in consiJul'ing this distinction, when sought to be set up in the German Bcmk Case, quoted several passages from its decision in the Railroad Tax Cases, which need not berepeated hete, and then said: "These principles a.re sufficient to decide the and were declared by this court in a case arising in the same state and under the same constitution and revenue laws with the one now before 11S." The decree dismissing the bill was affirm'ed on the ground thllit i;J:lere was no allegation of a payment of a part of the tax. Thus the supreme court has itself denied sought to be established in this case ; and its -decisions are controlling in this c011rt. The able decisions of the supreme court of Wisconsin, relied on by defendant, concedhig them to adopt a diifereJ1t view, must yield in the national court to the superior authority of the supreme court of the United States. We are unable to distinguish the present case from those already cited from the supreme court. Under the decisions in those cases, the-bill presents no sufficient equity to justify an injunction, because there is rio allegation of payment of so much of the tl),X as must· be conceded ought to have been assessed and paid. On the authority of the cases 'cited, the demurrer must be sustained on the grounds indicated, and the ground being jurisdictional it becomes unnecessary, if riot improper, to consider any of the other points raised by the bill and demurrer. As it is understood that the bill cannot be truthfully amended, so as toaV'oid the objection coosidered, it must be dismissed'; and it is so ordered· . H-qFFMAN, D. J..,
and another v.
(Circuit (Jourt, W. D.
July 16, 1881.)
Partial assignments of one's rights under a contract are not good as against the other contracting party.
SAME-SAME-REsCISSION BY ASSIGNEE.
The assignee will not be allowed to work a rescission of the contract.
SA.c"\l:E-SAME-AcTION BY ASSIGNEE.
Nor can he maintain an action against such other party without joining the assignor, unless with such party's
Albert Bell entered into an agreement with the defendant, Bidwell, by the terms of which the defendant, among other things, was to manufacture a certain plow'under two, patents, which belonged to the defendant, and to pay the
defendant a royalty and a commission on sales made by' him. Subsequently the defendantassignel1 to John Ball &,00. all rOYll-lty due. or to become due, and his interest in the patents, as security for a debt, whfch right and interest were by them assigtied to the plaintiffs, who pray that the defendant's' license be decreed to be forfeited, and that he be required to account to them for royalties. Held, thll.t as the assigmnent made by Albert Ball did not extend to defendant'sli\)ense woulq. not be commissions upon sales, a decree of granied, as it would not only affect such commissions but work' a the entire agreement.' Held, j'll/T'tht!/f', that as the assignment was' but 'a partial one, the defendant could only be required to account for beCOming due after he had assented to it.
. ACHESON, D. J. On July 19,1876, Albert Ball and the defendant entered into a written agreement, by the terms of which the defendant was to manufacture a plow known as the "Red Jacket PloW;" under two patents of the United States which had been issue'd to Bitll,and pay Ball on each plow made by the defendant, and "sold 8.nd; collected for," a royalty-of 50 cents, to be settled and paid in the months of January and July of each year;"and the defendant was further to pay Ball' a commission of 5 per cent. on net collectionS 'upon sales of plows made by Ball or his agents, in whatever territory he might work up, but he to pay the traveling expenses of himself and his agents, and the defendant to supply printed matter; the defenda,ntto meet the demand from responsible parties f(}f'plows, on reasolll1ble notice; the agreement to continue during the term of the patents, which bear date respectively, January 3, 1871, and January 4, 1876. On January 13,1877, by a written instrument of that date, Albert Ball assigned to John Ball & Co. "all royalty or patent fees due or to become due" to him under the above':recited agreement, this assignment to be for the term of four years from this date;" and 'by an instrmp,ent of writing, of the same date, he assigned all his interest in said two patents to said John Ball & Co., "subject to a contract this day executed by and between said John Ball & Co. and myself," (Albert Ball.)' By this latter contract John Ball & Co. sold their manufacturing establishment to Albert Ball for the consideration of $18,000; and the contract provided, inter aUa, for an assignment to John Ball &00. of the aforesaid royalty on the Red Jacket plow, and of said patents, "said assignment of said patents and royalty and license fees to be for a period of four years;" and the contract contains the further provision that if the purchase money, with interest, is not fully paid "at the end of four years, said Ball is to
Bakewell et Kerr, for defendant. John Barton, for complainants.
