177 F. 389 | 3rd Cir. | 1910
This case was fully tried out on the merits, and was submitted in a charge to which no exception ..was taken. Neither party asked for instructions, and the only ques
Taking- up first the amendment, we may observe that it seems to have been superfluous, and therefore can have done no hann. The statement of claim averred that the plaintiff owned a patent for inv provements in brick kilns, and had agreed to license the defendant, “in consideration whereof the defendant then and there promised to pay the plaintiff her price for a license to build, remodel, and operate said kilns, and the plaintiff avers that her.. price for a license to build or remodel and operate such brick kilns is $500 per kiln; that such price is just and reasonable.” After the plaintiff had put in her case, the defendant moved for a compulsory nonsuit on the ground of variance, asserting that, although the statement of claim was based upon a quantum meruit, the testimony tended to prove an 'express contract. Thereupon the plaintiff, ex majori cautela, asked and was permitted to amend by adding a count declaring that the defendant had expressly promised to pay $500’per kiln. The allowance was excepted to on the ground that the amendment set up a different cause of action from the cause originally stated. It is our opinion, however, that the amendment added nothing material. If the defendant promised to pay the plaintiff “her price,” and such price was $500 per kiln, it was not essential to add another formal averment that a direct promise to pay $500 was expressly made. The amendment did little more than amplify the statement in one particular, and the distinction sought to be drawn seems too refined to be supported. Moreover, even if the cause of. action had been changed, we should hesitate to interfere with the discretion of the Circuit Court, unless the defendant was injured thereby. The injury alleged is that the statute of limitations had run at the time of the trial; but it is a sufficient answer to this allegation that no such complaint was made in the court below. In Pennsylvania a party does not benefit by the statute of limitations unless he pleads it, and the defendant did not plead it, or object to the amendment on that ground, or ask for an instruction that the statute was a bar. The question cannot be raised in this court for the first time.
Other exceptions relate to an assignment of the patent. The patentee was the plaintiff’s husband, and had assigned the patent to her in December, 1899. The defendant asserted that he had executed a second assignment to her in August, 1906, and attempted upon cross-examination to find out why this was done. The court ruled out the questions, and this action is assigned for error. Without discussing the reasons’ that were given for excluding the testimony, it is enough to sajr that we have not been convinced that any injury was done to the defendant by closing the door upon the subject. It appeared to be-a collateral inquiry — a matter that concerned mainly, if not wholly, the husband and his wife. If its relevancy had been clear, the objections might have force; but the argument has failed to satisfy us that the existence of the second assignment had any bearing upon the issue, except, perhaps, so remotely that the possible connection may safely be neglected."
There is more substance in the first and second assignments of error.
The remaining assignments do not require special notice. We have given them careful attention, but regard them as of minor importance. None of them should be sustained. It may he that the plaintiff has recovered a substantial verdict upon evidence that leaves something, perhaps a good deal, to be desired; but the trial judge must have been better informed upon the subject than we can be, and he considered and refused a motion for a new trial.
The judgment is affirmed, with costs.