122 Ky. 181 | Ky. Ct. App. | 1906
— Reversing.
By the decree appealed from in this case appel-lee was adjudged to he the owner of an undivided half of patent numbered 732,232, for a portable horse stall, issued to the- appellee by the United States in November, 1902; the judgment being based upon an alleged assignment claimed by appellee to have been made him by appellant by written instrument of date August 16, 1899. It appears that appellant in 1897 secured a patent, No. 591,792, for a “knock-down horse stall” of his own invention. In 1899 he invented and secured a patent, No. 629,726, for a portable horse stall designed for shipping horses on cars. Before the last patent was issued appellant assigned all of his interest in No-. 591,792, except an undivided fifth, and by writing of August 16, 1899, he assigned to appellee a one1-tenth interest in patent No. 591,792, and a one-half interest in patent No. 629,726, and also similar interests in any improvements that might be made by appellant on these two patents.
The particular clause of the assignment upon which appellee rests his claim is as follows: “Also a similar interest in and to any and all improvements which I may hereafter make on either of the above patents named, that is I assign and transfer unto the said James A. Withers an undivided one-tenth interest in all improvements I may make on patent issued to me on July 25th, 1899, known as No. 629,726.” It appears from the pleadings that appellee’s claim is that patent- No. 732,232, in which he was adjudged a half interest by the chancellor, is but an improvement upon patent No. 629,726, and that, whether this is or not true, by contract between himself and appel
The defense interposed by appellant’s answer is that patent No. 732,232 is not an improvement on patent 629,726, but that it is an entirely new, separate, and distinct invention, and that there was no agreement with appellee that it should be deemed such an improvement, but that he offered appellee a half interest in the new patent, No. 732,232, provided the latter would pay him (appellant) for his work in trying to improve- the old stall, as he had theretofore agreed to do, but had not done, and would pay him for the time he had spent- in constructing a full size- stall and model for the new patent and for the material used therein, and furnish money to- secure the patent and to develop the new stall and put it on the market. The conditions-, the answer alleges, were agreed to by appellee, and that he did in pursuance thereof pay appellant $55, but failed and refused to pay any more, and abandoned the agreement, though-repeatedly urged by appellant not to do so, by reason of which appellant was forced to seek assistance and money from others in order to construct his model and secure the patent thereon; that appellant offered to one G-. W. Wohlgamuth a half interest in his invention upon substantially the same terms theretofore made with appellee, which Wohlgamuth accepted, and after paying appellant in small sums- $88.75, in pursuance of their agreement, he, too, refused to pay more, and abandoned the undertaking, after which appellant succeeded in- enlisting J. B. McCormick in the last invention, and, McCormick having furnished
On May 12, 1902, appellant notified appellee in writing that the stall and modebwould he completed and ready for his inspection on the 17th of May, and on May 19th he saw and in person notified appellee that the stall was then complete and ready for his inspection. Appellee denied that either notice was received by him, yet he filed with his petition the letter containing the first notice. According to the evidence, appellant kept the stall set up and awaiting appellee’s inspection from May 17th to September, 1902, but the latter did not go to see it, or inspect it. In September, 1902, appellant, having secured the space necessary for the purpose, exhibited the stall at the State Fair held m the city of Louisville. Appel-lee was at the fair and met appellant there, hut did not inspect the stall or make any inquiry of appellant about it. Thus a period of about six months elapsed between the completion of the model and the issual of the new patent, during which appellee, though
It also appears from the evidence that the arrangement between appellant and Wohlgamuth was made during the fair, whereby the latter was to assume the undertaking abandoned by appellee, and take the same interest in the new patent to which appellee would have been entitled had he complied with his agreement made with appellant. Being disappointed by the failure of Wohlgamuth to comply with his undertaking, appellant entered into the contract with McCormick, whereby the latter repaid Wohlgamuth the $88.75 he had advanced appellant, and upon the same terms, that had been agreed upon between appellant and. appellee became a partner1 in the new invention, furnished the needed funds to develop and have it patented, and received from appellant an assignment of an undivided half interest in the new patent. We are satisfied that appellant would not have succeeded in perfecting the last invention, or in securing the patent upon it, but for the assistance of McCormick, and it is equally certain that but for the energy and business sagacity of the latter the profitable contract with the American Express Company for its use of the new stalls would not have been consummated.
Frqm the evidence as a whole, we are convinced that appellee, on account of his expenditures and the apparent loss of not less than $2,000 in attempting to develop and improve patent No. 629,-726, came to the conclusion that appellant would fail upon the last invention, or, if patented, that it would
We now come to the consideration of the really vital question in the Case. Is patent No. 732,232 an improvement on No-. 629,726, or is it an independent and distinct invention1? If it is merely an improvement, then clearly appellee was entitled under the writing of August 16, 1899, to the relief allowed by the judgment appealed from, independently of any
A number of cases besides those mentioned may be cited as illustrating the principle announced; one of the most notable being Stebbins Hydraulic Elevator Co. v. Stebbins (C. C.), Fed., 445. In this case the facts in brief were: That the defendant, Stebbins, was the owner of patent No. 132,111, of date October 8, 1872, for improvements in hydraulic elevators. On the same date patent 132,112, for improvements in safety devices for hydraulic elevators, was also' issued to him. In the following month Stebbins, and others associated with him, assigned these patents to the plaintiff, Stebbins Hydraulic .Elevator Company; the assignment containing this provision: “Together with the right to modifications, improvements or reissues thereof, and all other or similar patents in the United States which may be issued to us, or any one of us, directly or indirectly, in or of, or in aid of the
Upon the whole case our conclusion is that the chancellor erred in adjudging to appellee a half or any interest in patent No. 732,232. We think, however, he should be repaid the $55 he expended on the model of patent No. 732,232 before bis abandonment of the agreement he made with appellant to furnish the money for its construction and tp procure the patent therefor, and this, sum, as. appears from the record, appellant tendered him, before suit, but he refused to accept it.
For the reasons indicated, the judgment is reversed and cause remanded that it may be set aside, and in
Petition for rehearing by appellee overruled.