Bryant v. Smith

SHAW, J.

Plaintiff appeals from a judgment of nonsuit in favor of the defendants other than Josiah A. Briggs and Herbert L. Smith.

The appeal was submitted at the January term upon a typewritten record, no part of which was printed in appellant’s brief as required by section 953c of the Code of Civil Procedure. While in a supplement appellant has, pursuant to an order of court, printed certain documentary evidence from the record, to which no reference is made in his brief, it is wholly insufficient in illustrating the errors complained of. Nevertheless, in the absence of aid from appellant’s counsel, we have examined the typewritten record in an effort to ascertain and determine the question presented to the trial court. Briefly stated, it appears therefrom that on June 28, 1918, plaintiff entered into a contract with Josiah A. Briggs and Herbert L. Smith whereby he, as the owner of letters patent No. 1,258,530, covering machinery, devices, and a process for the manufacture of food products, granted to them, subject to revocation for breach of covenants, the right during the life of the patent to use the same in certain designated states, together with the right to manufacture, use, and sell throughout the territory mentioned such machines, implements, and devices invented by plaintiff for the manufacture of such food products, for which Briggs and Smith were to pay a royalty of two dollars per ton on all finished products manufactured under the provisions of said letters patent until such royalty amounted to $250,300. The contract further provided that its terms and conditions should apply, bind, and inure to personal representatives of the respective parties thereto, and for breach of the covenants made by Briggs and Smith, Bryant might at his option revoke the grant and terminate the contract. In consideration of the making of the agreement, Briggs and Smith promised to pay in monthly installments on the seventh day of each month certain sums, which in the aggregate amounted to $250.02, and which installments the complaint alleges were paid to March 7, 1920, but that the installments due on the seventh days of April, May, June,

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and July, 1920, amounting for each, month to $250.02, have not been paid, and for the recovery of which this action was instituted.

After the execution of the agreement, Briggs and Smith assigned to Owen A. Williams a one-third interest in said agreement, subject, however, to a one and one-half per cent interest therein to W. H. Hodson and an eight per cent interest therein to Margaret A. Brown, after which, to wit, on June 5, 1919, Williams assigned to defendant Mansfield a ten per cent interest in said patent and stock and funds derived from the same, and on July 26, 1919, assigned to defendant Peek a two and one-half per cent interest in said patent and stock, and later, on September 30, 1919, assigned to defendant Chandler all his remaining interest in said patent and stock and an interest in 5,500 shares of the capital stock of the Cactus Pood Products Company. The assignments from Williams to Chandler, Peck, Mansfield, and Hodson were mere naked assignments and contained in terms no assumption on their part of any of the obligations imposed by the contract. We are directed to neither allegation nor evidence showing that any of such assignees ever utilized the subject of the patent in the manufacture of food products, or manufactured or sold any of the devices or machinery therefor.