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(161 N.E.)

canal, or, as stated by one of the witnesses, "unless you cross at a bridge way above or below it, namely three miles one way" and "about a mile and a half the other way." The character of this land is such that no one is in the actual possession thereof. The defendants Campbell, as the heirs at law of James H. Campbell, are entitled to have their title to this land quieted as against the plaintiff and the other defendants. The decree of this court therefore is that the petition of the plaintiff be dismissed and that the title of the defendants Matilda G. Campbell, Alice Campbell, and Julia Campbell be quieted as against the plaintiff and the other defendants. See Miller v. Neiman, 27 Ark. 233; Barton v. Swepston, 44 Ark. 437; Donnelly v. Simonton, 7 Minn. 167, 172; Westbrook v. Schmaus, 51 Kan. 558, 33 P. 306; Kruczynski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; Day Land & Cattle Co. v. State, 68 Tex. 526, 4 S. W. 865; Christy v. Springs, 11 Okl. 710, 69 P. 864.

RICHARDS, P. J., and WILLIAMS, J.,

concur.

(118 Ohio St. 392)

KUHN v. CAMPBELL et al. (No. 20838.) Supreme Court of Ohio. April 4, 1928.

(Syllabus by Editorial Staff.) 1. Sales279-Statement in catalogue that horse sold at auction could trot 2:15 gait held guaranty that horse could trot gait at time of sale.

Statement in catalogue at auction sale of horses that particular horse sold "can trot a 2:15 gait" was not a representation as to past performances, but a guaranty that horse could trot gait mentioned at time of sale.

2. Sales279-Instruction to direct verdict for defendant, if horse attained guaranteed gait prior to sale, held properly refused; testimony of gait prior to sale being relevant, but not conclusive.

In action to rescind sale of horse, guaranteed to "trot a 2:15 gait," testimony relating to gait of horse at some time prior to sale, though relevant, was not conclusive, and hence instruction to direct verdict for defendant, if horse attained speed mentioned at some time prior to sale, was properly refused.

3. Appeal and error 1002-Judgment sustaining jury verdict rescinding sale of horse, based on conflicting evidence, will be affirmed. Where issue whether horse sold at auction had approximated gait guaranteed by owner in sale catalogue was submitted to jury under conflicting evidence, and verdict was sustained by lower courts, judgment rescinding sale will be affirmed.

ty.

Action by Presley Campbell and another against Paul Kuhn. Judgment for plaintiffs was affirmed by the Court of Appeals, and defendant brings error. Affirmed.-[By Editorial Staff.]

In December, 1922, Campbell and Wise, the plaintiff's below, went to the Chicago horse sale, and at an auction there conducted purchased from Kuhn, the defendant below, a horse then slightly under two years of age, named "Red Harvester." The purchase was made on cerain printed representations and warranties contained in the sale catalogue. The catalogue contained the following statements:

"This gelding was sick at the time of our breeders' meeting; consequently we did not mark him. He is a beautiful type little gelding, and an exceptionally good gaited trotter. He has never had much training, but can trot a 2:15 gait, and do it right, and with little training there is no reason why he should not make quite a trotter, as his dam has produced two champions, and all he needs is a chance. He is eligible to any class."

"Warrants-The name of the owner, who is the responsible party, is given with each entry, and all representations are guaranteed by him. Age, height, speed and other matters of that character are approximated by the consignor and are not guaranteed unless expressly so announced."

In their amended petition, plaintiffs, alleging that the defendant represented that the horse "was good for racing, and that he could trot a 2:15 gait and do it right," aver that neither at the time of sale nor since has the horse been able to trot this gait and that the warranty in respect thereto was false. They pleaded a tender of the horse to the defendant.

The defendant's answer denied the allegations of the amended petition, averred that "said owner's statement was not a warranty or guaranty," and alleged that, if the colt was unable to trot a 2:15 gait, the same was due to improper care and handling.

The cause came on for trial, and resulted in a verdict for the plaintiffs. The judgment thereon was affirmed by the Court of Appeals, and error thereto is now prosecuted to this

court.

Boyd, Cannon, Brooks & Wickham, of Cleveland, for plaintiff in error. Turner, Ake & Abt, of Canton, for defendants in error.

