
    No. 661
    SAFE CABINET CO v. GLOBE WERNICKE CO.
    Ohio Appeals, First District, Hamilton County
    No. 5773.
    June 15, 1923
    91. COMMERCE.
    Unfair Completit'ion (363) — Defendant must account (6) for all profits unlawfully gained — (1) Patents (285) — (2) Interest (221) allowable — (3) Taxing accountant’s expense as costs(116).
   ALLREAD, J.

Epitomized Opinion

Action upon a charge of unfair trade and com™ petition in the manufacture and sale of a certaim steel cabinet safe similar-to one manufactured and sold by plaintiff. On appeal from decree for defendant in Common Pleas the Court of Appeals awarded an injunction against defendant and appointed a Master Commissioner to state an accounting. On error proceedings to the Supreme Court the judgment of the Court of Appeals was affirmed with modifications. At request of plaintiff an order was mqde directing Ernst & Ernst, expert accountants, to state an account of the profits realized by defendant. Subsequently, at request of defendant, Roden & Hart, public accountants, also made report upon said accounting.

The Master then proceeded to state the account, finding in favor of plaintiff in the amount of $113.526.18. The case is now before this court upon exceptions of both plaintiff and defendant to certain features of the accounting and the motion of plaintiff to confirm the report. The differences arise as to three items: (1) Claim of defendant for $17,778 45 of legal expenses in patent litigation; and (2) $30,464.93 as interest on capital invested; and (3) plaintiff’s claim to have the costs of Ernst & Erns"’s accounting taxed as costs i nthe case. All these were disallowed by the Master. Held:

Attorneys — Gideon C. Wilson, James L. Steuart, for plaintiff; Judson Harmon, Robert H. Parkinson, for defendant.

1. The claim for legal expenses in patent litigation is foreign to the subject matter of this action and was properly disallowed.

2. The item for interest on invested capital should have been allowed. It is apportionable general and overhead expenses and should be credited to defendant.

3. Since defendant also employed a firm of accountants it is not eouitable to t?'- -costs the expense) of the Ernst & Ernst accounting.

As above modified the report of the Master Commissioner will be confirmed.  