131 Mass. 283 | Mass. | 1881
We are of opinion that none of the defendants’ exceptions can be sustained.
1. By the contract upon which the suit is brought, the defendants assign to Dobbins and Crawford “ the good will of our entire business of manufacturing and selling machinery and apparatus belonging or appertaining to presses for hot-pressing textile fabrics by means of hollow or chambered plates, as heretofore carried on by us.” If this provision stood alone, perhaps it might be doubtful whether it included the presses themselves, or covered merely the machinery or apparatus attached to the presses. But it is explained by the clause immediately following, in which the defendants covenant “that we will not, nor will either of us hereafter, during the residue of the respective terms of the letters patent aforesaid now unexpired, engage within the United States in the business of manufacturing or selling machinery or apparatus for hot-pressing textile fabrics by means of hollow or chambered plates, or especially belonging or appertaining to the same.” Construing the two together, we are of opinion that it was the intention of the parties that the defendants should not have the right to manufacture or sell presses. They are included in the terms of the defendants’ covenant, being a necessary part of the machinery or apparatus for “ hot-pressing textile fabrics.” The ruling of the Superior Court upon this subject was correct.
2. The court correctly ruled that the evidence offered of an oral license from the administratrix of Dobbins to the defendants to manufacture and sell the presses and machinery, was inadmissible, because not set up in the answer. The first supplemental answer avers that the defendants “have accounted for and paid a license fee or royalty for all the machinery and apparatus manufactured and sold by them, or either of them, cov ered by said letters patent since the sale and transfer of said patents to the plaintiff.” This certainly does not set forth in clear and precise terms an oral license from the administratrix of Dobbins. A subsequent amendment of the answer sets up that the administratrix of Dobbins “ gave to defendant Weston a license and authority to manufacture, do repairs and sell under said contract, a copy whereof is hereto annexed marked A. And defendants further say they were duly authorized and
3. The evidence offered to show that, at or about the time the written license was dated, the administratrix of Dobbins had “spoken of giving such a license to the defendants,” was properly rejected. The administratrix was a witness called by the defendants. She was not a party to the suit, and her declarations were not competent as independent evidence. The defendants, not having complied with the requirements of the St. of 1869, c. 425, could not contradict their own witness by showing that she had made previous statements inconsistent with her present testimony. Ryerson v. Abington, 102 Mass. 526, and cases cited.
4. The question put to the defendant Weston, whether “he had begun to construct other presses than those he had a license for,” was objectionable in form, as the answer necessarily involved the opinion of the witness upon the existence and effect in law of a license to him, and no exception lies to its exclusion by the court.
5. The court rightly refused the three requests for instruction presented by the defendants. The contract is intelligible, and not void for vagueness or uncertainty.
The court found, as a fact, that the plaintiff and Dobbins had complied with all the conditions of the contract upon which the right of action depended; and rightly ruled that the agreement at the end of the contract that Dobbins should pay Weston $74.75, the balance of accounts between them, was an independent contract between them, in which the plaintiff had no interest, and that the non-performance of it by Dobbins would not prevent the plaintiff from recovering in this case.
Exceptions overruled.
