Western Willite Co. v. Trinidad Asphalt Mfg. Co. (32 F.2d 487, 1929)

STONE, Circuit Judge.

In March, 1924, Trinidad Asphalt Manufacturing Company (appellee herein) entered into separate contracts with the city of St. Louis for the paving of Pendleton avenue and of Meramee street. Each of those contracts required the paving to be in accordance with the Willite process. This was a process covered by letters patent 1,190,615 and consisted, generally speaking, of a mixture of asphaltic binder, sulphate of copper and a’ filler of finely ground soil. Mixtures according to this process are used for the hinder course and the top wearing surface of ■ pavements, being superimposed on a base of concrete or other substance. Appellant, 'Western - Willite Company, is an associate licensee with the Missouri Willite Company for territory including St. Louis, Mo. Appellee proceeded to make this mixture at its own plant and to lay the mixture, thus prepared-in paving the above streets. This disregard of the above patent rights resulted in an action by appellant and its associates against appellee for infringement of the patent. During the pendency of that -action, a temporary injunction was issued enjoining appellee generally from manufacturing, using or selling any products covered by the above patents and particularly from the manufacture and use on Meramee street “of an asphaltic paving mixture such as is specified as the Willite process asphaltic pavement.” A condition in granting this injunction was a bond for $25,000 “conditioned upon the payment by plaintiffs of such costs and damages as may be incurred or suffered by any party who- may be found to have been wrongfully enjoined or restrained by said injunction.” The bond was given. Faced (under the injunction) with the situation of defaulting on its contract or of securing the mixture from plaintiffs, appellee elected to do the latter and purchased the mixture necessary for the paving of Meramee street. The result of the infringement suit -was that the patent was held invalid. 16 F.(2d) 446 (C. C. A.). -After such determination, the Trinidad Company filed its motion, later amended, for allowance of damages on the injunction bond. These motions claimed, as damages under the bond, the difference in cost of production by appellee and the price paid to appellant, haulage and some other minor items. - The- matter w