195 Pa. 200 | Pa. | 1900
Opinion by
The appellees were manufacturers of covered and pearl buttons. Appellants manufactured special machinery, and appellees purchased from them a number of machines, to be used in their business. During the negotiations leading up to the order Cor these machines, their infringement upon what was known as the “ Cleret ” patent was discussed by the parties. Finally, on November 16, 1894, an order was given by the appellees for ten machines, one already having been received by them, and, according to the testimony of Morris A. Kaufman, one of the plaintiffs, after he had given a verbal order for them, at the instance of George Rehfuss, one of the defendants, he sent the latter’s firm the following letter:
“Philadelphia, Nov. 16,1894.
“ Messrs. Geo. Reiieuss & Sons, Phila.,
“ Gentlemen: As per conversation had with your Mr. Rehfuss to-day, we confirm our order for ten more Pearl Button Machines, like the sample you made for us, this making, eleven
“Yours truly,
“ Selig & Kaufman.”
Before giving the order for these machines, and before this letter was written, Kaufman testifies : “ I again spoke about my fear that', on account of that machine looking so much like the Cleret machine, that I was afraid of it; I was afraid it might be construed as being an infringement of the Cleret patent; and he says: ‘You need have no fear of that; we will guarantee that it is not an infringement; we will sell you these machines, and we will guarantee them not to be an infringement of the Cleret patent.’ ” The order was then given and the letter written. Subsequently, it was judicially determined that the machines so purchased and paid for by the plaintiffs were infringements upon the Cleret patent. Damages were recovered for their use, whereupon they were returned to the defendants, and this suit was brought to recover for the loss sustained. On the trial, plaintiffs insisted that, by the terms of their contract, there had been an express warranty by the defendants that the machines would not infringe upon the patent, and the defense was, that, as the letter of November 16,1894, made the contract a written one, containing no warranty, parol evidence was not admissible to sustain the claim asserted.
It is true that the letter contains no guaranty; but there is unmistakable evidence on its face that it was but a part of the contract. Attention has already been called to the testimony of Kaufman, who is fully corroborated by Garvin. The latter says that, on the day the order was given, “ Mr. Kaufman Called Mr. Rehfuss’s attention to the similarity of the machines, and said that he did not care to get in any trouble from them. Mr. Rehfuss said: ‘ My dear sir, we are expert experimental machinists, and have been in the business for a great many years; know just exactly what we are talking about; and we will guarantee that this is no infringement of the Cleret patent. If ever these people bother you, send them to us, and we will fight them in the courts.’ ” The letter of November 16, 1894,
The offers to show exactly what the terms of the contract were having been properly allowed by the learned trial judge, the foregoing instructions to the jury were manifestly correct. They were in accordance with what was held in Holt v. Pie, 120 Pa. 425, where the late Justice Williams said : “So far as this order and acceptance express terms, they constitute the contract between the parties. They fix the amount of lumber to be furnished; the size into which it is to be cut; the kind of finish, and the price on the cars. But the order refers to a ‘verbal agreement of some days ago,’ and professes to be in confirmation of it. It does not profess to recite that agreement,
The ninth assignment is before us on the disallowance of the following question, asked one of the defendants : “ If the parts of that machine, called the Rehfuss machine, which were determined to be an infringement of the Cleret patent, were eliminated from the machine, what would bo the value of the machine ? ” This offer was properly overruled, because, if there was no warranty, there was no liability from the defendants to the plaintiffs; but, if a guaranty had been given, as the jury found, that the machines were no infringement upon the Cleret patent, plaintiffs had a right to return them as soon as the infringement was judicially ascertained, and, what the value of the machines might have been with that part of them patented by Cleret eliminated, was not material. The machines, with all their parts, were to be no infringement upon the other patent, if the testimony of plaintiffs was true. The offer was properly overruled, and this assignment is not sustained.
What we have said as to the foregoing assignments will, of course, lead us to overrule the tenth and last, and, in so doing, we may simply add that, as the record shows no objection made on the trial to the alleged defect in the pleadings, we will not consider it now, the case having been properly disposed of on its merits: Erie City Iron Works v. Barber, 118 Pa. 6.
Having overruled all the assignments of error, the judgment is affirmed.