
    DE FOREST RADIO TELEPHONE & TELEGRAPH CO. v. STANDARD OIL CO. OF NEW YORK.
    (Circuit Court of Appeals, Second Circuit.
    November 14, 1916.)
    No. 71.
    Contracts <&wkey;83 — Sales—Consideration—Action fob Price — Injunction' Against Use.
    The contract by which plaintiff sold to and installed for defendant, wireless apparatus for immediate use is abrogated, and defendant relieved of liability for price; it having by injunction in infringement suit been deprived of the use, which plaintiff cannot furnish, unless the injunction order affirmed by the Circuit Court of Appeals be vacated, and' defendant having returned the apparatus.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 388-398; Dec. Dig. <&wkey;83.]
    In Error to the District Court of the United States for the Southern-District of New York.
    Action by the De Forest Radio Telephone & Telegraph Company against the Standard Oil Company of New York. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Joseph S. Frank, of New York City, for plaintiff in error.
    Morton E. Fearey and Joseph M. Cormack, both of New York City, for defendant in error.
    Before COXE, ROGERS, and HOUGH, Circuit Judges.
   COXE, Circuit Judge.

This cause comes here on writ of error to' review a judgment in favor of the Standard Oil Company, which judgment dismissed the complaint of the De Forest Company. The action was brought to recover $10,000, the purchase price of five sets of wireless apparatus installed on the defendant’s vessels. The defense is that the apparatus so installed is an infringement of patents belonging to the Marconi Wireless Company, and that the defendant herein has been enjoined from using the apparatus and, pursuant to the command of the injunction, has stopped using the apparatus and has returned it to the plaintiff with the exception of some of the heavier parts which the defendant retained at the plaintiff’s request. The order enjoining the use of the apparatus was affirmed by this court. Marconi Wireless Tel. Co. v. De Forest R. Tel. & Tel. Co., 225 Fed. 373, 140 C. C. A. 637.

The situation seems perfectly clear from a common sense point of view. The defendant installed the wireless on its boats for immediate use; it has been deprived of that use for two years and the prospect of securing it in the future is, to say the least, exceedingly doubtful. The defendant is asked to pay for something which it has never received and which it is prohibited from using. In such circumstances it seems to us that the contract is abrogated and the defendant should not be required to pay with the remote prospect of recovering the amount so paid or the use of the apparatus at sometime in the distant future. The defendant contracted for a wireless installment on each of its five boats and there was a warranty, express or implied, that it) should have a right to use what it purchased. It has not received what the plaintiff agreed to furnish and what it cannot furnish except sometime in the future and then only in the event that the injunction order affirmed by this court is vacated.

We think the defendant was fully justified in refusing to pay in such circumstances. The judgment is affirmed with costs. 
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