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PENN-ALLEN CEMENT CO., INC. v. PHILLIPS &

SUTHERLAND.56

(Supreme Court of North Carolina. November 16, 1921.)

No. 413.

1. APPEAL AND ERROR, KEY No. 122—-FRAGMENTARY APPEALS NOT ENTERTAINED.

The Supreme Court will dismiss an appeal from an adjudication that plaintiff recover of defendant a certain amount on two causes of action, and that the cause be retained for trial as to a third cause of action, without

passing on a counterclaim. 2. APPEAL AND ERROR, KEY No. 801 (4)—SUPREME COURT MAY EXPRESS OPINIOS

on MERITS ON DISMISSAL OF APPEAL.

On dismissal of a fragmentary appeal, the Supreme Court may, in its discretion, express its opinion upon the merits so far as it may be a guide

in further proceedings in the court below. 3. APPEAL AND ERROR, Key No. 916 (1)-MATTERS IN ANSWER ADMITTED TO 2

TRUE BY JUDGMENT ON PLEADINGS.

Judgment having been rendered for plaintiff on the pleadings, all that is set up in the answer is, for the purposes of an appeal, admitted to be true. 4. MONOPOLIES, KEY No. 23—No RECOVERY ON CONTRACT BY REASON OF DISCRIMI

NATION.

Where seller of cement violated act of Congress, October 15, 1914, sec. 2 (U. S. Comp. Stat. sec. 8835b), by discriminating against buyer as to the price, the contract was unlawful, and seller was entitled to recover, if at all, only upon a quantum meruit for cement delivered and accepted. Appeal from Superior Court, Scotland County; Ray, Judge.

Action by the Penn-Allen Cement Co. (Inc.) against Phillips & Sutherland. From act of court in adjudging that plaintiff recover certain sums on two causes of action and retaining a third cause for trial, defendants appeal. Appeal dismissed.

This is an action to recover the price of four carloads of cement. There are three causes of action stated in the complaint. On September 17, 1920, the plaintiff shipped the defendants one carload. 231 barrels of cement, at $6.09 per barrel, less freight and war tas. making $1,039.03, which amount was paid to the plaintiff by the defendant. On September 18, 1920, the defendants sent the plaintiff a telegram to ship them two more carloads of 231 barrels each, which were received by the defendants, for which the plaintiff now seeks to recover $2,079.87 in his first cause of action. "On September 27, 1920, the plaintiff shipped another carload of cement, which contained 231 barrels, which at the same price amounted to the sun of $1,039.26, and is the plaintiff's second cause of action, and another carload of 289 barrels, which the defendants refused to accept, was the third cause of action. The defendants based their refusal upon the ground that the shipment of 289 barrels was in excess of the 231 barrels which they had ordered, and, further, because they allege that they had ascertained that the plaintiff had discriminated in the

This case is reported in 109 $. Ę. 257.

price of said cement, in that it had charged the defendants $1.10 per barrel more for said cement than it had charged other purchasers within the United States, in violation of section 2, chapter 323, 38 United States Statutes, which was illegal, and they set up and pleaded as a counterclaim a rebatement of $1.16 on each of the first four carloads, and that by reason of said illegal price and the excessive quantity in the last shipment they had refused to receive the last carload, and pleaded as a counterclaim the $460.09 as freight and war tax paid by them on said last carload.

The defendants also pleaded as a counterclaim threefold damages by reason of the overcharge of $1.10 per barrel on said four carloads, making a total of $2,142.57, and threefold the damages of $28.90 per month from October 15 for storage on the carload refused.

The court adjudged that the plaintiff recover of the defendant $2,079.87, with interest thereon from October 17, 1920, on the first cause of action, two carloads, and the further sum of $1,039.26, with interest from October 27, 1920, on the second cause of action, and retained the cause for trial as to the third cause of action. Appeal by defendants.

Cox & Dunn, of Laurenburg, for appellants.
Walter H. Neal, of Laurenburg, for appellee.

CLARK, Circuit Judge:

[1] The court entered judgment upon the pleadings in favor of the plaintiff upon the first and second causes of action, and “ retained the cause for trial as to the third cause of action stated in the complaint,” and took no action as to the counterclaim pleaded by the defendants.

This court has uniformly held that it will not entertain fragmentary appeals.

The court will not entertain appeals brought up in a fragmentary manner. The whole case must come up on appeal. (Hines V. Hines, 84 N. C. 122; Commrs. v. Satchwell, 88 N. C. 1.; White v. Utley, 94 N. C. 511; McGehee v. Tucker, 122 N. C. 186, 29 S. E. 833.) An appeal from the ruling upon one of several issues will be dismissed. The trial and appeal must be upon the whole case. (Hines v. Hines, 84 N. C. 122; Arrington v. Arrington, 91 N. C. 301.)

