Board of Trade v. Tucker

221 F. 305, 137 C.C.A. 255, 1915 U.S. App. LEXIS 1331

• Court: Court of Appeals for the Second Circuit
• Decided: January 12, 1915
• Docket: No. 113
• Status: Published

Opinion

LACOMBE, Circuit Judge.

[1] The decree for injunction was justified under the decision of the Supreme Court in Board of Trade v. Christie, 198 U. S. 236, 25 Sup. Ct. 637, 49 L. Ed. 1031. It was not appealed from, and the right to issue the injunction is not involved in the appeal now before us. The injunction prohibited defendant from obtaining, using, distributing, etc., “the quotations of complainant, or any of them,” until he shall have acquired the right to receive said quotations:

(a) By contract or purchase from complainant;

(b) With, complainant’s consent from some telegraph company authorized by complainant to distribute said quotations; or

(c) Under a judgment or degree against complainant in a court of competent jurisdiction.

There is no proof that defendant received complainant’s quotations in either of the three ways above indicated.

It is asserted that many of the quotations, which defendant used and distributed, he obtained from some source other than those which complainant sought to protect by this injunction. That circumstance is unimportant, because as to very many of the quotations, which he used and distributed, there is a concession on the brief of his counsel which makes it unnecessary to discuss the testimony. It is there conceded that defendant admitted that he employed a man to visit the office of another broker, who, under a contract with complainant, of the sort considered in the Christie Case, supra, had what is known as the “continuous quotation service.” When quotations thus received by the broker were posted on the blackboard in his office, defendant’s employe noted the last quotation on each option and then telephoned it to defendant, who used and distributed the quotation thus telephoned. After an interval of 10 minutes, defendant’s employé noted and telephoned another quotation, which defendant similarly used and distributed.

'Much is made in argument of the phrase “continuous quotations.” This phrase is defined in the contracts which complainant makes with its subscribers as meaning “every service of quotations wherein the price of any commodity shall be quoted oftener than at intervals of 10 minutes.” It is contended that the injunction must be confined to “continuous quotations” only. But the injunction says nothing about “continuous quotations”; on the contrary, it expressly restrains the use of “the quotations of complainant, or any of them.” Certainly each item that defendant’s employe saw written on the board, mentally noted, and telephoned to defendant was a quotation of complainant sent by it to the subscribing broker, who posted it in his office under contract with complainant. Moreover, so far as the record shows, all the quotations which the various subscribing brokers received and posted on their blackboards were the “continuous quotations” defined in their contracts. Each of these quotations was one item of the continuous quotations; it cannot be said that some of them were and some of them were not. As continuous quotations all of them are covered by the broker’s contract and protected by its terms. The defendant cannot change them from continuous to noncontinuous quotations merely by noting and using them only at 10-minute intervals.

[2] Under the federal decisions, especially the Christie Case, supra, the posting of these quotations on a blackboard in the office of a subscribing broker is not the sort of publication which will terminate complainant’s property right in them. Violation of the injunction is abundantly proved.

[3-5] Referring now to complainant’s appeal: The proceeding to punish for contempt was civil, not criminal, and Judge Hazel correctly held that a dual punishment should not be imposed, but one simply directed towards making good to complainant the loss it had sustained because of defendant’s disobedience of the order. In this case, as in very many others, it is not possible to assess any particular sum of money which will represent complainant’s business loss. It is well settled, however, in such cases, that the court may undertake to reimburse complainant for the expense to which it has necessarily been put in enforcing the disregarded order of the court. That does not mean, however, that the sum should be so large as to cover extravagant disbursements. It is a matter resting in the discretion of the District judge, and his action will not be disturbed, unless such discretion has been abused. In this case we might, if the matter had come before as in the first instance, have fixed some larger sum; but we cannot find that there has been any abuse of discretion in assessing the amount at $1,800.

[6] We think, however, that complainant was entitled to the taxable costs of the proceeding, and should be allowed to include that amount in the order. This additional sum is not to be added to the fine, so as to be collectible by a body execution; it will merely be a money judgment, to be collected in the usual way.

With this modification, the order is affirmed. Costs of this appeal to complainant.