852
FEDERAL REPORTER.
At Law. On demurrer. The plaintiff's declaration, omitting the formal parts, is as follows: '" '" '" Jesse K. Sanborn complains of Alexander Rodgers 'Ii * '" fOl that the said defendant did make and execute a certain instrumen'L In writing, signed by him, and did deliver the same to the said plaintiff, which said instru. ment is in the words and figures following, to-wit: "MUSKEGON, Mich., July 8,1881· .. To Whom It may Concern : This is to certify that I hereby authorize J. K. Sanborn to collect for all infringements of my patent tooth-bar log-turner, No. 81,432, and the reissue of the same, No. 5,487, July 1873, in the state of New York and Pennsylvania, the damages awarded to mein the U. S. court at Grand Rapids, viz., tvro hundredal1d forty dollars on each infringing machine. Parties so settling will avoid all further trouble, and will 'be entitled to a license to use the same ever afterwards. Said license will be forwarded fl"Om M'llskegon by the patentee. [Signed] .. ALEXANDER RODGERS. to -That, at the time of the making and exeqution of the aforesaid instrument of writing or power of attorney, the said defendant' undertook and agreed to and with the said plaintiff, by a contract or agreement then and there entered into by and between the said plaintiff and the said defendant, to pay to said plaintiff the sum of $100 for each and every infringing machine made or used in violation of the rights secured by the letters patent, and the reissue thereof, mentioned in said instrument of writing or power of attorney, on which said plaintiff should receive or collect the said sum of $240, in the states of New York and Pennsylvania, and the like sum of $100 on each infringing, machine for which,the money should be paid to said defendant, whether the same sbould be paid to or collected by said plaintiff, or to or by said defendant, or to or by any other person for the said defendant, in the said states of New "¥ork and Pennsylvania. And the said defendant on, to-wit, the day and' year aforesaid, further agreed to and with said plaintiff that he, (said defendant,) would not send any agents to look up infringements within the said states' of New York and, Pennsylvania, 01' in any manner interfere with the business of collecting information, evidence, or damages concerning cases of infringements as aforesaid. That by virtue of the authority contained in said instrument of writing or power of attorney, and in pursuance of and said plaintiff did upon the faith of said promise and agreement proceed to make the collections so authorized and pr()vided to be made by him, and did proceed to make the collections so authOJ:ized and provided to be made by him, and did continue in said business and employment for a period of four years, laboriously and faithfully performing his uutiesaccording to the terms of his agreement made with said defendant; and, in 'So doing, said plaintiff did expend a large SUlli of money, to-wit, the sum of $3,000, and also a large amount; of time, to-wit, four years, in making search for cases of infringement of said letters patent, and the reissue thereof, in said states of New York and Pennsylvania. 'fhat by means of such labor and expenditures, said plaintiff had, at 'the date of transferring by said defendant of l).is rights to said a8 hereinafter set forth, discovered and procured proofs to establish a largellUmber of cases of sucbinfringement, to-wit, 200 cases in the said states of New York and Pennsylvania; whereby said plaintiff earned and became entitled to collect and receive from said defendant, the sum of $100 for each of said 'cases of infringement 80 discovered, and the proofs to establish 'which Wflre so furnished as aforesaid by him. That, by means of such labor and expenditures, said plaintiff also discovered the names of, to-wit, 50 other persons, in the said states of New YOl'k and Pennsylvania, and had, at the
SANBORN V. RODGERS.
