118 Mass. 279 | Mass. | 1875
The causes assigned in the demurrer are, 1st, that the contract sought to be enforced is not in writing; 2d, that it is against the course and practice, and not within the jurisdiction of this court, to entertain suits for the specific performance of oral contracts; 3d, that the plaintiffs have not stated such a case as entitles them to any discovery or relief in equity.
1. In support of the first cause assigned, the defendant relies on the section of the statute of frauds relating to the sale of goods, wares or merchandise; Gen. Sts. c. 105, § 5; and also on the clause of the same statute relating to agreements not to be performed within one year from the making thereof. § 1, cl. 5.
It was held by the Court of Chancery in England, before the American Revolution, that shares in a corporation were goods, wares and merchandise within the statute of frauds. Mussel v. Cooke, Pre. Ch. 533. Crull v. Dodson, Sel. Cas. in Ch. 41. And it has been held by this court that such shares, and even promissory notes, fall within the statute. Tisdale v. Harris, 20 Pick. 9. Baldwin v. Williams, 3 Met. 365. But the modern decisions in England are the other way, and the decisions in other states are at variance. Browne on St. Frauds, §§ 296, 298. 1 Chit. Con. (11th Am. ed.) 541 note. The words of the statute have never yet been extended by any court beyond securities which are subjects of common sale and barter, and which have a visible and palpable form. To include in them an incorporeal fight or franchise, granted by the government, securing to the inventor and his assigns the exclusive right to make, use and vend the article patented; or a share in that right, which has no separate or distinct existence at law until created by the instrument of assignment ; would be unreasonably to extend the meaning and effect of words which have already been carried quite far enough. See Chanter v. Dickinson, 6 Scott N. R. 182; S. C. 5 Man. & Gr. 253.
But it is not necessary in this case to go so far as to say that a sale of letters patent for an invention is not within the statute of frauds. Before letters patent are obtained, the invention exists only in right, and neither that right, nor any evidence of it, has any outward form which is capable of being transferred or delivered in specie, or which, upon any construction, however liberal,
We are therefore of opinion that the contract set up in the bill was not an agreement for the sale of goods, wares or merchandise, within the statute of frauds.
The agreement to obtain letters patent might be performed within a year, and it does not appear by this bill that all the efforts required of either party, to make the invention available and remunerative for the common benefit, might not also be exerted within that time. As it does not appear that the contract could not be performed within a year, it does not fall within the statute of frauds. Blake v. Cole, 22 Pick. 97. Doyle v. Dixon, 97 Mass. 208. Browne on St. Frauds, §§ 272-282. It may be doubted whether the case of Packet Co. v. Sickles, 5 Wall. 580, cited by the defendant, in which an oral contract to pay, for a right to use an invention on a certain steamboat, so much a year during the term of a patent having twelve years yet to run, “if the said boat should last so long,” was held to be within the statute, can be reconciled with the general current of authority in this Commonwealth and elsewhere; but it is quite unlike this case, in which it does not appear that the parties contemplated that the time for the performance of their contract should exceed a year.
Under the Revised Statutes, indeed, the equity jurisdiction of this court to decree specific performance was confined to written contracts. Rev. Sts. c. 74, § 8; c. 81, § 8. But by the St. of 1857, c. 214, the Legislature conferred upon this court “ full equity jurisdiction, according to the usage and practice of courts of chancery, in all cases where there is not a full, adequate and complete remedy at law.” The reenactment of this statute in the Gen. Sts. c. 113, § 2, is not to be limited in effect by reason of its being accompanied by a reenactment of the more restricted provisions of the Revised Statutes and of the successive statutes by which our equity jurisdiction had been from time to time extended.
3. The oral agreement of the parties, alleged in the bill, that the invention and all letters patent which should be granted therefor should be their joint property, in proportions specified, stands upon the same ground as if it had been in writing. Such an agreement, though made before the issue of a patent, is valid, and capable of being enforced in equity by compelling an assignment, an account and such other relief as the circumstances of the case may require. Herbert v. Adams, 4 Mason, 15. Nesmith v. Calvert, 1 Woodb. & Min. 34. Clum v. Brewer, 2 Curtis, 506. Binney v. Annan, 107 Mass. 94. Although a court of equity will not ordinarily decree specific performance of an agreement to form a partnership, which may be immediately dissolved by either party, it will secure to a partner the interests in property to which by the partnership agreement he is entitled.
The bill sufficiently alleges that the plaintiffs performed the agreement on their part, and that the profits received before the issue of the patent were duly divided between the parties. It is not alleged, and is not to be presumed, that the plaintiffs have received any profits, for which they are bound to account, since the defendant procured the patent to be issued in his own name alone.
For these reasons, none of the causes of demurrer assigned afford any ground for refusing to entertain jurisdiction of the bill. The objection of loches was not taken in the demurrer filed, nor assigned ore tenus at the hearing before a single justice. It is therefore not open to the defendant. Demurrer overruled.