71 Pa. Super. 496 | Pa. Super. Ct. | 1919
Opinion by
The appellee was the inventor of an improvement in hose clamps, upon which, on August 18, 1913, letters patent had been allowed but not yet issued. On that date, he assigned a two-thirds interest in the patent to the appellants for the sum of one thousand dollars, of which two hundred dollars was paid in cash and the balance was to be paid (as set out in the receipt evidencing the transaction) as follows: “Three hundred ($300) dollars when the patent has been issued in accordance with assignment dated this date and forwarded to the patent office at Washington, D. C., to be recorded, and $500 (five hundred dollars) after the corporation has been formed as per agreement, and the patented article is ready for sale.” The agreement for the formation of a corporation, referred to in the receipt, was signed by all three of the parties on August 19, 1913, and provided for the organization of a corporation to manufacture and sell said invention, upon the issuing of the letters patent therefor, each party to be entitled to an equal one-third interest in the capital stock of said corporation. Following the agreement, the corporation was organized and the stock issued in accordance therewith, the appellee being made president, the appellant, Schmitt, secretary, and the appellant, Murphy, treasurer, and steps were taken to manufacture the patented article and get it ready for sale. The appel
The appellants filed an affidavit of defense, in which they denied that the patented article was manufactured and ready for sale on August 17, 1914, or at any other time, and averred that, in consequence, the last' payment of $500 had not become due and payable. The issue was, therefore, clear cut, and was restricted to the question whether the patented article was ready for sale at the time suit was brought by the appellee. The evidence on both sides was properly confined to the issue raised by the pleadings, the appellee presenting testimony that the hose clamp had been manufactured and ready for sale on August 24, 1914, and had been exhibited at various automobile shows, and the appellants denying this and alleging that the manufactured parts of the article had never been assembled, and that the clamp was never ready for sale, and also offering testimony in explanation of the payments of $199 credited on the third installment of the consideration for the assignment of the patent.
There was no averment in the plaintiff’s statement and no evidence offered by him that there was any bad faith or want of due diligence on the part of the defendants or of the corporation controlled by them in manufacturing the article and getting it ready for sale. He averred only that it had been manufactured and made ready for sale, and that the final payment under the terms set forth in the receipt was, therefore, justly due and payable. Nevertheless, the learned trial judge, in his charge to the jury, said: “There is another question in the case that a discussion would have brought
At the close of his charge, the learned judge also said to the jury: “In our opinion, under the law and under the facts, the plaintiff is entitled to a' judgment, but I leave that matter entirely for your consideration. We are leaving the matter in your hands without express or binding instructions, because if we err we can control the matter afterwards.” This was going beyond the widest latitude of comment or expression of opinion on the evidence permitted to a trial judge by the decisions of this State. The language complained of was not
Nor was the error such that it could be cured by referring the matter to the jury for their consideration: Burke v. Maxwell, 81 Pa. 139. As was said by the President Judge of this court in the case of Spitzel v. Hunt, 39 Pa. Superior Ct. 631: “Such a statement coming from the bench would control, or at least very seriously affect, the determination of the jury.” The seventh assignment of error is sustained.
The remaining assignments are without merit. The minutes of the corporation, written by the defendant, Schmitt, of the meeting of October 26, 1914, attended
The judgment is reversed and a venire facias de novo is awarded.