89 P. 421 | Or. | 1907
Lead Opinion
Opinion by
“It was stipulated that the defendant should be paid by the plaintiff for his said services at the rate of $150 per month for the time he was in the employ of the plaintiff; and that defendant in consideration thereof did promise and agree to design such machinery as might he required of him, and to give plaintiff the benefit of the best of his knowledge, skill and experience.”
Immediately following this language, but in a separate paragraph, is the following:
“That in and by said contract it was furthermore, in consideration of the employment of said defendant by plaintiff as aforesaid, expressly stipulated that any and all improvements which defendant might conceive and design, * * should become and be the exclusive property of the plaintiff.”
It is contended that the effect of the latter allegation is that the employment, and not the salary to be paid, is the alleged sole consideration for the succeeding alleged agreement as to the ownership of the improvements, and that it is not a sufficient consideration. But, however it may be as to the latter contention, it cannot be fairly concluded from the language quoted that the pleader intended to allege the latter as a separate and distinct agreement from the former, for his language clearly imports that the stipulation as to the ownership of improvements is a part of the contract of employment, and it must necessarily follow that the salary therein agreed to- be paid is alleged as the consideration for the agreement as to the ownership of improvements made.
“I would be pleased to hear from you in regard to matter of building a bandmill and other sawmill specialties, and would be glad to have you make me an offer as to what salary you would be willing to give me to go to work for you and design a band-mill and such other machinery as you ma3r deem advisable, draw mill plans and sell machinery on the road as circumstances might require. I believe I can satisf3r you.”
On July 8, plaintiff answers:
“We want a man in the capacity you mention, but you are comparatively a stranger to us, and we do not know whether you would fill the bill or not. What salary do you want to work for us a few months, or long- enough for us to determine the value of your services, and agree or disagree on the subject? Are you a machine draughtsman, or do you make mill plans only, and we suppose in either event you have drawings you have made in the past which we should like to inspect previous to entering into any agreement? Let us hear from you and oblige.”
July 10, defendant replied, submitting blue prints of drawings of sawmill machinery previously designed b3r him, concerning which he says:
“I may add that all of the machines I have designed are now in successful operation,” and also saying: “I think I should have $1,800 per year to start with, and I am satisfied that we could agree upon a future salary after we become better acquainted, and you have an opportunity to see the results of mv work.”
“Replying'to vour favor of the 10th, we have decided to accept your proposal, with the understanding that should we find it necessary to discontinue the arrangement, your services are to be paid for on a basis of $150 per month for the time you are in our employ. Another matter which has not been mentioned up to the present time, and should be fully understood in advance, is the matter of ownership of any drawings, patterns or designs of machinery made by you while in our employ, and it must be understood in advance that such are our property. We should like to have you come as soon as possible, as there are a number of deals coming up at the present time which it would be well for you to come in touch with.”
To this defendant replies, July 12:
“Yours of the 11th received. I will say in regard to drawings, patterns, etc., of machinery which I may make while in your service, same will certainly be considered as belonging to you as a part of the consideration of my salary. I always like' to retain a blue print of my drawings, but never dispose of same or turn them over to any other parties for gain or otherwise. In the event of my inventing a machine on original lines which is a success, both practically and financially,. the usual practice is to assign an undivided half interest to the employer and the inventor to retain the other half, provided a patent is taken out. I have designed a great many machines and improvements, but have never applied for any patents as yet, and do not know that I ever will. I do not know of any machine which 1 would want to patent unless it might be a ‘Pacific Coast Log Turner/ and this is in the air as yet. Any improvement which I may make in bandmills, carriages, feeds, rolls, edgers, etc., while in your employ, you are welcome to, and if you wish a patent on them, you pay for same, and I will assign it to you. These matters we can arrange in a personal interview.
Regarding time of continuation of our contract, would suggest that a proviso be made that either party thereto has the privilege of terminating same upon 30 days’ notice. I will endeavor to come to Portland next Saturday or Sunday, and be ready to go to work Monday morning.”
This correspondence certainly shows a definite offer on the one side to render certain services for a specified price, and an explicit acceptance on the other. It is conceded by defendant
“When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail,
This conclusion is also sustained by the subsequent acts of the parties. Defendant, according to his own testimony, went to work without further negotiations on these matters, and in the early part of the year 1905, he suggested to Mr. Clark, plaintiff’s president and superintendent, that the lower guide to a band-mill which he had designed was patentable. While, on the other hand, Clark testified that when defendant came to work, he and defendant in a conversation between them referred to the matter of drawing up a future agreement, but it was decided by them that what had been outlined in their letters covered all the contract which was necessary, and for that reason no formal contract was drawn up.
“The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a technical, local or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement shall be construed accordingly”: B. & C. Comp. § 709.
No evidence was offered by defendant, tending to show that the word “design” was used by plaintiff and himself when writing said letters in the technical sense now attributed to the
“Another matter which has not been mentioned up to the present time, -and should be fully understood in advance, is the matter of ownership of any drawings, patterns or designs of machinery made by you while in our employ, and it must be understood that such are our property.”
Now, how did defendant understand and interpret this counter proposition from plaintiff? Why, by drawing a distinction between inventing a machine on “original lines,” in which event, the practice was, he says, to assign an undivided one-half interest to the employer and the inventor retain the other half, and inventing “improvements” in bandmills, carriages, feeds, rolls, edgers, etc., whicli latter were to belong to plaintiff. Moreover, defendant does not claim that he was employed to make ornamental designs of machinery or that he did that kind of work, but he did understand that he was employed to devise and invent useful improvements, and he in fact did that kind of work. In that sense the parties used the word “design” in their letters, and they must be construed accordingly.
Reversed.
Opinion on Motion to Strike
On Motion to Eetax Costs.
Opinion by
It is apparent from an inspection of the receipted bills attached to appellant’s proof that the entry of 36 instead of 26 pages for the abstract, was a clerical error, and the clerk was misled in making that the basis of his computation. The issue to be determined is not the reasonableness of the charges, but what was actually paid. Appellant offered proof to support the cost bill, to the effect that the amounts charged were paid, and
Reversed: Objection to Costs Disallowed.