34 Ind. App. 80 | Ind. Ct. App. | 1904
Appellant sued appellee upon two promissory notes payable to the order of A. Borders, and assigned by indorsement in writing to appellant before maturity. The notes were not payable at any bank within this State. Appellee answered in six paragraphs, to each of which a demurrer was addressed; and such demurrer was overruled as to the first, fourth and fifth paragraphs, and sustained as to the second, third and sixth. Appellant replied in three paragraphs, but as no question is presented, arising under either paragraph of reply, it is unnecessary to refer further to them. The cause was tried by the court, resulting in a general finding and judgment for appellee. Appellant’s motion for a new trial was overruled, and by its assignment of error it is entitled to have considered the action of the court in overruling its demurrer to the first, fourth and fifth paragraphs of answer, and also in overruling its motion for a new trial.
In his first paragraph of answer appellee seeks to build his defense upon the fact, as alleged therein, that the original payee of the noto had not complied with the statute in regard to the sale of patent rights. The sum and substance of that paragraph of answer is that the Model Commissary Company, by A. Borders, its attorney in fact, sold to appellee ten dozen articles, claimed by it and him to be
By his fourth paragraph of answer the appellee admits the execution of the notes sued* on, that the same were purchased by plaintiff before maturity, and that they were
The fifth paragraph sets up fraud in procuring appellee to execute the notes. The paragraph avers that at the time of making the sale to him of the patented articles, and at the time he executed the notes, the said Model Commissary Company, by its attorney in fact, claimed to the appellee that said model commissaries were patent rights and protected by United States patent, and that he relied upon said statements at the time, and believed them to be true; that there was not inserted in the body of said notes, or either of them,' “given for a patent right,” or “given for the right to manufacture a patent right,” or words which clearly stated the consideration for which the notes were given. It is also averred: That appellee had never had any experience in the purchase and sale of a patent right, nor any article called or claimed to be a patent right, and that he knew nothing about how to sell or dispose of said commissaries, but had to rely on all the statements so made by said company, and the statements made to him by said Bonders; that said Borders was a shrewd dealer and trader in patent rights, and knew all about the business, and he knew that the appellee knew nothing about it; that as a further inducement to appellee to make said purchase and execute said notes, said Borders exhibited to appellee a large bunch of orders for said commissaries, claiming that there were more than two hundred of them, executed by almost every business and professional man in the town of Petersburg, and every leading farmer in Washington, Madison, Clay and Jefferson townships in Pike county, Indiana, and said that they were orders that he (Borders) had taken for said commissaries, and that he had four other men working for him, who had taken as many as he had; that it was an article that everybody wanted, and that there would be no trouble in selling it, and that he (Borders) would make over $5,000 in his profits from the
The answer further charges that Borders and his other men acting with him, for the fraudulent purpose of cheating, swindling, defrauding and inducing citizens of Pike county, and the appellee in particular, to execute said notes, prepared and carried with him large numbers of papers purporting to be individual orders for commissaries from the professional and business men of the town of Petersburg, and representative farmers of said Washington, Jefferson, Madison, Olay and Logan townships in Pike
In the case of People’s State Bank v. Jones (1901), 26 Ind. App. 583, 84 Am. St. 310, a paragraph of answer substantially like the one under consideration was held bad, but the contract which formed the basis of the action was executed before the amendment of the statute in 1899. The original act (§8131 Burns 1894, Acts 1869 (s.s.), p. 91, §2)
Appellant insists that the case last cited does not correctly state the law, and urges that it should be overruled. We can not concur in that insistence, for the decision rested upon the statute as it existed when the contract was made, and was in harmony with the decisions of the Supreme Court. In a subsequent appeal of the case (Jones v. People’s State Bank (1904), 32 Ind. App. 119), this court adhered to the former decision. We approve both decisions. See, also, Hankey v. Downey (1888), 116 Ind. 118.
The legislature in 1899 amended the original law, in a material respect, and the contract sued on here was executed since that amendment, and the sufficiency of the first paragraph of answer must be measured and determined by its provisions. The amended section is as follows: “It shall be unlawful for any person to sell or barter, or offer to sell or barter, any patent right, the whole, any part thereof, or any right which such person shall allege to be a patent right, or sell, barter, grant or license^ or offer to sell, barter, grant .or license the right to manufacture, use or sell the patented article, whether either of said rights be exclusive or non-exclusive, in any county within the State, without first filing with the clerk of the court of such county copies of the letters patent, duly authenticated, and, at the same time, swearing or affirming to an affidavit, before such clerk that such letters patent are genuine, and have not been revoked or annulled, and that he has full authority to sell or barter, grant or license the right so patented, or any part thereof, and the right to manufacture, use and sell the. patented article, which affidavit shall set forth his name, age, occupation and residence, and if any agent, the name, occupation and resident [residence] of his principal. A copy of this affidavit shall be filed in the office of said clerk, and the clerk shall give a copy to the applicant, who
The amended statute places an inhibition against the sale or offer to sell, not only a patent right, but makes it unlawful to “offer to sell, barter, grant or license the right to manufacture, use or sell the patented article, whether either of said rights be exclusive or non-exclusive,” without first filing the required affidavit. The amendments made in 1899 to §8131, supra, are very significant, and material in the determination of the question we are now considering. Formerly the statute only required that when any obligation in writing was given for a patent right, or a right claimed to be a patent right, before' it was signed by the maker, should be indorsed, “given for a patent right.” 'How the statute is extended to the sale of the right to manufacture, use or sell the article so patented, whether the said rights, or either of them, bej by sale, grant or license, exclusive or non-exclusive, shall form a whole or any part of the consideration, and requires the additional indorsement., “given for the right to manufacture a patented article/’ or words which clearly state the consideration
The judgment is affirmed.