853
date of the transferring by said defendant of his rights to said letters patent, as hereinafter set' forth, commenced proceedings for procuring the proofs ,to establish the same in each of said cases; whereby said plaintiff earned and be-came entitled to collect of and receive from the said defendant $100 for his services in each ohaid last-named cases, andtha further sum of, to-wit',$100 in each of said cases for his expenses incurred therein, as above set forth. That on, to-wit,the 15th day of April, A. D. 1885, the said defendant sold and assigned, in instrument in writing by him duly executEd and delivered, to one John TOlTant, of Muskegon. in the state of Michigan, all his right, title, interest, and claim in and to the said letters patent, and in and to the reissue thereof, and of the interests theretofore acquired by him thereunder, without the consent or concurrence of said plaintiff, and without providing for the payment to said plaintiff of the moneys so due him by reason of the services and expenditures theretofore rendered and expended by him, and without paying the same or any part thereof to said plaintiff. That said John Torrant has, since the date of the assignment of said letters patent, and the reissue thereof to him by the said defendant, taken the entire control of the collection of the amounts due and collectible for infringements, the proofs to establish which were so discovered and procured by said plaintiff, in the said states of New York and Pennsylvania, and hath refused to recognize or employ said plaintiff in said business, or to pay,over to him the several amounts earned ,and exP\!nded by him. And that said John Torrant hath, from the date of said assignment last mentioned. prevented the, said plaintiff from making any collections of the moneys due for such infringements. and from acting further under said power of attorney and said contract with said defendant, to the plaintiff's damagl', to-wit, $20,000. Wherefore an action hath accrued to said plaintiff to ha ve uf and from the said defendant the said several sums of money so earned and expended by him in louking up said cases of infringement of said letters patent, and the reissue thereof, and procuring proofs to establish the same, to-wit, the sum of $20,000, and therefor he brings suit. Defendant demurred to the declaration on the following grounds: (1) It does not appear in and by sftid declaration that the power of attorney therein Bet forth was not revocable by the said defendant. (2) It does not appear in said declaration .that the said plaintiff ever entered upon the performance, or performed the said contract, to the knowledge of the defendant. (3) It does not appear therein that, during the four years plaintiff alleges he <Jperated under the alleged contract, that he (plaintiff) reported to the defend.ant, or in any manner informed him (defendant) of his (plaintiff's) operations under said contract. (4) It appears by the terms of the con tract declared upon that the same was not to be by its terms performed within a year, and bence it was vQid.
E. W. Withey, for plaintiff. Smith, Nims, Hoyt &.- Erwin, for defendant. SEVERENS, J., (after stating the facts as above.) The facts fairly and :sufficiently stated in the declaration are, for the present purpose, to be taken as admitted. '.{'his being so, the court holds and rules as follows: L The power of attorney: set out in the declaration, if standing alone, would be revocable. 2. But, being clmtemporaneous with an agreement relating to the same between the same parties, it must be taken as part thereof, and, -When accepted, or anything had been done by the plaintiff toward. the
854
·
execution of thecontract,with defendant's knowledge, the power was not revocable,at least in respect to those cases inwhioh the plaintiff had rendered Slltvice. Whether it was in view of the allegationthat the defendant stipulated that toe plaintiff's service should be exclusive of any interierence in that territory, it· is not necessary to determine. Perhaps the contract and the power were alike irrevocable from their date if the plaintiff. at that time gave notice to the defendant of his acceptance of the offer 01' promise. Probably the latter is correct. 3. ItWl;\S necessary that the plaintiff should, within a reasonable time, either have .expressly notified the defendant of his acceptance, or have entered upon the performance of the undertaking and given notice thereof to the defendant. The contract alleged in the declaration is wholly unilateral, and continued so until acceptance, either expressed, or implied from entering upon the service with the knowledge of the defendant. The declaration is faulty in this . 4. It is alleged that the defendant assigne\l his patent and "all interests acquired thereunder" to another without the of this plaintiff, and without providing for payment of plaintiff. The court is inclined to hold that this disabled the defendant from doing those things in respect of his contract with the plaintiff,-ifthe contract was closed by acceptance, -which are fairly implied frum the contract, and p'utsuch obstruction in the way:Of ltsexecution, as to justify the plaintiff in treating it as repudiated by the wrongful act of the defendant. But as the demurrer. is sust&ined;on other grounds, no definite opinion is now declared. 5. In reapeot to the objection that the allegeJ contraot was within the statute of frauds, a.nd 80 should have been alleged to be in writing, the ruling is that this question is not before the court. It is not necessary to allege that it was in writing, but only that the contract was made. The point'canotlly arise llponan offer of testimony, where the deolaration does nothllege it was by parol. The demurrer must be sustained. Leave will be given to plaintiff to amend his declaration, otherwise there must be judgment for the de-. fendant.
WUNDERLICH fl. MAYOR,
ETC.,
OF NEW
YORX.
(Circuit Court, B.D. New York. Februarv 18,1888.) 1. Mm«cn,>AL ,CORPORATIONS-NEGLIGENCE-DEFECTIVE I
In an actionfor personal injury, received on the streets of the defendant city, testlmljny was admitted, against the objection of plaintiff, on the point of due,care o·f the streets, tending to show that defendant had about 1i48 milell ofstreets,alld 845 miles of sidewa,lk. Held, that as the verdict of the jury wasin favor of 'the plaintiff, the admission of such evidence did not prejudice him. In an action for personal injury a judgment of $300 will not be set asideaa when Its injustice is not apparent to everyone, damages beint{ peculiarly within the province of the jury. '. . " ,'.
STREETS-EvIDENCE.
I.
DAMAGI£S-INADEQUAcY-PE'RSQNAL INJURIES.