Gulbenkian v. Penn

• Citation: 252 S.W.2d 929,151 Tex. 412
• Decision Date: 01 October 1952
• Docket Number: No. A-3430,A-3430
• Parties: GULBENKIAN et al. v. PENN.
• Court: Supreme Court of Texas

Page 929

252 S.W.2d 929

151 Tex. 412

GULBENKIAN et al. v. PENN.

No. A-3430.

Supreme Court of Texas.

Oct. 1, 1952.

Goldberg, Fonville, Gump & Strauss, Palmer & Rochelle, Dallas, for petitioners.

Roy C. Coffee, R. D. Hardy and Brundidge, Fountain, Elliott & Bateman, Dallas, for respondent.

GRIFFIN, Justice.

This cause reaches this court from a judgment of the Court of Civil Appeals reversing a judgment of a district court of Dallas County, Texas, granting a summary judgment to petitioners. 243 S.W.2d 220. Petitioners filed suit against respondent for recovery of a money judgment alleged to be due by virtue of a certain licensing agreement between one Kerope Gulbenkian and respondent. The agreement was plead in the petitioners' second amended original petition and purported to be an exclusive license agreement whereby the respondent received the exclusive license rights under a certain named and numbered patent for a consideration set out in the agreement.

Petitioners were the heirs of the said Kerope Gulbenkian, who had died during the interval between the execution of the license agreement and the time of filing of the suit. Respondent answered pleading a general denial, and, among other defenses to the suit, plead a failure of consideration by virtue of fraud and deceit practiced upon respondent by Kerope Gulbenkian at the time of the signing of the licensing agreement. This defense was duly verified. In addition, respondent plead invalidity of the license agreement by virtue of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, and the Anti-Trust Act of the State of Texas, Vernon's Ann.Civ.St. art. 7426 et seq.; also that the patent in question expired in December 1948, and therefore no further royalties could legally be collected after such expiration date. For cross-action the respondent plead his cause of action for fraud and misrepresentation and asked for return of all moneys previously paid to petitioner, and offered to surrender to petitioners the license agreement.

Petitioners filed a supplemental petition lodging certain exceptions to respondent's answer, among which exceptions and defensive pleading were estoppel, laches and the statute of limitations. Request for admission was filed by petitioners and answered by respondent. Thereafter, petitioners filed a motion for summary judgment against the respondent upon the grounds (1) that the pleadings of the parties, the admissions of respondent and the licensing agreement, together with the attached affidavit of plaintiff Hrepsime Gulbenkian 'prove all the facts necessary to entitle plaintiffs (petitioners) to recovery;' (2) a. not involved in this appeal; b. that respondent's plea of failure of consideration is an attack on the validity of the patent, the subject matter of the license agreement, and respondent is estopped to attack the validity thereof, having used and paid royalties under the exclusive license agreement for almost eight years; c. that respondent is estopped to rescind the license agreement by reason of laches, having delayed almost eight years in asserting his claims and until after the death of Kerope Gulbenkian and thereby has deprived petitioners of making other contracts for the use of the process, and of refuting the claims of the respondent, and d. that the cross-action is barred by the two and four year statutes of limitations and by laches. Accompanying it is an affidavit of petitioner, Hrepsime Gulbenkian which sets out the family history of Kerope Gulbenkian so as to show the rights of petitioners as his heirs; the license agreement between one Schachno Peisach Schotz and Kerope Gulbenkian, and the license agreement between Kerope Gulbenkian and respondent; also an allegation that no royalties called for have been paid since June 1947. The respondent filed his counter affidavit setting out his defense of fraud inducing the contract and alleging failure of consideration; that respondent did not learn of such failure until June 1947, his defense that the license agreement expired December 1948, and that the license agreement is void under the Sherman Anti-Trust Act, and that respondent had personal knowledge of the facts constituting his defense and if sworn as a witness, could competently testify thereto, and asks for a trial of the cause on its merits. That part of the licensing agreement, dated December 19, 1939, which has a bearing on this cause is as follows:

'And in addition to the considerations hereinabove referred to, the Licensee further agrees to pay to the Licensor until August 4, 1953, a royalty of fifteen cents (15cents) a pound for each and every pound of bleaching product manufactured and sold by him or his sub-licensees under United States Patent No. 1,836,134 during the term of this license agreement; and the Licensee further agrees to pay to the Licensor a minimum royalty of Two Hundred and Fifty Dollars ($250.00) per month during the term of this license agreement. The payments hereinabove provided shall be paid monthly.'

Rule 166-A, Rules of Civil Procedure, provides for summary judgment '(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Emphasis added.)

We adopted this rule from Federal Rules of Civil Procedure rule 56, 28 U.S.C.A., and that rule has been construed as allowing summary judgments only when there is no disputed fact issue. The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits. King v. Rubinsky, Tex.Civ.App. 1951, 241 S.W.2d 220(1), no writ history; Haley v. Nickles, Tex.Civ.App.1950, 235 S.W.2d 683, 685(5), no writ history. As said in the case of Kaufman v. Blackman, Tex.Civ.App., 239 S.W.2d 422, 428, writ refused, N.R.E., 'The underlying purpose of Rule 166-A was elimination of patently unmeritorious claims or untenable defenses; not being intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact.' The burden of proving that there is no genuine issue of any material fact is upon the movant, and 'All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.' De La Garza v. Ryals, Tex.Civ.App.1951, 239 S.W.2d 854 (4), 856, writ...