82 Wis. 509 | Wis. | 1892
This action is based upon a contract of the following import: The parties are A. C. Richards, as administrator of the estate of Charles M. Roberts (deceased) and in his own right, and others, who are interested in a patent right of an invention known as “ an improvement on processes and machinery for the manufacture of flour,” secured to the said Roberts in his lifetime by letters patent dated the 10th day of July, 1877, as parties of the first part and the plaintiffs herein, and Edward P. Allis, sole partner under the firm and style of E. P. Allis & Co., of the second part, said Allis being a manufacturer of machinery for milling purposes in the city of Milwaukee, and the defendant herein. The plaintiffs had sued Herr & Cissell, of the District of Columbia, for the use of machinery claimed to be an infringement of said patent, which machinery was sold to the defendants by the said Allis, who
The said plaintiffs were to release the defendant, and those to whom he had furnished said machinery, from all liability for infringement of said patent; and the defendant might sell said machinery in the United States for the remaining time of the patent; and .the persons to whom it is sold shall pay the license fee therefor; and the plaintiffs shall thereupon furnish to such persons a license therefor; and the defendant is to collect from them the license fee therefor, and retain as his own one half thereof for collecting the same. The defendant is to recognize and never dispute or question the validity of said patent, or litigate it, or encourage others to do so; and to do his best to intro-' duce said machinery into use, and encourage its use by the millers of the United States. The defendant is to collect the license fee from those to whom he furnishes said machinery, retaining one half; and to render to the plaintiffs quarterly accounts from April 1, 1884, of the names and residences of persons to whom he furnishes said machinery, the capacity of their mills, etc.; and to furnish the plaintiffs the names and residences of persons to whom he had sold said machinery before January 1, 1884; and the plaintiffs shall give to such persons licenses to use the same. The license fee agreed on was to be, for six months, one dollar per barrel of flour, according to the capacity of the mills using said machinery.
The complaint charges that the defendant has failed to render such statement or account of license fees collected, and denied having furnished to any mills such-machinery, and, on information and belief, that the defendant has furnished various mills such machinery to the plaintiffs unknown, and has failed to account therefor. The plaintiffs demand an accounting of these transactions, and of the money received by the defendant, and of the mills furnished'
The defendant, by answer, denies that he has ever furnished to any one or made or used any machinery which is an infringement of said patent; and avers that he has not collected any license fees therefor, and has tried to induce millers to pay license fees, but has been unable to induce them to do so; and that said patent is worthless and void by reason of the processes thereby secured not being new, but long known and used by the public; and for that reason that he could not induce any one to pay a license fee therefor.
These are, in substance, the pleadings and issues upon which the case was tried. The court found all these issues in favor of the defendants, and as a conclusion of law that the plaintiffs have no cause of action in equity, and have, if any, an adequate remedy at law, and the action should be dismissed; a-ncl judgment was entered accordingly.
There is no conclusion of law on the plaintiff’s cause of action or the defendants’ liability. It is merely that the plaintiffs have no cause of action for an accounting in equity. The judgment of dismissal is based upon this conclusion of law alone. It follows, therefore, that the case is not here on appeal on its merits, or on the exceptions to the findings of fact or to any errors of the court on the trial. It is here merely on the question of the jurisdiction of the court in equity. The defendants raised the question of jurisdiction in their answer, and the court should have passed upon it before the trial on the case made by the complaint, and saved the expenses of the trial. The trial, the findings of fact, and the exceptions thereto are simply nugatory. The action is dismissed solely for want of jurisdiction, and that is the only question before this court, and on that question we think the court was clearly right.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to dismiss the complaint without prejudice to an action at law.