— This action was brought to obtain an accounting of sales made, by the defendant of a certain patented article, the patent of which was owned by the plaintiff, and which had been manufactured by the defendant, under an agreement between himself and the plaintiff, and for an injunction to restrain the defendant from manufacturing or selling the patented article in excess of the stock on hand or in process of manufacture January 1, 1895. The complaint alleges, after setting up the contract between the parties, that the defendant has failed and refused to account or make payments under the contract, and continues ami threatens to continue the manufacture and sales of the patented articles, in violation of the contract On the trial, the principal controversy seems to have been as to whether or not the defendant was entitled to manufacture. into certain skirt belts, known as the “Universal Skirt Belt," which was the patented article in question, certain elastic material which had been purchased by the defendant for the purpose of manufacturing the said belt. The court in its decision states :
“The undisputed evidence shows that the total sales during the fifteen months amounted to 487 gross and eleven five-twelve dozen belts. On these the defendant paid the stipulated royalty, and, on the trial of the action, further accounted for his sales "to and including the 30th day of April, 1895. On or about said last-mentioned date, the defendant had on hand 472 seven-twelve dozen manufactured belts and 6,950 yards of elastic, purchased by him exclusively for the purpose of manufacturing said belt. There were no belts on hand on that date in an incomplete or partial state of manufacture."
The decision then states:
. “ Plaintiff contends that the defendant should be enjoined from manufacturing into belts any part of the elastic in question, which, she testifies, is equivalent to between 434 and 435 gross of belts. Defendant, on the other hand, testifies that this elastic is within the .purview of the terms of the agreement, relating to the sale of stock in process of manufacturé, and that, as such, he should be permittéd to manufacture the same, into belts, and sell the same under said agreement."
The decision then continues:
, “1 am of the.opinion that , the, contention of the defendant is right, and that he should be permitted to manufacture the elastic into belts, and dispose of the same under the agreement."
It would thus appear that the defendant had accounted for the sales made by him under the agreement, and that the defendant was entitled to continue to manufacture the belts, or the elastic purchased by'him into belts, and sell the same under the agreement.. There is no evidence that the defendant intended or threatened to manufacture or sell any other belts, except from the elastic so.purchased,, and it would seem, from this decision, that no relief should have been granted .to the plaintiff. Tlius having decided the case in favor of the defendant, however, the court directs, an injunction to be issued, as prayed for in the complaint, the defendant, however, to have leave to sell all.belts manufactured *144and on hand on May 1, 1895, and also to manufacture into belts and sell all elastic which he had on hand on said date, on condition of his being permitted to sell and manufacture said belts and elastic, he to pay, in advance of such manufacture and sale, to the plaintiff, a royalty of three dollars per gross. Judgment was thereupon entered, requiring the defendant, within ninety days, to pay to the plaintiff, not only the royalty upon the belts manufactured and not sold, but also the royalty on ail stock of manufactured belts, and of all elastic to be used in the manufacture-of the said belts, The judgment further provided that, aifcer the payment of the said royalty, and receipt thereof by the plaintiff, the defendant should be at liberty to sell and dispose of the belts in his possession on May 1, 1895, provided, however, said defendant should sell and dispose of all said belts not later than the 1st day of May, 1897, from and after which date the judgment should be* come absolute and unconditional. And the judgment provided that the defendant, his servants, agents, and employees, and all persons acting in his behalf, be permanently enjoined and restrained from manufacturing and selling, or offering for sale, the belts described in the complaint. And this judgment was without costs.
Thus it would seem that, after deciding all of the contested questions in favor of the defendant, a judgment was granted which enjoined the defendant from doing what he never intended, or threatened, or claimed he had a right to do, and added to the contract an entirely new clause, by which a time limit is added to the contract; and the defendant was enjoined from manufacturing and selling the belts after May 1, 1897, when, un-der the contract between the parties, there is no such limit. We think this judgment entirely unauthorized, and that, upon the decision of the court, there should have been judgment for the defendant. There is not a particle of evidence to justify any judgment against the defendant, adopting the decision of the controversy as to the right of the defendant to manufacture into belts the elastic purchased by him prior to the making -of the agreement sued on. The plaintiff does not appeal from the decision of the question in favor of the defendant
The judgment entered should therefore be reversed, and judgment directed for the defendant, with costs of the appeal, in favor of the defendant, and. against the respondent
All concur,