The trial of au action should embrace and determine all the matters at issue, 80 that a final judgment may be entered, and any errors committed may be corrected upon one appeal. [258] Fragmentary appeals will not be tolerated. Therefore, in an action to recover land, with damages for its detention, where the issue as to the title and right to possession was tried, but the issue as to damages was reserved to be afterwards tried if it should be adjudged that the plaintiff was entitled to recover, the Supreme Court would not entertain an appeal for reviewing alleged errors on the trial of the issues submitted. (Hicks V. Gooch, 93 N. C. 112; Rodman v. Calloway, 117 N. C. 13, 23 S. E. 37.)

Fragmentary appeals will not be allowed when the subject matter could be afterwards considered and error corrected without detriment to the appellant. But this rule does not apply to interlocutory orders, the granting or refusal of which may produce present injury or loss. (Davis v. Ely, 100 N. C. 283, 6 S. E. 239; Guilford v. Georgia, 109 N. C. 310, 13 S. E. 861.)

The later decisions have all followed this rule, among them Shelby v. Railroad (147 N. C. 537, 61 S. E. 377); Moore v. Lumber Co. (150 N. C. 261, 63 S. E. 953); Smith v. Miller (155 N. C. 242, 71 S. E. 353); Shields v. Freeman (158 N. C. 123, 73 S. E. 805); Chadwick v. Railroad (161 N. C. 209, 75 S. E. 852); Walker v. Reeves (165 N. C. 35, 80 S. E. 885); Chambers v. Railroad (172 N. C. 555, 90 S. E. 590); Joyner v. Reflector (176 N. C. 277, 97 S. E. 44); Headman v. Commrs. (177 N. C. 261, 98 S. E. 776), and many other cases besides those disposed of by P. C., the ruling being so well settled.

In Joyner v. Reflector Co. (176 N. C. 277, 97 S. E. 44), Allen, judge, said:

This appeal is premature and must be dismissed, because the order appealed from disposes of only one question of many arising upon the record (Hintos 5. Ins. Co., 116 N. C. 222; Richardson v. Express Co., 151 N. C. 61); but upon dis missal, the exceptions, duly taken, are preserved to be passed on, upon appesi from the final judgment. (Gray v. James, 147 N. C. 141.)

The two latest cases probably are Hoke, judge, in Lipsitz v. Smith (178 N. C. 100, 100 S. E. 247) and Thomas v. Carteret (180 N. C. 111, 104 S. E. 75), where Brown, judge, says:

We are of opinion that this appeal is premature, and under the rules of the court it must be dismissed ex mero motu. It is well settled by numerous de cisions that this court will not entertain premature or fragmentary appeals. (Cameron v. Bennett, 110 N. C. 277; Milling Co. v. Finley, 110 N. C. 412.)

The defendants should have noted their exceptions and have brought up the case when a final judgment was entered. Of course until final judgment was entered no exception could issue, for other. wise the plaintiff might have collected on its judgment while defend. ants' demand by way of counterclaim was left undetermined. The costs of the appeal will be divided between the parties.

[2] Though the case must go back, the court may in its discretion, as it sometimes has done, express its opinion upon the merits so far as it may be a guide in the next trial. (Milling Co. v. Finlay, 110 N. C. 412, 15 S. E. 4; State v. Wylde, 110 N. C. 503, 15 S. E. 5, and citations to those two cases in Anno. Ed.)

[3, 4] Judgment having been rendered upon the pleadings, all that is set up in the answer is for the purposes of the appeal admitted to be true. United States Compiled Statutes, section 8835b (act October 15, 1914, ch. 323, section 2) forbids“ discrimination in price between purchasers of commodities, where the effect may be to lessen competition or tend to create a monopoly," as unlawful, and provides:

It shall be unlawful for any person engaged in commerce, in the course of such conimerce, either directly or indirectly to discriminate in price between different purchasers of commodities, etc.

This shipment was from Penn-Allen, Pa., to the defendants in Scotland County, and the judgment upon the pleadings admits the allegation in the answer for the purposes of this appeal that there was a discrimination and overcharge against the defendants of $1.10 per barrel. The contract was therefore unlawful, and at most the plaintiff was entitled to recover the amount charged, deducting $1.10 per barrel upon the two carloads set out in the first cause of action and on the carload in the second cause of action, for which they are liable, not upon the contract, which is unlawful, but upon a quantum meruit, having accepted the shipment. The judgment rendered upon the pleadings on the first and second causes of action is erroneous and is set aside. This matter will be open to both parties as res nova on the new trial.

As to the third cause of action, the defendants claim that they are not liable both by reason of the carload, 289 barrels, being in excess of the usual carload 231 barrels ordered, and by reason of the $1.10 per barrel excess in price. No judgment having been rendered as to this cause of action, the allegations in the answer are not taken to be true, as in regard to the first and second causes of action, and we have nothing to review.

