Scott v. Jackson

Paterson, J. — This is an action to recover the sum of fifteen hundred dollars, the contract price of several United States letters patent, sold by plaintiff’s assignor, Watkins, to defendant, under an agreement dated July 19, 1885. The contract of sale provided that Watkins should assign, deed, and deliver to defendant all of his patents for harvesting machinery for the sum of fifteen hundred dollars, one half of which was made payable November 1, 1885, and the balance November 1, 1886. The contract provided that the assignment was to be made as soon as a settlement was made by Watkins with Rice.

The court found that a settlement was made by Watkins with Rice in March, 1885; that at all times subsequent to January 19, 1885, Watkins was ready and willing to assign the patents to defendant, and that in December, 1887,— prior to the commencement of this suit, — he tendered an assignment in writing to the defendant of all the letters patent, except patent No. 97,646, which had expired on the first day of December, 1887. The contract was assigned by Watkins to the plaintiff herein January 20, 3886. Judgment was entered in the court below in favor of the plaintiff for the amount claimed; the defendant moved for a new trial, which motion was denied, and he thereupon appealed from the order and from the judgment.

It is claimed by appellant that Watkins could not put Jackson in default without an offer to perform; that-readiness to perform is not the same as performance; that the tender of the assignment came too late, not having been made until two years and eight months after the settlement with Rice; that at that time it was impossible for Watkins to perform, because one of the patents had already expired, and defendant cannot be required to take less than all of the property Watkins agreed to sell.

Of course, Watkins could not put Jackson in default [261]without an offer to perform in accordance with the terms of the contract, and if there were nothing in the case to overcome the effect of the finding that Watkins did not tender an assignment of the letters patent until December, 1887, the defendant would be entitled to judgment; but the court found “that the delay in making the assignment of said patents was not caused by the neglect or refusal of said Watkins to make an assignment, but was acquiesced in by both parties to this contract”; and we cannot say that this finding is not supported by the evidence. It appears from the testimony that at the time the contract set forth in the complaint was entered into the defendant was engaged in manufacturing and selling agricultural implements, and was the owner of letters patent for the manufacture of such implements. Watkins was also the owner of certain patents and improvements in agricultural implements, and was having his machines manufactured at the establishment of Rice, and was engaged in selling the same in competition with the defendant. Jackson claimed that Watkins was unlawfully infringing upon his patents, and litigation was threatened. The contract set forth in the complaint seems to have been entered into in compromise of the differences between the parties; Watkins agreed to sell to Jackson all of his letters patent for the sum of fifteen hundred dollars, make a settlement with Rice, and collect royalties for machines sold prior to January 1, 1885, and devote his entire time in the capacity of salesman and traveling expert for defendant, for which he was to receive the sum of fifteen hundred dollars per year. Immediately after the execution of the contract, the patents were delivered by Watkins to Jackson. Watkins ceased to manufacture or sell any more of his machines, and remained in the employ of the defendant from January 19, 1885, until the early part of 3886, when he demanded a settlement under the contract. The defendant seems to have considered it important to