[D0326AAF], Legal Decision, Thomas Charles Munger, U.S. Circuit Court. Nebraska, March 1903
https://edisondigital.rutgers.edu/document/D0326AAF
Transcription
IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. National Phonograph Company, Complaint, v. The Wittman Company, Respondent. No. 97, V. - - - - - - - - - - - - - - - - - - MEMORANDUM OPINION. - - - - - - - - - - - - - - - - - - NUMGER, D. J. This is an application to enjoin the respondent from disposing of certain phonographs and records in violation of a contract between complainant and respondent. The provisions of the contract material to the consideration in this inquiry are in substance that the Company will not sell said articles at less than the price stated in said contract; and it is charged in the bill and established by the evidence that the respondent has violated the contract in this respect by making sales in violation of the agreement. This is sought to be justified on the part of respondent on the ground that complainant first violated the terms of the contract, which violation on the part of complainant absolved the respondent from being further bound by the contract; or, to be stated in another way, that complainant, in asking equity must do equity, and that, having first violated the contract it is not in a situation to ask for the aid of a court of equity. It is clear from the authorities, I think, that complainant is entitled to the relief asked under the terms of the contract, unless it shall appear that the contract was first violated upon the part of complainant, and that by reason thereof complainant cannot invoke the aid of a court of equity for its enforcement in the respect sought in this action. I have carefully read this various affidavits and correspondence offered in evidence, and am not satisfied that respondent has shown a breach of the contract upon the part of complainant. Respondent's claim is that their contract gave them the exclusive right as jobbers within certain territory for a certain period of the time, and that complainant violated this provision of the contract by furnishing the articles to other jobbers within such territory. As stated, I am unable to find from the evidence offered that complainant did give to respondent the exclusive right to job the machines within the territory designated. Such being case, a temporary order of injunction will be granted as prayed, upon complainant executing to respondent a bond to be approved by the Clerk of the Court, with the usual conditions, in the sum of $5,000; such bond to be given within ten days.