PER CURIAM. The parties, as well as the court, seem to agree that the representations and warranty contained in the catalogue were that the horse could trot approximately a 2:15 gait. The sole issue in the case was whether Red Harvester could, at the time of sale, trot

Error to Court of Appeals, Cuyahoga Coun- at such a gait, and upon that issue there was

conflicting testimony. At the trial, the con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tentions of counsel for opposing parties were substantially as follows: The plaintiffs relied upon the testimony of expert horsemen who testified that in order to ascertain the speed and gait of a horse, the usual and customary distance for timing it was a quarter, or an eighth, of a mile, but more usually an eighth. On the other hand, the defendant of fered testimony of a witness, also an expert, who testified that the expression, "a horse can trot a 2:15 gait," meant in racing parlance that the speed determining the gait could be ascertained either at a quarter or an eighth of a mile, or even at a shorter distance, if it were capable of timing.

Whether the plaintiffs' contention, under the testimony adduced was right or otherwise we need not here decide, for the simple reason that manifestly the court adopted the view of the defendant's counsel, and gave to the jury the special request asked by him, over the objection of counsel for plaintiffs. This special request asked, and which was given before argument, was as follows:

"A 2:15 gait in a horse means a flight of speed for a reasonable distance shorter than a mile, which, if continued for the full mile, would make the time for the mile two minutes and fifteen seconds. This shorter distance need not be any particular distance to evidence a 2:15 gait, but should be such a distance as can be readily timed."

It will be observed that, under this request although there was testimony tending to prove that the usual and customary distance for determining speed was at the half or quarter mile post, the court in response to the contention of plaintiff in error, charged the jury that a distance shorter than a mile "need not be any particular distance to evidence a 2:15 gait." The case then assumed an aspect where the weight of evidence was involved rather than the charge of the court, since the court gave the charge asked for by counsel for the plaintiff in error.

The auction sale was made in December, 1922, under a representation that Red Harvester "can trot a 2:15 gait and do it right." Counsel for defendant below also asked for a special instruction that, if the jury found from the evidence "that some time prior to the date of December, 1922," Red Harvester had attained this speed for a portion of a mile, capable of being readily timed, etc., their verdict should be for the defendant.

[1, 2] The catalogue statement was not a representation as to past performances, but a guaranty that the horse could trot the gait mentioned at the time of the sale, and, while testimony relating to its gait at some time prior to the sale would be relevant, it was not conclusive, in view of the evidence adduced by the plaintiffs, and therefore did not justify the direction of a verdict for the defendant. The request, therefore, was prop

erly refused. The evidence upon the rate and trial testing of the speed was substantially as follows: A witness for defendant testified that he had the care and training of the horse prior to its sale, and that in November, 1922, it had been timed by him at various distances; that it had trotted a quarter of a mile in 36 seconds, or at a 2:24 gait; an eighth of a mile in 17 seconds, or at a 2:16 gait; and a sixteenth of a mile in eight and a quarter seconds, or at about a 2:12 gait. No other testimony was offered by defendant as to the horse's timing. On the other hand, in the spring and summer of 1923 and at later times, the plaintiffs had the horse timed at varying distances of a quarter and an eighth of a mile, and the testimony tends to disclose that the best speed he was able to develop in 1923 was a quarter of a mile in 37 seconds and an eighth of a mile in 18 seconds; and that in the following year's timing the best speed he was able to develop was 36 seconds for the quarter and 18 seconds for the eighth, or at a rate of 2:24 per mile.

[3] The issue whether the horse had approximated the gait guaranteed by the owner in the sale catalogue was submitted to the jury, and, their verdict upon that issue having been sustained by the lower courts, the judgment will be affirmed. Judgment affirmed.

MARSHALL, C. J., and DAY, JONES, and MATTHIAS, JJ., concur.

(27 Ohio App. 173)

JOHNSON v. UPRITE MFG. CO., Limited. Court of Appeals of Ohio, Hamilton County. July 5, 1927.

1. Patents 193-Owner of patent may authorize licensee to prosecute infringers (35 USCA § 47).

Right of owner of patent under 35 USCA § 47, to assign an interest therein, includes a right to assign and authorize licensee to prosecute infringers.

2. Patents 206-Instrument granting right to manufacture devices made according to patent and providing for prosecution of infringers held license (35 USCA § 47).

Instrument granting sole and exclusive license to manufacture, sell, and use devices made according to patents and providing for prosecution of infringers, not having been propunder 35 USCA § 47, held to constitute merely erly acknowledged or recorded as assignment a license ceasing according to its terms on licensee's ceasing to do business.

