Kekich v. Blum

CONWAY, J.,

pro

tem.

This is an appeal from a judgment in favor of defendants on their cross-complaint cancelling a note in the sum of $10,000 secured by a mortgage on real property which Thomas M. Kekich sought to foreclose. Thomas M. Kekich, the original plaintiff and appellant herein, died testate since the filing of this appeal and Ellen Kekich, his wife, was substituted herein, as executrix of his last will and testament, on March 3, 1941.

On the 23d day of July, 1935, Thomas M. Kekich was the sole owner of letters patent covering the process and “a method of treating liquid matter” for use in smelting operations. The defendant Israel Blum was the owner and proprietor of the Mojave smelter and on said date the parties entered into a written contract wherein Kekich granted to Blum the exclusive right to use said invention for a term of two years upon smelters thereafter built in California, and expressly permitting the use of the patented process in the smelter belonging to Blum near Mojave. The contract further provided that Kekich, the patentee, was obligated to “blow in” the Mojave smelter and to act as superintendent thereof for a thirty-day period. At the time of the execution of the written contract Blum and his wife executed a $10,000 note payable to Kekich, secured by a mortgage on real property in Kern County, conditioned upon the performance of the obligation of Blum under the contract to erect at least one additional smelter in California using the invention and process covered by the patent.

Kekich, alleging default in the payment of the promissory note, brought suit to foreclose the mortgage and defendants

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filed a cross-complaint to cancel said note and mortgage alleging fraud and failure of Kekich to perform his part of the agreement. The court sitting without a jury rendered judgment for the defendants and cross-complainants, and plaintiff, after denial of a motion for new trial, has appealed from the judgment.

Appellant first contends that the court erred in concluding that the penalty provided in the contract was void as provided by section 1670 and 1671 of the Civil Code. She argues that the contract was unambiguous and certain, and upon its face was consistent only with the construction that the note and mortgage were given as consideration for the license and that it was the duty of the trial court to sustain its validity. Supporting this contention she cites the case of