289 S.W. 1100 | Ky. Ct. App. | 1926
Affirming.
On June 14, 1914, William Wilson and H.C. Dunavent sold to Otis Pickrell and J.E. Zinsmeister the exclusive right to manufacture for a period of five years a sanitary milk strainer alleged to have been covered by a patent issued to Robert Lynch and purchased by them. The contract of sale provided for an annual minimum royalty, and in the month of October, 1915, Wilson and Dunavent brought all action against Pickrell and Zinsmeister to recover the minimum royalty due for the first year. The defenses were: (1) The contract was delivered on conditions that never happened; (2) the contract was cancelled or abandoned; (3) the patent was invalid; (4) the patent did not cover the strainer. On these issues the court gave the following instructions:
"1. The law of this case is for the plaintiffs, William Wilson and H.C. Dunavent, and the jury will so find unless the jury shall believe from the evidence,
"(a) That the written instrument dated June 15, 1914, sued upon herein, was signed and delivered by the defendants, Pickrell and Zinsmeister, to the plaintiffs, Wilson and Dunavent, upon the condition that it was not to become effective as a contract if Banning Banning, patent lawyers of Chicago, *432 should express the opinion that the sample strainer exhibited to the defendants by the plaintiffs was not such a strainer as was described in and protected by the Lynch patent, and that thereafter said Banning Banning did express an opinion that the sample strainer referred to was not such a strainer as is described in and protected by the Lynch patent; or
"(b) That after the instrument of writing dated June 15, 1914, between the plaintiffs and defendants and read to you in the evidence, was signed and delivered by the parties thereto, the said plaintiffs, or either of them, acting for both of them, and the defendants, or either of them, acting for both of them, by mutual agreement, cancelled or abandoned said contract or the performance of its terms therein set forth; or
"(c) That the dies and appliances for the manufacture of said strainers referred to in said instrument of writing, and which dies and appliances were described to you in the evidence, and which are claimed by the evidence to have been delivered to the defendants by, or upon the order of, the plaintiffs after the execution of the instrument of writing sued on herein, were not adapted to manufacture a strainer conforming substantially to all of the specifications and teachings of the Lynch patent, as contained in the letters patent of said Lynch patent read to you in the evidence; or
"(d) That at the time said instrument of writing dated June 15, 1914, between the plaintiffs and defendants, sued on herein and read to you in the evidence, was executed and delivered between the plaintiffs and defendants, the said Lynch patent therein referred to was not a valid patent, as that term is described to you by these instructions."
Instruction No. 2 is the converse of instruction No. 1. Instructions 3 and 4 stated the law by which the jury should be guided in determining whether or not the patent was valid. The trial resulted in a verdict and judgment for plaintiff in the sum of $4,927.94. On appeal the case was reversed on the sole ground that the court erred in excluding oral evidence that the contract was delivered on condition that it should not take effect until the happening of certain contingencies. At the same time this court held that the royalties were due and collectible annually, *433
and that the trial court did not err in refusing to transfer the case to equity. Pickrell, et al. v. Wilson, et al.,
"6. The court instructs the jury that the scope of the Lynch patent is limited to the claims set out on page 2, lines 30 to 65, in the letters patent introduced in evidence, and that the following language found on page 1, lines 31 to 35 of the said letters patent, to wit: 'It being understood that changes in the precise embodiment of invention herein disclosed can be made within the scope of what is claimed without departing from the spirit of the invention,' do not have the effect of changing or enlarging the patent as precisely defined in the claims set out on page 2, lines 30 to 65, in the said letters patent. The language found on page 1 of the letters patent does not give to the patent any greater scope than the patent would have if the said language had been omitted.
"7. The court instructs the jury that the specifications appearing on pages 1 and 2 in the letters patent introduced in evidence do not have the effect of changing or enlarging the Lynch patent as precisely defined in the claims for the Lynch patent appearing on page 2, lines 30 to 65, in the said letters patent; and the jury are further instructed that the device protected by the Lynch patent and described in the claims of the letters patent introduced in evidence has, as one of its essential elements, a pair of funnel-shaped members flaring in opposite directions."
The offered instructions were refused, and the jury returned a verdict in favor of plaintiffs for five annual installments of minimum royalties aggregating about $25,000.00, together with interest on each installment.
On this appeal the sole ground urged for reversal is the refusal of the trial court to give the offered instructions. The argument may be summed up as follows: *434
Keystone Bridge Co. v. Phoenix Iron Co.,
In view of the conclusion of the court we deem it unnecessary to determine whether the principle of law submitted in the offered instructions is correct or not, but will devote our attention to a consideration of the question whether the law of the case is controlling. The rule is that where the opinion on appeal becomes final, all questions raised or that might have been raised on that appeal must be regarded as settled, and where instructions that were given on the trial were before the court, and not criticized, they are tacitly approved and become the law of the case, which the trial court can neither modify nor depart from in succeeding trials. Louisville A. R. Co. v. Cox's Admr.,
Judgment affirmed. Whole court sitting.