Action by the Uprite Manufacturing Company, Limited, etc., against Mary M. Johnson and others. Judgment for plaintiff, and defendant named brings error. Reversed and

(161 N.E.)

[blocks in formation]

CUSHING, J. Edward Johnson owned a number of patents, covering braces and suspensories. He and Mary M. Johnson conducted a business under the name of the Uprite Manufacturing Company. In March, 1916, a corporation was formed under the name of the Uprite Manufacturing Company, for the purpose of manufacturing and dealing in surgical appliances, webbing, elastic material, and all devices to be worn for the care and protection of the body, or any part thereof. On March 14, 1916, Edward Johnson and the Uprite Manufacturing Company signed an agreement, of which the following

is a copy:

"March 14, 1916.

"In consideration of the purchase by the Uprite Manufacturing Co. of the business of the partnership doing business under the name of Uprite Manufacturing Co. Edward Johnson, one of the partners of said business, hereby grants to said the Uprite Manufacturing Company the sole and exclusive license to manufacture, sell and use, devices made according to any and all letters patent which he now owns or may hereafter obtain, wherever such devices come within the scope of the business of said Company as stated in their articles of incorporation.

"Provided, however, that if the Uprite Manufacturing Company upon due notice in writing to each of the stockholders decide that they shall not prosecute any infringer of said patents, at a meeting of such stockholders called for that purpose, then said Johnson shall have the right to prosecute such infringers at his own cost and retain all moneys obtained by way of settlement or damages in said suits, and the said Company will sign all papers necessary to enable said Johnson to prosecute said suits. Edward Johnson. The Uprite Manufacturing Company. by Edward Johnson, Pres.; Elizabeth La Fetra, Secy."

Edward Johnson died in 1918, leaving surviving him his widow, Mary M. Johnson, and Pauline Johnson Fischer, his foster child. Some time subsequent thereto, the Uprite Manufacturing Company became involved. A receiver was appointed, who sold all the property of the corporation to Joseph Nienaver. He then transferred the property so purchased to the Uprite Manufacturing Company, a limited partnership. That company prosecuted an action in the court of common pleas praying that the title to all the patents issued to said Johnson, which are germane to the plaintiff's business, and its right to make, sell, and use all devices and appliances, and instruments covered by said patents, be established, that the claims of the defendant and all and each of them antagonistic to said title and right of the plaintiff be declared to

be a cloud upon such title and right, that the defendants and each of them be forever sertion of their said antagonistic claims, and barred and enjoined from the further asasked for damages in the sum of ten thousand dollars, and for such other and further relief as the plaintiff may be entitled to under the facts and the law of this case.

Mary Johnson answered that in 1917 Edward Johnson by written instrument transferred to her his property of every character whatsoever; that said Edward Johnson never, at any time, transferred to the corporation, the Uprite Manufacturing Company, the said patents; that she never transferred said patents to said corporation; and that said patents are her property.

Judgment was entered by the trial court for plaintiff below, and this action is prosecuted to reverse that judgment.

The only question in the case is whether or not the instrument of March 14, 1916, was an assignment of the patent or a license to use it.

The defendant in error claims that it was an assignment. The plaintiff in error contends that it was a license.

There was no assignment as provided by the statutes of the United States (Title 35, § 47, U. S. Code [35 USCA § 47]), as the instrument was not acknowledged, nor was it recorded, as required by the statute.

We are not unmindful of the holding of the Supreme Court of the United States and of the Circuit Court of Appeals of the United States, to the effect that a grant, transfer, or conveyance of the exclusive right to make, use, and vend articles patented, if this exclusive right extends throughout the United States, in law is an assignment of the patent, by whatever name it is called. Paulus v. M. M. Buck Mfg. Co., 129 F. 594, 64 C. C. A. 162; Waterman v. Mackenzie, 138 U. S. 252, 11 S. Ct. 334, 34 L. Ed. 923; Independent Wireless Telephone Co. v. Radio Corporation of America, 269 U. S. 459, 46 S. Ct. 166, 70 L. Ed. 357.

The language of the first paragraph of the instrument in question is plain and unambiguous. The grant is of the sole and exclusive license to manufacture, sell, and use devices made according to any and all patents, etc. There is no language intimating that there was to be a sale or an assignment of the The devices manufactured under patent. the terms of this instrument must be made according to the patent, which the grantor owns or may hereafter obtain. This language is inconsistent with the idea that there was to be an assignment, or a sale of the patent. The use was limited to the corporation. It was not made to the company and its successors or assigns. So that the company named would only have the right to manufacture, sell, and use the devices. It follows that if it ceased business, all rights under the instrument would terminate.

