Page:Federal Reporter, 1st Series, Volume 9.djvu/57

 42 FEDERAL RBPOBTEB. �ble plaintiffs to recorer under it.all its allegations for the purpose of this demurrer being admitted. The petition shows the sale to J. S. Sullivan & Co. to have been made January 15, 1878. The inju- ries eomplained of began January 1, 1880. After this sale to J. S. Sullivan & Co. any person to whom they should grant the right to use the Still tree would be protected thereby, and plaintilis' remedy would be by suit against Sullivan & Co. for the royalty. It follows, therefore, as the plaintiffs show, that J. S. Sullivan & Co. have the right to use their invention and authorize other persons in the United States to use the same ; that in order to make a prima facie case of liability against a person for using the StUl patent it must afiSraia- tively appear that such person is not using, it under the authority or license of J. S. Sullivan & Co. Does the petition show this ? The raie to be applied isthat the pleadinga will be oonstrued most strongly against the pleader. , i �It is insisted by defendants that this is.a necessary allegation, and I am of the same opinion; because, if these defendants are working under Sullivan & Co. and using Still's patent, then, of course, the only remedy plaintiffs ean have is by suit against Sullivan; & Co. for their royalty. If defendants are not working under Sullivan & Co. and are infringing plaintiffs patent, then plaintiffs would be enti- tled to their remedy against them; hence the necessity of the alljega- tion that they are not authbrized to use plaintiffs' invention by J. S. Sullivan & Co. It is alleged that they are not using it uud,er authority or by virtue of the contract, between plaintiffs aiid J. S. S ujlivan & Co. ; but that is not alleging that they are not uaing it under or ;by virtue of a contract made t>y defendants, with J. S. Sullivan & Co. The demurrer, therefore, upon this point is sustained. �The thirteenth paragraph cannot be relied upon as Connecting the J. S. Sullivan Saddle-tree Company with the J. S. Sullivan & Co. to whom plaintiffs sold, because it states that certain peraons herein- after mentioned. This is inferentially saying that they have not been mentioned before. But suppose it did, and the circular should be regardcd as part of the petition, and that Sullivan & Ccwere in fact the Sullivan Saddle-tree Company. What then foliota? The most that oould be said. would, ,be that the saddle-tree company were authorizing these defendants io use, the Moody tree, and in that event, if the Moody tree is the one inveiited by plaintiffs, then J. S. Sullivan & Co. are responsible to plaintiffs for the royalty, and their remedy is against them ani not against the defendants in this suit. If ��� �