.p!t.y any balanaethen>unpaid to said John Ball & Co. within 30 days ·thereafter; and onfun"payment of fll'aid considera.tion the patents aforesaid. to be assigned by said John Ball , '. , " , ' ,r, & Co, to said ,Albert Ball, his heirs orassigna." , On the fifteenth of February, 1878, John Ball & Co. assigned all their ir(tefest and Clajm i,ll Baid 'patents, and in the aforesaid agreement ,between Albert Ball and.the defendant, to. George Cook and Jacob Miller. On the nineteenth of November, 1878, C60kand Miller served a written notice upon the defendant, in which, after reciting he had failed to comply with the "conditions oLsaid, licensento lllltnufaotureplows uI?-dercsa.id· ."in not paying the royaJ.iiies as provided by said license, there .being, now due and unpaid to us a large sum as royalty, on said license, in which sum or amount you are now in broken and failed. toc9mply with other terms of, iJaid they notified the they terminatecl his license. They subsequently ,filed the hill in this case, in ;which thtly pray that the defendant's license may be decreed to be}orfeited, that he may be enjoinedJrom manufacturing plows unde,r said patents, and that,htl may be required to account for and pay the plaintiffs' all royalties for which he IDay be in arrear, and damages. The notice of November 19, 1878, assumed, and the bill assumes, that the agreement between Albert Ball and tpe defendantr contains ,conditions for the breach of which by the defendant his licf;nse to manufacture is revocable; but the agreement contains nothing of the kind. There is no provision therein for revocation or forfeiture, and therefore there is no foundation for a decree annulling the license, (McKnight v. Krentz, 51 Pa. St. certainly none under the eviit otherwise, such decree would not bCf made upon dence. But, were this bill, for Albert Ball, whose rights are involved, is not a party to the suit. Gloninger v., Hazard, 42 Pa. St. 389. That he has an ,interest ill the question of annulling the defendant's license is manifest. .:a:is assignmellts of the patents, and of the royalties payable by as collateral for the defendant, are not a debt due by him to John Ball & Co., and they are expressly limited in, their operatjon to the ,term of four years. Furtherwore, p.n important part of the agreement between Albert Ball and the defendant, to-wit, that relat,ing to Ball's, commissions upon touched by the assignments. , ,Now, 7clearly, a decree annullingth:o
lic'ense' neceBsarilyafl'ectl3alIrilboInmissiohe; arid, ,ndeed,rW'erk a resciBt!ion of the entire agreefuellt between hi:tn ttnd thedefendanti It only remains to be considered whetM:r,the'c'bmp'lainants a;:re entitled to relief· under their prayer for anaccount,and, if 80, tipo'll what principles such account is to be taken. Albert Ball that he visited thedefendant'Boffice on the Beventeeri.th of January; 187'7. He Bays: .\ '
"I banded him a notrce, from J ohIlBali & Co., of the'transfer of my and royalties that had become due under my contract\vithMr: Bidwell;'al1d, I think, in connection with ,tbat, a letter stating they bad withdrawn a certain circular they
On January 27, 1877, John Ball & Co. addl'eBsed the defendant lit letter,in which they say: " "You are bereby. notified that A.lbert Ball bas assigned to us llJl royalty or
patent fees which are, due, or to become due, under provisions 'of contrl!-Ct' between you and hijIl dated July 19, 1876, and that wlil sliall look to you for " , ., payment of same to us." .
