Martin v. Pinney

[653]

MELVIN, J.

Defendants appeal from a judgment against them for sums found to be due under a contract giving them the exclusive right to manufacture and sell certain gas furnaces in California, Oregon, and Washington. In this contract Martin was designated as the party of the first part and defendants as parties of the second part. The agreement provided “that said first party, having the exclusive right to manufacture and sell in the states of California, Oregon and Washington, until the 8th day of February, 1914, the Vulcan Gas Furnace, with all improvements thereon or variations thereof, under the terms of an agreement with The Springfield Heating & Ventilating Company, a copy of which is hereto annexed and made part thereof, marked ' Exhibit A’ (the time limit of which contract has been extended to February 8th, 1914), does hereby sell, assign, and transfer to said second parties the exclusive right to manufacture, sell, and install in the states of California, Oregon and Washington, for the term expiring February 8th, 1914, said Vulcan Gas Furnace and all improvements upon or variations of said furnace, which may be made during the life of this agreement, upon the following terms and conditions, to wit:” Attached to this agreement as an exhibit was a copy of the contract between Martin and the Springfield Heating & Ventilating Company in which the said corporation gave to him “the exclusive right to manufacture and sell in the states of California, Oregon, and Washington, for a period of five (5) years from the date hereof, the Vulcan Gas Furnace, an invention of R. S. Thompson of the city of Springfield, state of Ohio (said Thompson having assigned all his rights in said invention to the said party of the first part), and all improvements upon or variations of said furnace which may be made during the life of this agreement.” It is not denied by defendants that if bound by the agreement, they would be indebted to the plaintiff in the sum demanded in the complaint. Their defense is: 1. Actual fraud on plaintiff’s part in securing their assent to the contract, and 2. “Failure of plaintiff’s grant, and consequent failure of consideration for defendants’ covenant to pay royalty.” Without an extended review of the evidence we may say that the court’s finding of the absence of fraud was amply sustained. When the agreement was made, the plaintiff, according to his testimony, gave full dis