Pelton v. Andrews

WOOD, J.

This action was filed June 2, 1934. Thereafter the defendant, A. V. Andrews, died and probate proceedings were commenced. The executor of his will rejected a claim filed in the probate proceedings. Substitution of the executor was made as a party defendant in the present action and a trial was conducted resulting in judgment for the defendant, from which plaintiff prosecutes this appeal. Hereinafter A. V. Andrews will be referred to as the defendant.

Plaintiff is an inventor, and defendant was during the time of the transactions which are the subject of the litigation, a lawyer practicing in Los Angeles. He had had experience in patent matters but was not a registered patent solicitor. Under date of May 7, 1928, plaintiff wrote to defendant a letter which was accepted by defendant and became a contract between them. The part of the letter which is important in the present litigation follows: “Referring to the services which you have rendered to me heretofore in connection with the preparation, development and application of patent upon my invention of coated ribbons for typewriters and other machines, and also to my invention for the application of cellulose coating material to various base materials, fibres and cloths and to paper for various and sundry uses, and referring to one or more set-ups or combinations of machinery and appliances for use in the production of products under said respective inventions,—I propose that, in addition to the services you have already rendered in connection with the inking ribbons and the like, you shall render from time to time such service as may be required in working out and preparing applications for patent and amendments thereto with reference to the inventions above briefly outlined, and shall render such further advisory service as may be found necessary or desirable from time to time in connection with the respective patent applications on the above subjects and also such suggestions as may occur to you concerning features which should receive further consideration or experiment in connection with the fuller development of said inventions,

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processes and/or appliances,—it being understood that you are not required to make personal appearances before the Patent Office or handle the technical or clerical matters involved at Washington, ...” For the services to be performed under the contract plaintiff agreed to pay defendant the total sum of $10,000. The sum of $1,000 was actually paid. In his complaint plaintiff alleged that defendant breached the contract on or about the month of June, 1929, and thereafter “failed, neglected and refused to perform or do any of the things required by him under and by virtue of the terms of said contract” and that the services performed by defendant were of no value to plaintiff. Plaintiff further alleged that he had been required to employ other attorneys to perform the work which defendant had agreed to perform and that he was thereby damaged in the sum of $4,608.70. The trial court found that defendant performed the services required of him in accordance with the terms of the contract and that they were of great value to plaintiff. The court further found that plaintiff himself abandoned the contract on or about July 10, 1929, and that the action is barred by subsection 1 of section 337 of the Code of Civil Procedure. These findings are now attacked by plaintiff.