inquiry as to damages. It was held that the law would not presume that the plaintiffs would have sold the amount of goods sold by the defendant; but the burden of proof was on the plaintiffs to show special damage by loss of custom, or otherwise. The remarks of the court have an important bearing on the subject of remote or contingent damages. "How can the court assume that the persons who bought what the plaintiffs aver were inferior articles, at an inferior price, would necessarily, if they had not done so, have bought the superior articles at the higher prices." In a case1 where there was evidence that persons were, by false statements of the defendants' agent, induced to leave the plaintiffs' coach, and to go in that of the defendants', that was held to be a fraud on the plaintiffs, and a violation of their rights, for which an action would lie, without proof of actual or specific damages; and that the damages should not be confined to the loss of such passengers as the plaintiffs could prove had actually been diverted from their coaches to those of the defendants; but that the jury would be justified in making such inquiries as to the loss of passengers and injury sustained by the plaintiffs as they might think were warranted by the whole evidence in the case. When it was stated in the declaration, and proven on trial, that the defendants had obtained some of the plaintiff's wrappers, and used them to palm off inferior articles-metallic hones for sharpening razors, &c. as the manufacture of the plaintiff, Denman, C. J., stated to the jury that even if the defendants' hones were not inferior, the plaintiff was entitled to some damages, inasmuch as his right had been invaded by the fraudulent acts of the defendants. The jury, having found for the plaintiff, with one farthing damages, stating that they thought the defendants' hones were not inferior to the plaintiff's, it was held, in banc, that the act of the defendants being fraud upon the plaintiff, even if it occasioned him no specific damage, it was still, to a certain extent, an injury to 1 Marsh v. Billings, 7 Cush. 322. his right. This case makes it clear and conclusive that a plaintiff may recover without proof of special damage.1 § 506. Election of Remedies. - He whose rights are infringed has his election of remedies. He may proceed in equity for the profits the defendant has made, or he may sue at law for the loss he has suffered. § 507. In the first case, if the defendant has realized no profit, there can be no recovery; in the second, he may recover the damage he has sustained, whether the defendant has made any profit or not. He may treat the infringer who illegally appropriates an invention to his own use, making profit thereby, as his trustee in respect of such profits, and compel him to account therefor in equity. In such case, the plaintiff may recover those profits, be they more or less; and he can recover no more, however great the damages may be which the alleged interferer has occasioned. If, on an accounting, it should appear that the defendant used the invention so unskilfully that he realized no profit, there could be no recovery. On the other hand, the patentee may sue at law for the damages which he has sustained, and those damages he is entitled to recover, whether the defendant has made any profits or not.2 § 508. Intent. A wrongful or malicious intent, express or, implied, is an essential and prominent element in determining the amount of damages to be awarded. The general rule is that it is of no consequence whether the defendant intended. the injury or not. In civil actions, the law does not so much regard the intent of the actor as the loss or damage of the party suffering. Yet in actions for the invasion of patentrights, the intent is generally considered, as in a case where the maker of a machine appears in truth to be ignorant of the existence of the patent and does not intend any infringement; 1 Blofield v. Payne, supra. See also Rogers v. Nowill, supra. 3 Johnson, J., in Auburn, &c. v. Douglass, 12 Barb. 557. and though this will not altogether exonerate him, it will tend to mitigate the damages.1 § 509. Special Damages. The right to recover special damages, i.e., damages additional to the amount of direct and immediate injury, often depends upon the allegations in the writ. Such damages must be specially alleged, solely for the purpose of giving the defendant notice of the plaintiff's demand with regard to them; while, as before said, he is held to take notice of such damage as is the necessary consequence of his act, without any special allegation, and without any statement of the particular circumstance of aggravation. It is rarely in actions for the violations of trade-marks that the right to such damages can be fairly established. § 510. Plaintiff's Negligence. In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative, and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor's field unlawfully, and leave the gate open; if, before the owner know