Antioch College of Yellow Springs v. Barnhart

DRAPEAU, J. pro tem.

The plaintiff as assignee of the original payee sued to recover from the defendant maker on 26 non-negotiable promissory notes. These notes are similar in form, with the exception of amounts and dates, and some unimportant minor differences in text. In each note there appear the following two clauses:

“. . . payable semi-annually, out of the profits, proceeds or other avails of the inventions, whether patented or unpatented of said G-. Edward Barnhart for or in connection with seamless metal tubing, whether straight or tapered or metal rods, beams, and other metal parts, as and when the same shall be realized by said G. Edward Barnhart and not otherwise . . .

“The Statute of Limitations is hereby waived and shall not begin to run until the Maker shall inform the Holder of the above note that profits, proceeds, or other avails have been received which are applicable to the payment of said note.”

Upon the primary issue as to whether or not the defendant had received money from inventions referred to in the notes, the trial court found that he had received $41,569.13 in profit, proceeds, and other avails applicable to the payment of the notes. Although given the opportunity so to do, the defendant failed to testify to any proper offsets to this amount. On this issue the defendant’s testimony was evasive and shifty. After reviewing the extensive record, we can find no reason why we should disturb the finding of the trial court.

All through the case runs what might be termed another primary issue: Whether or not the notes in suit were an integral part of a contract represented by the notes and

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other writings between the maker and the plaintiff. This defense was urged by defendant on a number of different occasions, and ruled upon by different judges of the superior court: First, when the trial court sustained demurrers to portions of defendant’s answers, cross-complaints and counter-claims, without leave to amend. There were three of these pleadings: The answer, cross-complaint and counter-claim; the first amended answer, cross-complaint and counter-claim; the second amended answer, cross-complaint and counterclaim. Second, upon the refusal of the trial court to permit amendments to the pleadings to be made upon the trial of the ease. And third, upon the offer in evidence of the contracts which the defendant alleged were part and parcel of the notes in suit.