Keith v. Electrical Engineering Co.

[179]

COOPER, C.

This case was tried in the court below, with a jury, and a verdict rendered for plaintiff, upon which judgment was entered. The defendant appeals from the judgment and from an order denying its motion for a new trial.

The action was brought to recover the royalty on the sale of dynamo-electric machines by defendant under the terms of a contract made with plaintiff. The contract in the verified complaint is alleged as follows:—

“That, heretofore, to wit, on the 3d day of November, 1886, the plaintiff, being the inventor of a certain invention for a dynamo-electric machine, upon due application therefor, did obtain, and there were granted and delivered to him, letters patent of the United States numbered 353,310 for said invention, granting and securing to plaintiff for the full term of seventeen years from the date last aforesaid, the full and exclusive right and privilege of making, constructing, using, and vending to others to be used, the said invention throughout .the United States and all the territories thereof. Said invention is fully described in the specifications of said letters patent, a copy thereof is hereto annexed, marked ‘Exhibit A,’ and made part hereof.

“Plaintiff further avers that on, to wit, the 8th day of May, 1890, plaintiff granted unto the defendant herein the exclusive right to make, use, and vend in the states of California, Colorado, Nevada, Montana, Oregon, and Washington, and in the territories of Alaska, Utah, Arizona, and Idaho, the invention covered by said letters patent, for the full term of said letters patent, and in consideration of said license said defendant then and there agreed to pay to plaintiff a royalty of three per cent of all moneys realized by said defendant from the sale of all articles manufactured by said defendant under said letters patent, which said amount said defendant then and there agreed to pay to plaintiff at the end of every six months during the life of said letters patent.”

“Exhibit A,” referred to and annexed to the complaint, is a copy of the specifications of the letters patent issued to plaintiff, and states that plaintiff has “invented certain new and useful improvements in dynamo-electric machines,” and that the invention consists of,—1. Constructing the body or