De Beaumont v. Webster

81 F. 535 | 3rd Cir. | 1897

ACHESON, Circuit Judge.

The first assignment of error, namely, that the learned judge below “erred in not striking out all the testimony of Warren Webster,” the defendant, and the second assignment, that he “erred in considering any of the testimony of Warren Webster,” must be overruled. Undoubtedly the defendant was a competent witness except as to “any transaction with or statement by” the intestate, Alexandre De Beaumont (Goodwin v. Fox, 129 U. S. 601, 9 Sup. Ct. 367); and the court excluded from consideration all the testimony of this witness relating to such transactions or statements.

The third, fourth, fifth, sixth, and eighth assignments of error relate to the matter of the alleged cancellation of the written agreement between Warren Webster and Elwood S. Webster of the one part and Alexandre De Beaumont of the other part, dated March 21, 1887, and to the conclusions which the court reached, or should have reached, with respect thereto. Upon a careful examination of this record we are satisfied that there was competent and sufficient evidence to justify a finding that the agreement mentioned was canceled in the month of April, 1888. Thomas B. Harned, Esq., was then the legal adviser of, and acting as attorney for, Mr. and Mrs. De Beaumont with respect to that agreement, and to matters connected with it. By their express authority (as clearly appears), and in their behalf, Mr. Harned addressed to Webster Bros, the letter of April 19, 1888, in which he informed them that by his advice “Mr. De Beaumont and wife have given George A. Barnard, of New York, a power of attorney to act as their exclusive agent in all things pertaining to their rights and interests in patents 187,825 and 199,038, and in the future he (Barnard) will give such interest his personal attention.” From this letter the defendant supposed — not unnaturally, we think — that Mr. and Mrs. De Beaumont, by constituting Mr. Barnard their “exclusive agent” in all matters relating to the named patents, intended to cancel their arrangement with Webster Bros. However, shortly after the receipi of this letter, the defendant had a personal Interview with Mr. flamed, and was then informed by that gentleman that the authorization to Barnard meant a cancellation of the agreement with the Websters. The defendant did not then, nor until long afterwards, see the power of attorney, but, had he known its contents, he might well have been confirmed in his understanding that Mr. and Mrs. De Beaumont thereby intended to terminate the agreement of March 21, 1887. That agreement invested the Websters with “the exclusive rights to the sales and management of all the business connected with the said patents, including sales to the right to the same in such localities as may by them, the said Warren and Elwood S. Webster, be deemed advisable.” Now, the power of attorney authorized Barnard to act “in the sale or licensing of the patents of said Alexandre Do Beaumont, Nos. 187,825 and 199,088.” ITow this authority could be exercised by Barnard consistently with the continued enjoyment by Websier Bros, of the exclusive rights conferred upon them by the agreement of March 21, 1887, it is very hard to see. The clause in the power of attorney relating to that agreement may well be read as referring to past transactions under it. The case, how'ever, by no means depends upon Mr. Harned’s letter and verbal statement and the ¡lower of attorney alone. The after-conduct of all the parties in interest tends to sustain the defendant’s allegation that the agreement of March 21, 1887, was canceled by Mr. and Mrs. De Beaumont with the assent of 'Webster Bros. Upon the clearly competent evidence, it is, we think, a fair deduction that no business was done on either side under the agreement after April, 1888. Again, the absence of-any demand upon the defendant until July, 1898, is very significant. Buch forbearance is inconsistent with a continuing contract with Webster Bros.

The conduct of Mrs. De Beaumont with respect to a certain circular deserves special mention. By a paper dated July 7, 1887, Mr. Do Beaumont had assigned to his wife the agreement of March 21, 1887. Now, it appears that in the month of October, 1890, Mrs. De Beaumont came to the defendant’s office, and left on his desk a copy of a circular purporting to bo issued in her behalf and name by her husband. This circular relates to the above-named patents, and contains this notice: “No company or individual has any right; to work these patents or negotiate for the same. I part icularlv noti fv all parties that Webster Bros, have no right to work these patents, or interest in the same.” Now, if. the agreement of March 21, 1887, was then in force, as the appellant now insists, there was no justification for that statement. ’Fills circular affords persuasive evidence that the agreement had ended. It is idle to suggest that Mrs. De Beaumont can neither write nor read. She must be presumed to have known the contents of a circular which purports to emanate from herself, and a copy of which she left at the defendant’s office. Moreover, Mrs. De Beaumont was a competent witness to explain her own conduct, if it admitted of explanation; but she avoided the witness stand. Without further discussion of the evidence, we overrule all the assignments of error under this branch of the case.

The seventh assignment asserts that “the learned judge erred in finding that the business prior to April, 1888, resulted in loss.” We think, however, that the evidence fully justifies such a finding. The books show a loss of $7,018.17. Moreover, early in the year 1888 a statement showing a loss in the business was furnished to Mr. Harned, who undoubtedly represented Mr. and Mrs. De Beaumont in all this matter. That statement was retained, and no attempt has been made to impeach its correctness.

The tenth assignment alleges error in that the learned judge did not find “that the defendant had continued to use the invention of the plaintiff A. De Beaumont, and that the plaintiffs are entitled to an account as prayed for in the bill.” This assignment is based upon a mistaken idea as to the scope of the De Beaumont patent, Mo. 187,825. We have considered and construed that patent in an opinion just delivered in the case of De Beaumont v. Williames, 80 Fed. 995. The parties to the agreement of March 21, 1887, entered into it, and operated under it while it remained in force, upon an entire misconception as to the scope of the De Beaumont patent. That patent has no relation to a system of vacuum steam heating as the parties to the agreement supposed. Some of the apparatus which Webster Bros, set up while they were yet working under the agreement of March 21, 1887, infringed patent Mo. 250,089, granted on April 4, 1882, to Mapoleon W. Williames, for a heating apparatus, and the five plants which the defendant installed after April, 1888, likewise infringed that patent. For all these infringements the defendant has settled with Mr. Williames. The defendant had a perfect right to take a license from Williames at the time he did. The De Beaumont and the Williames inventions are distinct, and the Williames steam-heating apparatus does not infringe the De Beaumont patents. We have only to add here that we fail to discover any ground for holding the defendant accountable under this bill for feed-water heaters and purifiers manufactured by him under his own patents.

In answer to the remaining — the ninth — assignment, namely, that the court erred in dismissing the bill of complaint, little need be added to what has been already said. The complainants’ right to an account accrued in the spring of 1888. An account was furnished to the representative of Mr. and Mrs. De Beaumont. That account showed a great loss in the business, as do the books of the concern. The account was retained, and has not been impeached. It is quite certain that nothing is due to the De Beaumonts on the business transacted under the agreement. This bill was not brought until October, 1893. Its real purpose was an accounting for an alleged liability arising from transactions after April, 1888. But, as we have seen, there is no ground for such accounting. The supposed liability never existed. The appellant is not entitled to any equitable relief, and the bill was rightly dismissed. The decree of the circuit court is affirmed.