclusion that the learned Judge
below was right in overruling the plea. Certain it is
that the Diamond Meter Company did not avowedly
or openly conduct the defense in the Catskill case. No
doubt (as now appears) that company did carry on the
defense, at its own expense, but this was done with
such secrecy as not to expose its connection with the
litigation. The allegation that the complainant knew
that the Diamond Meter Company was participating in
the defense of the Catskill case is not sustained by the
proofs. The counsel for the complainant, indeed, had
3
reason to suspect that the Diamond Meter Company
was conducting the defense in the Catskill suit, but we
think the evidence fails to bring home to them any
certain information on the subject. The proofs as a
whole Satisfy us that the purpose of the Diamond
Meter Company was to maintain such an atti-
tude with reference to the Catskill suit that
it might have the indirect benefit of the decree if
favorable to the defendant therein and yet not be con-
cluded should the decree be adverse to the defendant.
But if the Diamond Meter Company desired that
the decree in the Catskill suit should operate as an
estoppel in its favor, it was bound by avowel or open
action to place itself in such an unequivocal position
that the decree would be mutually binding as yes
adjudicata upon itself and upon the complainant.
Litchenfield v. Goodnow, 123 U. S. 549; Andrews v.
National Foundry & Pipe Works, 76 F. R. 166; Cramer
v. Singer Mfg. Co., 93 F. R., 636; Lane v. Welde, 99
F. R. 286. Having concealed its connection with the
Catskill suit while it was pending it is too late now for
the Diamond Meter Company to set up the final decree
in that case as an estoppel against the complainant.
The record in the Peoria case has no determining
effect. The bill there was filed against the Diamond
Meter Company by the complainant after the decision
in its favor by the Circuit Court in the Catskill case,
and the bill did allege that the Diamond Meter Com-
pany defended that suit and that all questions passed
upon in that suit was res adjudicata as between the
complainant and the Diamond Meter Company. But
this the Diamond Meter Company in and by its an-
swer denied. Thus the averment in the bill was fully
met by a denial in the answer and the question was
left open.
Upon consideration of the whole evidence we concur
in the conclusion reached by the Court below and
accordingly the decree overruling the plea and grant-
ing a preliminary injunction is affirmed.
Filed June 9, 1905.
UNITED STATES OF -
SCT.
I, WILLIAM. H. MERRICK, Clerk of the United States
Circuit Court of Appeals, for the Third Circuit, do
hereby Certify the foregoiug to be a true and faithful
copy of the original opinion filed June 9, A. D. 1905,
in the case of Jefferson Electric Light & Power Co.,
Appellant v. Westinghouse Electric and Manufacturing
Co., Appellee, on file, and now remaining among the
records of the said Court, in my office.
In Testimony Whereof, I have hereunto
subscribed my name and affixed the
• seal of the said Court, at Phila-
[SEAL.] delphia, this 14th day of June, in
the year of Our Lord one thousand
mine hundred and five and of the In-
dependence of the United States the
One hundred and twenty ninth.
WM. H. MERRICK,
Clerk U. S. Circuit Court of Appeals,
Third Circuit.
[27799]
UNIVERSITY OF MICHIGAN
O
7318 O534
3 9015