Lemoine v. Gauton

2 E.D. Smith 343

• Court: New York Court of Common Pleas
• Decided: January 15, 1854
• Status: Published

Opinion

By the Court. Daly, J.

The question put to the witness, Boscher, was allowable under the circumstances. His credibility was the matter in question. The defendant sought to impeach it, by showing, on an examination of the witness in his own language, on the trial, through the means of an interpreter, that he had no positive knowledge of facts stated in an affidavit he had made in English, to be, true “ of his own knowledge,” and the defendant succeeded in doing so, “ If it be intended,” says Abbott, O. J., in the Queen’s case, (2 Brad. & Bing. 314,) “ to bring the credit of a witness into question, by proof of any thing he may have said or declared touching the case, and he admits the words or declarations imputed to him, the witness has the opportunity of giving such reason, explanation, or exculpation of his conduct, if any there be, as the particular circumstances of the transaction may happen to furnish.” Now if a witness has sworn to a deposition drawn up in a language not his own, and with which he is but imperfectly acquainted, and it appears, upon his examination in his own tongue, that he has not any positive knowledge of facts stated, in the deposition, to be true of his own knowledge, I think it is perfectly competent to show, by the witness, that he did not understand the full import of the language used in the deposition, and that all that he intended to convey was, his conviction of the truth of the fact from circumstances which had come to his knowledge. I am not quite sure that even an ignorant witness, who has sworn to a deposition in his native language, might not be suffered to state, where his credibility was in question, that he had a different understanding of the language used than such as would be given to it by a court and jury; but certainly a foreign witness, but imperfectly acquainted with the English language, should be permitted to do so. The explanation of the witness, in every such case, goes to the jury for what it is worth, upon the general question of his credibility. Here the witness swore that he did not understand the English language, and several witnesses, subsequently called to the point, swore that his knowledge of it was very imperfect. He stated that he was incapable of reading the affidavit himself ; that a part of it was read to him in English and a part of it in French, which part in English and which in French he could not remember. He was then asked, what kind of knowledge he meant, in the affidavit, by his own knowledge, which was the question objected to, and his answer showed that he meant simply his conviction or belief, from circumstances which had come to his knowledge, that the fact was as he had stated it to be. I think there was no error in permitting him to give the explanation.

The charge of the judge in respect to the effect to be given to Boscher’s testimony came fully up to the request made of him. He called the attention of the jury to the materiality of his evidence, remarking that it made out the necessary proof of the existence of a trade mark, if Tie was to be believed. He called their attention to the fact of the affidavit, the untruth of some of the statements made by the witness in it, and the explanation given by him, and told the jury that it was for them to say what degree of credit ought to be given to him, and that if he had willfully swore false in one thing, he was not to be believed in any thing. This was going as far as the law requires, and was fully up to the defendant’s request.

The fact that the plaintiff had discontinued the use of this trade mark for three years, would not deprive him of a right of action against the defendant for selling leather which was not manufactured by the plaintiff, but stamped in the same manner in which the plaintiff had formerly designated the leather manufactured by him, thus purporting to be of his manufacture, and declared by the defendant, at the time of sale, to be the genuine Lemoine calf skins. The credit and reputation which a man acquires by his care or pin 11 in the manufacture of a particular article, is a species of property which the law recognizes and protects; and where, as a means of extending his reputation and guiding purchasers, he affixes some mark or symbol to designate that the article is óf his manufacture, he is injured by the sale of an article manufactured by another, with his peculiar symbol or trade mark affixed to it. If the article is inferior to his own, he is injured in reputation; and even if it be of a similar quality and kind, its sale goes so far to diminish the sale of his own article, and thus works a pecuniary damage. The wrong and injury to the plaintiff consisted in the sale of calf skins, falsely purporting and declared to be of his manufacture; and it makes no difference whether that object was effected by counterfeiting the trade mark which he uses at present, or one that he formerly used. An injury results to him in either case.

One of the sales was shown to have been brought about by the procurement of the plaintiff’s agent, and in respect to that he has no claim for damage. It is equivalent to a sale made to himself, by which he neither gains nor loses. Perhaps he would, in that case, as the judge held, be entitled to recover nominal damages, on the ground that the sale of the article in his name, being a wrongful act, would be sufficient to give a right of action. But it is not necessary to pass upon that question. It was not proved that the other sale was by his procurement, though the judge, in his charge, assumed that the plaintiff’s counsel had substantially conceded the fact. The judge told the jury that they were at liberty so to find the fact, but the jury having rendered a verdict in favor of the plaintiff for nominal damages, we may, in support of the verdict, assume that they found the fact to be otherwise. The motion for a new trial should, therefore, be denied.

Order denying a new trial affirmed.'