Kalbach v. Marine-Galligan Co.

92 Pa. Super. 185 | Pa. Super. Ct. | 1927

Argued October 13, 1927. The defense to the plaintiff's claim was that there was no privity of contract between him and the defendant, and that the agency of Watkins, relied on by the plaintiff, was not proven. That the latter owned a patent for an improved grate bar to be used in boilers, described as the "Bridge-grate," is not disputed; nor is there any contradiction that the contract of March 10, 1925, between the patentee and the defendant company granting a license to the latter to use the grate bar patent, was entered into for the company by Galligan its treasurer. There is also direct affirmative evidence that the defendant operated under the license, and this is not contradicted. It is sufficiently established, therefore, that the defendant was making use of the Watkins patent under authority of the contract referred to. One of the provisions of that contract was that if "Any change or additions are deemed necessary to improve or develop the field for said Bridge grate, the patterns needed for said improvement shall be paid by the licensee, provided said licensee shall approve the said improvement." Pursuant to this provision of the contract, the president of the Company, under date of March 28, 1925, wrote as follows to Watkins, the patentee: "We authorize you to make the necessary changes in the patterns to the front piece added to our usual form of grate to enable us to place the grate on the present bearing bars removing the same. As we understand it this will necessitate a pattern for the 10 and 11 inch foot bridges and one saddle. Very truly yours, Marine-Galligan Co., John D. Marine, President."

The testimony of Watkins shows that he applied to the plaintiff to make the patterns contemplated in the letter of the president of the defendant company, above quoted; and that the patterns were provided by the plaintiff; that they were received by the defendant and used by it in the subsequent manufacture of the Bridge-grate bars; that the defendant sold the grate bars in their business thereafter. On the evidence thus briefly stated, the trial judge, who heard the case without a jury, found in favor of the plaintiff. As there was no evidence showing what the authority of the officers of the defendant company was, nor an exhibit of the charter or by-laws under which it was doing business, we regard the conclusion of the court as well supported. Under the evidence presented, if it be conceded that the authority of the president and the treasurer to sign the contracts with Watkins does not appear, there is no dispute about the fact that the defendant accepted the benefits of those contracts. The principle is well established that where one adopts a contract entered into without his authority he must adopt it wholly. He may not ratify the beneficial part and reject the remainder: Hartzell v. Ebbvale Mining Co., 239 Pa. St. 602; Mundorff v. Wickersham,63 Pa. 87; Wheeler Wilson Co. v. Aughey, 144 Pa. 398; Benjamin v. Holgate, 51 Pa. Super. 104. The evidence shows that at the time the contract authorizing the defendant to use the patent was entered into, a discussion was had with the representatives of the defendant with respect to the advisability of the change in the grate bars, and that the direction to Watkins to make the change was pursuant to the discussion on that subject.

The evidence supports the finding that Watkins was authorized to procure the necessary patterns and that when procured they were accepted by the defendant and used in its business. The conclusion properly followed that under the case as presented the defendant was bound to the pattern maker for the value of his work.

The judgment is affirmed.