The intention gathered from the language might be stated thus: So long as the Uprite Manufacturing Company, a corporation, continues in business, it shall have a right to manufacture, sell, and use devices made, according to the letters patent, but only such devices as come within the scope of the business of said company, as stated in its articles of incorporation.

The language of the second paragraph of the instrument is not clear. It provides that, if, upon due notice, in writing, to each of the stockholders, they shall decide that they shall not prosecute any infringers of said patents, Johnson shall have the right to prosecute the infringers at his own cost and retain all moneys obtained by way of settlement or damages, and the company will sign all papers necessary to enable Johnson to prosecute said suit.

Title 35, § 47, U. S. Code (35 USCA § 47), provides that any patent or any interest thereon shall be assignable at law by an instrument in writing.

In Nye Tool & Machine Works v. Crown Die & Tool Co., 276 F. 376, the Circuit Court of Appeals of the United States held that the owner of a patent, under the statute, could assign a right of action against a single infringer, with the right to restrain future infringement, and to cover damages for past infringements.

[1, 2] The writing under consideration grants a license to the corporation, and by the second paragraph gives the licensee the right to prosecute any and all infringers. The right to prosecute infringers cannot be construed to change the license to manufacture, sell, and vend the devices under the patents into an assignment of the patents. We concede that a licensee has no authority to prosecute infringers in his own name. But, under the statute, the owner of the patent could assign any interest therein. This right to assign an interest would include the right to assign and authorize the licensee to prosecute infringers. It is an assignment of an interest in the patent, and not of the patent itself. To construe the writing to be an assignment would be to transfer the property right to the patent, and such construction would give the corporation the right to dispose of the same to its successors and assigns. There is no language authorizing such a construction. We are not unmindful of the cases that hold that the name of the instrument does not determine its character, and we are in accord with the other class of decided cases that hold that any instrument that secures to another anything less than the exclusive right to make, use, and vend the invention it protects is not an assignment, but a license.

The licensee under this instrument having ceased to manufacture, sell, and use the de

vices covered by the patents in question, it should be held that its rights thereto ceased when it failed or quit doing business, as provided in the instrument, and that the title to the patents remained in Edward Johnson, his heirs, or personal representatives.

The judgment of the court below will be reversed and the cause remanded, with instructions to enter judgment for the plaintiff in error.

Judgment reversed.

HAMILTON, P. J., concurs.

(27 Ohio App. 137) THOMAS v. WILLIAMSON HEATER CO. Court of Appeals of Ohio, Hamilton County. April 4, 1927.

1. Pleading 49-Nature of action must be gathered from pleadings.

The nature of an action must be gathered from the pleadings.

2. Sales 434-Petition held to state action for breach of contract of sale and installation of furnace, and not one for rescission and recovery of purchase price.

Petition alleging that parties entered into contract whereby for certain consideration paid by plaintiff defendant agreed to and did install a furnace in plaintiff's residence, but that furnace failed to comply with warranty and that plaintiff was obliged to remove furnace to his damage in stated sum, held to state a cause of action for breach of contract, and not one to rescind contract of purchase and recover purchase price, notwithstanding amount of damage claimed was amount paid as purchase price.

Action by Sol Thomas against the Williamson Heater Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial.-[By Editorial Staff.]

Paul Scudder, of Hamilton, and Frank E. Wood, of Cincinnati, for plaintiff in error. Cobb, Howard & Bailey, of Cincinnati, for defendant in error.

HAMILTON, P. J. This action grows out of the purchase and sale of a heating furnace for the home of the plaintiff, Thomas.

In the trial court, a jury was waived, and the cause was tried to the court. The trial court, after hearing, entered a judgment for the defendant, the Williamson Heater Company, defendant in error here. From that judgment, Thomas, plaintiff below, and plaintiff in error here, prosecutes error, seeking a reversal of the judgment.

On request, the trial court made separate findings of fact and conclusions of law. In its conclusions of law, the court found that the action was one to rescind a contract of purchase, and to recover the purchase price of

(161 N.E.)

the furnace. And further found that the plaintiff did not notify the defendant, within a reasonable time, of his intention to rescind. Plaintiff in error, plaintiff below, contends that the court erred in its interpretation of the nature of the action, as being one for rescission, and contends that the action was for a breach of the contract of warranty.

