Dolan

Action by plaintiff to recover the sum of $3,724,52 for goods alleged to have been sold and delivered to defendant.

The complaint in substance charges that plaintiff’s assignor, the United States Printing & Lithograph Company, entered into a written contract with defendant for the manufacture of certain labels for which the defendant agreed to pay the amount sued for. Defendant denied the indebtedness, and as a separate and distinct defense alleged in substance that plaintiff’s assignor promised and agreed to manufacture and deliver to defendant canning company some 2,500,000 sardine labels at the agreed price of $1.30 per 1,000, and promised and agreed that the labels were to contain a design of the trade name to be thereafter selected by defendant; that subsequently the lithograph company notified defendant that a certain trademark was available for registration in the patent office and prepared and delivered to defendant a sketch of the same; that defendant, upon being so informed, advised the lithograph company not to proceed with the printing of the labels until the trade mark had been registered, as it would be necessary for the defendant in using them to have the words…