it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner see the gate open and pass it frequently, and wilfully or obstinately, or through gross negligence, leave it open all summer, and cattle get in, it is due to his own folly. So, if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damages. But if the owner suffer the window to remain unrepaired a great length of time after notice of the fact, and his furniture or pictures, or other valuable articles, sustain damage, or the rain beat in and rot the windows, the damage would be too remote.2 § 511. We may apply the doctrine thus laid down by the eminent jurist to the case of one who stands by, and calmly 1 Bryce v. Dorr, 3 McLean, 583; Whittemore v. Cutter, 1 Gallison, 429; Jones v. Pearce, Webster's Pat. Cases, 125; Hogg v. Emerson, 11 How. 587–607. See also Lowell v. Lewis, 1 Mason C. C. 182. 2 Shaw, C. J., in Laker v. Damon, 17 Pick. 284. sees another pirate his mark. He may sustain many injuries that by prompt action he might have avoided. Legal relief, at best, is but part indemnity. The law in fact aims not so much at satisfaction as at a division of the loss. - § 512. After a review of the few cases bearing directly upon the question under discussion, that is, the true principle for the measuring of damages in trade-mark infringements, we relapse into uncertainty, and despair of finding any nicelyadjusted scheme to solve the problem. The infringement of a mark at one time may be destructive of the trade of the true proprietor; and at another time, and under similar circumstances, it may be comparatively harmless. An article of trade may have an ephemeral popularity which is an immediate fortune to its producer, or it may be a thing of limited sale, yet of continuing demand. All the surrounding facts must therefore be weighed by the jury, or referee, as the case may be, and although of as little account singly as the dust in the balance, yet in the aggregate they may cause the scale to kick the beam. Look at such a case as Gillott v. Esterbrook, and the power of the grouping of seemingly insignificant minutiæ, to make a convincing proof of fraudulent intent, will be plainly perceptible. § 513. In many classes of cases of injury to property, the estimate of damage can easily be made, either by the value of an article destroyed or wrongfully converted, or by a previous liquidation. Thus for the infringement of a copyright, the legislature has laid down certain rules to meet all cases; but when we turn to infringements of patent-rights, and attempt to reason from analogy, we find great difficulty. In Conover v. Rapp,2 Ingersoll, J., said that the plaintiff is entitled to such actual damages as he has sustained; and that the actual damages are the profits which the defendant has made. This was a case of infringement of a patent for a machine for splitting wood; and evidence having been given that the defendant used 2 4 Fisher, 57. 1 47 Barb. 455. 390 the machine, and also of the amount of wood split by him during each day, the plaintiff calculated from that what the actual damThe court instructed the jury that a plaintiff is not ages were. able, with the utmost accuracy, in cases of that kind, to give the exact amount of damages that he has sustained. It is beyond his power. He does the best he can. If he is wrong in his calculation, the defendant can put him right. The defendant knows the profit he has made. Therefore, said he, the jury must take the evidence as it is, and come to the best conclusion they can as to what are the actual damages. The jury having found a verdict for the plaintiff, the defendant moved for a new trial before Mr. Justice Nelson. He delivered the opinion that there was no error in the charge of the judge, and denied the motion. Sawyer, J., said, in Carter v. Baker, that the profits made by the defendants are proper to be given as a part of the damages; and that the jury might take into consideration other losses caused by the infringement, beyond those profits actually received by the defendants. In a late patent case (Cowing v. Rumsey et al.2) Woodruff, J., laid down the rule somewhat more specifically, the true rule being what the plaintiff has lost, and not what the defendant has gained. He said that, "in such an action, it is precisely what is lost to the plaintiff, and not what the defendant has gained, which is the legal measure of the damages to be awarded. Under this rule it may often be entirely proper to prove the profits of the ordinary use of the invention, and the demand existing in the market, evidenced by sales made, and so, as an element of consideration, show the profits realized by the defendant, in order to furnish to the jury all proper materials for determining how much the plaintiff has lost. But I apprehend that they are to answer the precise question, How much loss has the plaintiff sustained by reason of the defendant's infringement? . . . There may be cases so peculiar that there are no means of proving the plaintiff's loss without proving the defend14 Fisher, 404. 2 Ibid. 275. |