[1] It is the law that the nature of the action must be gathered from the pleadings. Raymond v. T., St. L. & K. C. Ry. Co., 57 Ohio St. 271, 48 N. E. 1093; Frederickson v. Nye, 110 Ohio St. 459, 483, 144 N. E. 299, 35 A. L. R. 1163; Complete Bldg. Show Co. v. Albertson, 99 Ohio St. 11, 121 N. E. 817; Lust v. Farmers' Bank & Savings Co., 114 Ohio St. 312, 151 N. E. 189. We must therefore look to the petition in this case to determine whether or not the action is one for rescission, or for damages for breach of contract.

[2] The petition, in substance, alleges that the defendant, the Williamson Heater Company, is a corporation under the laws of Ohio; that on the 5th day of December, 1919, the plaintiff entered into a certain contract of writing with defendant, wherein, in consideration of the sum of $295 to be paid by the plaintiff to defendant, the defendant promised and agreed to furnish, erect, and install a furnace in the residence of the plaintiff, and to place in position all smoke and heating pipes necessary for the efficient operation of the furnace; that said contract contained certain warranties; that the plaintiff paid the purchase price of the furnace, and did all things on his part to be performed, but that the furnace failed to comply with the warran ty contained in the contract; and that the plaintiff was obliged to, and did, remove the furnace from his residence, to his damage in the sum of $295.

The answer admitted the warranty and the payment of consideration, denied the other allegations of the petition, and interposed the additional defense that defendant was not permitted to make proper tests or demonstrations. And defendant claimed to be relieved from the operation of the warranty in the contract.

The pleadings show clearly that the action was for a breach of contract. The mere fact that the damage claimed is in the same amount as the purchase price does not alter the cause of action. Plaintiff might have claimed and may have sustained more damage than this amount, but he saw fit to only ask for an amount equivalent to the purchase price. This did not change the cause of action from one in damages to one for rescission. The court was, therefore, clearly in error in its finding of law as to the nature of the action.

It is argued that, if this was error on the part of the trial court, the record fails to show any specific amount of damage suffered.

There is no bill of exceptions in the case. It is unnecessary to consider whether there was or was not sufficient evidence in the case to warrant the court in passing on the amount of damage, for the reason that the court did not reach this question. It only found, as heretofore shown, that the action was one for rescission and was barred by laches.

In the second conclusion of law the court found that the plaintiff did not comply with the provisions of the contract on his part. If this was an attempt to decide the question, as on a suit for breach of contract, it would be inconsistent with the other conclusions of law and against the findings of fact.

The judgment was, therefore, erroneous, and will be reversed, and the cause remanded for a new trial and further proceedings. Judgment reversed.

CUSHING and BUCHWALTER, JJ., con

cur.

(27 Ohio App. 258)

DE ARMOND v. CITY OF HAMILTON et al.

Court of Appeals of Ohio, Butler County. July 28, 1927.

1. Municipal corporations 488, 489 (3)-Petition for sanitary sewer, waiving limitation of assessments, must be strictly construed in favor of petitioner (Gen. Code, §§ 3819, 3911).

Language of petition for sanitary sewer, waiving limitation of assessments as provided by Gen. Code, § 3819, must be strictly construed in favor of petitioners, in view of section 3911.

2. Municipal corporations 488, 489 (3)— Where petition for sewer unconditionally waived limitation of assessments, ordinance making extra assessments payable in ten installments held enforceable (Gen. Code, § 3819).

Where petition for sanitary sewer unconditionally waived limitation of assessments as provided by Gen. Code, § 3819, ordinance making extra assessments payable in ten annual installments held enforceable.

3. Municipal corporations 488, 489 (3)— Waiver of limitation of assessments, in petition authorizing assessments payable in twenty installments or cash, held inoperative,. where ordinance required ten installments (Gen. Code, §§ 3819, 3911).

Waiver of limitation of assessments as provided by Gen. Code, § 3819, in petition for sanitary sewer, stating that the assessment should be payable in twenty annual installments or in cash, held inoperative, where ordinance provided for payment in ten annual installments, in view of section 3911, providing that proceedings with respect to improvements shall be strictly construed in favor of the owner of property assessed.

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