Harris v. United Automatic Cigarette Co.

BISHOP, J.,

pro

tem.

Plaintiff seeks a reversal of the judgment, by which he was denied all relief, on the ground that the findings are contrary to and not supported by the evidence. We find his position well taken.

The action is based upon a contract between defendants (copartners) and plaintiff, in which it is recited that the plaintiff had been working for some time in defendant’s employ in the development of a cigarette vending machine, and that defendants were desirous of acquiring all plaintiff’s interest in “any inventions or especially constructive parts that may have been suggested . . . and evolved” by plaintiff while in their employ. Accordingly, the contract continued that plaintiff ‘ ‘ does hereby sell, assign and transfer ... all his right, title and interest in and to said invention or any of the parts or mechanism used in connection with said invention” to the defendants. He further agreed to execute such “additional assignment as may be necessary if any for formal recording in the United States Patent Office at Washington, D. C., of any patent that may be issued” to him. “For and in -consideration of the premises” defendants agreed to pay plaintiff $6,000 within about a year or at their option to issue 6,000 shares of the capital stock of the United Cigarette Company. Full performance on plaintiff’s part is alleged, and nonpayment .on that of defendants.

The execution of the agreement is admitted by silence in the answer (Code Civ. Proc., sec. 462) as is the fact of nonpayment. There is a denial that plaintiff fully performed, or was damaged, and it is denied that defendant had any interest in the vending machine or had any patentable ideas concerning one. By way of affirmative defense, it is alleged that there was a total failure of consideration, that defendants were induced to enter into the contract through fraud, and, finally, that there was a complete settlement. The trial court first finds that all the

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allegations of the complaint (not excluding those admittedly true) are not true, and that all the allegations and averments of the answer are true. These generous findings are immediately followed by others declaring that the allegations of the complaint with respect to the execution of the contract and the nonpayment of the $6,000 are true. The special findings govern the general