Russell v. Lathrop

117 Mass. 424 | Mass. | 1875

Morton, J.

In the original action the plaintiff sought to recover three thousand dollars under a written contract signed by Russell and Frary. The point of the contract on which he relied is as follows : “ And they also agree to pay said Lathrop three thousand dollars when and as soon as said company shall have obtained a decree or judgment establishing the validity of said patent; and said Lathrop agrees that he will use his best endeavors to aid in establishing the validity of said patent, whenever he shall be called upon to do so by said Frary and Russell, or said company.”

The execution of the contract was admitted, and the only question was, whether the contingency had happened in which the obligors were bound to pay the three thousand dollars to Lathrop. It appeared at the trial, that before this contract was made, the Lamson & Goodnow Manufacturing Company had brought three suits in equity against J. Russell & Co., Landers, Frary & Co., and Clement, Hawks & Co., respectively, to restrain them from using the invention described in the letters patent referred to in said agreement.

The several defendants united in defending these suits, and Lathrop assisted in the defence, and gave a deposition tending to impeach the validity of the patent.

The parties to these suits made an arrangement by which the suits were to be settled, the several defendants were to be licensed to use the invention, and the owners of the patent were to proceed with reasonable diligence to restrain all others from using it, unless licensed to do so, with the written consent of two of the defendants. These facts were known to Lathrop, and under these circumstances the contract sued on was made. After the contract was made, in pursuance of the above arrangement an order was entered in each of the three suits in equity, by consent of parties, that the bill might be taken pro confessa, but no further decree was ever passed in either of them.

The defendant in review objects that these facts were not admissible ; but we think they are competent to explain the situation of the parties, and thus to aid the court in applying and construing the language of the contract.

It is clear that in the stipulation of the contract that the obligors shall “ pay said Lathrop three thousand dollars when and as soon as said company shall have obtained a decree or judgment establishing the validity of said patent,” the parties did not contemplate any formal decree to be entered in the pending suits. These suits were settled, and any order or decree which might be made in them would be merely formal. The stipulation that Lathrop should “ use his best endeavors to aid in establishing the validity of said patent,” shows that proceedings against other infringers• were contemplated; it could not have been intended to apply to the pending suits.

Construing this contract in the light of the situation of the parties, we are of opinion that it was not their intention that the liability to pay to Lathrop three thousand dollars under it should arise by reason of any decree which might be made in these pending suits, and that, therefore, the original plaintiff, Lathrop, failed to show any breach of contract by the defendant.

In the view we take of the contract, it is not necessary to consider whether an order that a bill be taken pro eonfesso, if made in a suit brought by the company against other infringers, without any other decree or judgment, would be, within the meaning of the contract, “ a decree or judgment establishing the validity of ” the patent. Exceptions sustained.