Lion Tractor Co. v. Bull Tractor Co.

TRIEBER, District Judge

(after stating the facts as above). Counsel for appellant insist that the bill ought to have been dismissed for the failure to make W. B. Ewing and D. M. Hartsough parties to this action.

[1] It is a well-established rule in the courts, of the United States that a suit in equity may proceed without tire presence of all proper, or even necessary, parties; only indispensable parties must be joined. “An indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree cannot be rendered in the suit, without injuriously affecting the absent party, or without leaving the controversy in such a situation that its final determination may be inconsistent with equity .and good conscience.” Cella v. Brown (C. C.) 136 Fed. 439, affirmed 144 Fed. 742, 75 C. C. A. 608; Rogers v. Penobscot Mining Co., 154 Fed. 606, 616, 83 C. C. A. 380, 390; O’Neill v. Wolcott Mining Co., 174 Fed. 527, 536, 98 C. C. A. 309, 318, 27 L. R. A. (N. S.) 200; Silver King, etc., Mines Co. v. Silver King C. M. Co., 204 Fed. 166, 122 C. C. A. 402.

[2] It appears from the complaint, and it is also alleged in the answer and the affidavits presented by the defendant at the hearing, that Mr. Ewing had parted with all his right, title, and interest under Mr. Hartsough’s contract to the defendant, and has no further interest in the result of this litigation, except such as he may have as a stockholder of the defendant corporation. Mr. Hartsough has also parted with his interest to the plaintiff. We see no necessity for making them parties, nor can we conceive of any right, title, or interest of these parties that can be affected by a decree in this cause. They are neither indispensable nor necessary parties. ' v

[3] It is next claimed that, conceding that Hartsough bound himself to assign to the plaintiff all his later inventions improving the original invention, which he had assigned to the plaintiff, it would be unenforceable, as there was nothing then in existence to convey, and it would be in the nature of a mortgage on his future skill and ingenuity. But, as was held by Mr. Justice Bradley in Aspinwall Mfg. Co. v. Gill (C. C.) 32 Fed. 697, such a contention is not tenable; that a patentee has the right, when he sells or assigns his patent for a valuable consideration, to bind himself to assign to his vendee any patents that he may obtain for improvements of the patented article, which he sold. See also Reece Folding Machine Co. v. Fenwick, 140 Fed. 287, 72 C. C. A. 39, 2 L. R. A. (N. S.) 1094. And this is certainly the law, when a part of the consideration for the assignment is his employment for that purpose by the vendee, and the improvements are invented while thus employed.

It is also claimed that the evidence did not justify the granting of the interlocutory injunction. The contract between Mr. Ewing and Mr. Hartsough, under which the defendant now claims, shows that Ewing had “examined the contracts conveying said rights to the EyonsKnoll Investment Company and the Bull Tractor Company, and agreed that all expenses necessary to defend our joint rights in and to the above tractor, patents, and improvements, its manufacture and sale, shall be borne at the sole charge and expense of said corporation as above organized,” meaning the corporation to be organized by Ewing. The defendant is therefore chargeable with notice of the contents of the contract between Hartsough and Eyons-Knoll, the plaintiff’s grantors.

[4] As to the other matters put in issue by the answer the evidence is conflicting. When this is the case “the granting or dissolution of an interlocutory injunction rests in the sound judicial discretion of the court of original jurisdiction, and, when that court has not departed from the rules and principles of equity established for its guidance, its orders in this regard may not be reversed by the appellate court without clear proof that it abused its discretion. * * * It is to the discretion of the trial court, not to that of' the appellate court, that the law has intrusted the power to grant or dissolve such an injunction.” American Grain Separator Co. v. Twin City Separator Co., 202 Fed. 206, 120 C. C. A. 644; Magruder v. Belle Fourche Valley Water Users Association, 219 Fed. 72, 135 C. C. A. 644; Kansas City v. Sanitary Street Flushing Machine Co., 224 Fed. 964, 140 C. C. A. 456. A careful reading of the testimony fails to show any departure from this well-established rule, and clearly no such abuse of discretion as would justify this court to set aside its findings upon this appeal.

It is also assigned as error that the order for the temporary injunction does not state specifically, and does not describe in a reasonable detail, what the defendant is enjoined from doing. The order enjoins the defendant from “manufacturing, using, selling, or offering for sale any gasoline traction engines or tractors embodying the construction and combinations set forth and claimed in the application for letters patent of the United States No. 865,463, filed by D. M. Hartsough on the 7th day of October, 1914.” And this, it is claimed, is not a compliance with section 19 of the Clayton Act of October 15, 1914 (38 Stat. 730, 738, c. 323).

Whether the order complies strictly with the requirements of that act we deem it unnecessary to determine, as this objection was not made in the court below, but was raised for the first time in this court. Had the attention of the trial judge been called to that fact, we have no doubt that he would have considered it, and, if necessary, followed the statute literally. Besides, this is an interlocutory injunction, and, when the case is returned to the court below, that court can amend its order, if deemed necessary.

The decree granting the interlocutory injunction is affirmed.