As to the counterclaim for threefold damages for the cost of the storage of the fifth and last carload and the threefold damages of $2,147.57 by reason of the overcharge of $1.10 per barrel on the other four carloads which the plaintiff claims under the provisions of the United States Compiled Statutes of 1916, section 8829, being section 7 of the Antitrust Act of July 2, 1890, the plaintiff contends that the defendants can not recover the treble damages by counterclaim pleaded in an action to collect the purchase price, but must pay for the goods and bring an independent action in the Federal [259] court under Compiled Statutes, section 8835d (act October 15, 1914, ch. 323, sec. 4). This matter also has not been passed upon by the court below, and there is nothing for us to consider.

The appeal must be dismissed, and upon the trial of the whole action an appeal will lie from the final judgment upon the whole controversy.

Appeal dismissed.

UNION ELECTRIC WELDING CO. v. CURRY ET AL.57

(United States Circuit Court of Appeals, Sixth Circuit. February 17, 1922. On application for rehearing, April 15, 1922.)

No. 3572

1. PATENTS, KEY No. 322—DIFFERENT FORMS OF INFRINGING ARTICLE MAY BE

INCLUDED IN ACCOUNTING.

Where defendant, before an interlocutory decree for infringement, made and sold two forms of the infringing tool, one with a handle for hand use, and the other to be secured to a bench, but equivalent in mode of operation, both may be included in an accounting for profits, though only the

hand tool was mentioned in the evidence. 2. PATENTS, KEY No. 318(3)-METHOD OF COMPUTING PROFITS OF INFRINGEMENT.

Under suitable conditions, profits of infringement may be computed by subtracting the total investments in the infringing business from the total receipts of its conduct and liquidation, with allowance for profits or losses of

any relatively small noninfringing departments. 3. PATENTS, KEY No. 318(6)—RIGHT OF INFRINGER TO OFFSET LOSSES AGAINST

PROFITS, BY PERIODS.

While it is often proper, on an accounting for infringement, to refuse to deduct losses in one period from profits made in another, there is no invariable rule that each calendar year must stand by itself, and each case must be determined on its own facts. Losses incurred by an infringer during the first year, while establishing its business and trade from which profits were afterward made, held properly deductible from such profits on an accounting.

* This case is reported in 279 Fed. 465; certiorari denied by Supreme Court, 260 U. S. 727.

110600°-30- -62

4. PATENTS, KEY No. 318(3)-INFRINGER HELD ACCOUNTABLE FOR PROFITS Maas

FROM CONTRIBUTORY INFRINGEMENTS.

Where the owner of a patent for a tool for twisting wire ties, used for tying bags of cement, etc., and the maker of an infringing tool, both followed the same method of disposition, each furnishing the tool without profit to users, and making its profit from the sale to them of ties which could be used only with its own tool, and without which the tool could not be used, such sales by the infringer held a contributory infringement, and on an accounting the

infringer held chargeable with the profits made on the ties. 5. PATENTS, KEY No. 318(3)-ON ACCOUNTING FOB PROFITS OF INFRINGEMENI,

STANDARD OF COMPARISON RULE HELD NOT APPLICABLE.

The fact that, since a decree finding infringement by defendant of a patent for a tool, a noninfringing tool, not previously on the market, has been found which successfully competes with the patented tool, held not to affect the measure of defendant's liabiltiy for profits made from its infringement.

Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, judge.

Suit in equity by John P. Curry and Clifford L. Miller against the Union Electric Welding Co. From the final decree, defendant appeals. Modified and affirmed. (See also 230 Fed. 422, 144 C. C. A. 564.)

Chas. E. Brock, of Cleveland, Ohio (Almon Hall, of Toledo, Ohio, on the brief), for appellant.

Samuel Owen Edmonds, of New York City, and Wilbur Owen, of Toledo, Ohio, for appellees.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges. [466] DENISON, Circuit Judge:

Upon a former appeal, this court held that the patent involved (Curry, No. 908649, January 5, 1909, for a “ tool for twisting wire ties") was valid and infringed. (Curry v. Union Co., 230 Fed. 422. 144 C. C. A. 564.) Upon the accounting thereafter had in the court below, the master reported that the defendant's profits from the infringement were $45,147.50, and from a final decree for this amount the defendant again brings the case here.

[1] The tool, which was before the court upon the former appeal as a sample of defendant's infringement, was strictly a hand tool The operator grasped the bag in one hand, and, after adjusting the tie to the neck of the bag and upon the hooks of the tool, seized the tool in the other hand and pulled it away from the bag. By this operation, the tie was twisted. Upon the accounting, it appeared that many of the tools sold by defendant-mostly, if not all, before the decree of this court—had been so-called bench tools, in which the tool had been fastened to a bench, and the operator placed the tie in the hooks of the tool, put the neck of the bag'in position to bear against the slack of the tie, and then pulled the bag away from the tool. Excepting as to this method of operation, the bench tool did not differ from the hand tool, save in some details which made

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