I, ' _
To this notiflcation the defendan,t replied, by letter dated 30, 1877, in which he says:
"I take note oiyour notice that hasassi/pned to you the royalty which may become due to him under niy-contract with him dated July H,l,,1876. and in reply thereto haye to state that inrpundfigures,equal to about $1,500, has al're!,tdtbeenadvanced to Mr. Albert Ball, upon'the royalty and commissions for' selling. As cannot know at' this date hoW much of the amount will be applicable to commissions, I could not determine how mtmh of it would go off the royalty,.. Any balanpe, however, whiclf may;be due upon the same, be eq@ll:r agreeable to you at time." " _
. Under :
of February 6, .187'1, Jqhn "
w;r()te'to. the (,'
"We cannot consent that any, amounts-advanced tq,MJ:.Baliafter the should be included in the alllO\lnt to royalty, seventeenth as you had notice through him of the transfer to us; and amounts advanced after such notice were so done at your 6wn riskof'beingtakep, up by cOlnmissions or otherwise by Mr. BalL" ,
It appe'ars, as I understand the evidence, that 011 January 18, 1877, the defendant made an advance to Albert Ball of $546.40, which afterwards was reduced to $464.20. · This advance the evidence shows was in accordance with previoIts' ;dealings between Ball and the defendant under their agl"eement, and nothing in th'e evidence relating to the transaction indicates any intentional bad .faith 'to John Ball & Co. Is, then, the position taken by them and by the
complainants, that this advanoe oannot be brought into the account between them and the defendant, tenable? I think not. The notice proved to have been given to the defendant on January 17th was of the transfer of "royalties that had become due ;" and it does not appear that proper notice was given before the letter of January 27, 1877. But if the notice of January 17th had been ever so full, why should it have the effect claimed for it? The defendant was not a mere licl"nsee of Albert Ball, accountable for royalty. Ball and the defendant were engaged in a joint enterprise, which was to endure wIde the patents werein force. And if the defendant conceived that the success of the enterprise would be promoted by'an advance, why he not make it, notwithstanding the alleged notice? Why should hebe trammelled by an assignment to which he was not !II party, and to which he had not ;yet giYen his consent? The assignment to John Ball & Co., it will be obtlerved, was not the entire agreement between Albert Ball and the defendant. It was'a partial assignment only. Upon what sound principle could the contract be severBd by one party without the assent of the other? Say the supreme court; in Mandeville v. Walch, 5 Wheat. 286:
"A creditor shall not be permitted to split up a single cause of action into many actions without the assent of his debtor, since it may subject him to many embarassments and responsibilities not contemplated in his original contract. He has the right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be' broken into fragments."
It will not do to say that Ball's royalties and oommissions are distinct and separable olaims. They both arise under one contraot, grow out of the same enterprise, are olosely connected, and properly the subjeot of one account. It seems to me that it is only by virtue of the defendant's assent to the assignment to John Ball & Co., given in his letter of January 30, 1877, and hiB subsequent reoognitionof the plaintiffs' rights upon the basis of that letter, that the plaintiffs can maintain this bill. In all cases where the assignment does not pass the legal title, and is not absolute and unconditional, or there are remaining rights or liberties of the assignor which may be affected by the decree, he is a necessary party. 1 Dan. Ch. 192; Story's Eq. PI. § 153. Now"the assignment not having been absolute, and but partial, Albert Ball would be a necessary party, save for the defendant's assent; and as the plaintiffs must rely upon the defendant's assent in order to maintain tbis Lill, tlwy must take it with iti> qualification.
DUERK V. IlrIHAEUSER.
Th,e case will be referred to a master, to state an account between the parties in conformity to the views herein expressed. When the balance due the plaintiffs is ascertained, we will cunsider whether they may not be entitled to an injunction againtthe defendant until he pays the arrears of royalties so found to be due·.
BUERK 11. IMHAEUSER.
(Circuit Oourt, S. D.Ne1J/ 1'(1/'&. ;ll'y 1, 188l.)'" ::.
, A' bill is not'demnrrab1e when a 'foundatIon has been ·lirld for 'SonM' iJtUi.edis, , c.ov.ery Sind relief'aSked. 'E' , ..
Noonl! can object. to a bill on ,the ground of m,ul.tqarious;uess unless
, , '" .
3. PUACTI:CE-ArrEARlNG GENERALLY-
By appearing generally. one waives his right toobjeot that hetsnot named as a defendant in praY,er for a .
J'. Vansantv01'd, I for plaintiff. A. N. Briescn, for defendant Imhaeuser.
BLA.TCHFORD, C. J; As the demurrer is to the whole bill,' and Mt to any, particular discovery or relief asked, and as a .foundationAs laid in the bill for at least some of the discovery and relief asked; the first ground of demurrer must he overruled. The defendant Imhaeuser, being liable for each one of the amounts decreed inthe,one suit, is not in a position to raise the objection of multifariousness, as he is in no worse position by having only one suit against him than if there were three. Imhaeuser has no concern with the matters referred to in the third ground of demurrer. As Imhaeuser has appeared generally in the suit, he has waived his right to object that he is not named as a defendant in the prayer for Bubpama, and he has no ooncern with the naming of others in such prayer. The demurrer is overruled, with leave to the defendant Imhaeuser to answer in 30 days, on payment of the plaintiff's costs on the demurrer, to be taxed.