Beidler v. Davis

• Decision Date: 09 February 1943
• Parties: BEIDLER et al. v. DAVIS (two cases).
• Court: Ohio Court of Appeals

50 N.E.2d 613

72 Ohio App. 27

BEIDLER et al. v. DAVIS (two cases).

Court of Appeals of Ohio, Ninth District, Lorain.

February 9, 1943

Syllabus by the Court.

A court may enforce a valid contract by specific performance; but it cannot make a contract for the parties if they have not made one for themselves in sufficiently definite terms. Specific performance may be refused where the contract sought to be enforced is indefinite and uncertain.

Boyd Brooks & Wickham, of Cleveland, and Frank M. Wilcox, of Elyria, for appellant.

Mark Storen, of Michigan City, Ind., Charles P. Mayoh, of Cleveland, and Stevens & Stevens, of Elyria, for appellees.

STEVENS Presiding Judge.

These cases, involving the same subject matter, were, by agreement heard and considered together by the court.

The action below, filed by plaintiff Beidler, an assignee of coplaintiff John H. Gardner's rights under a patent assignment from defendant (Davis) to Gardner, sought to have specifically enforced that latter contract of assignment.

Before this court, the matter appears as two appeals by the defendant on questions of law and fact. The same relief is here sought as was sought in the Court of Common Pleas.

The assignment in question, identified as 'exhibit A' attached to plaintiffs' petition, provides as follows:

'Whereas, I. Walwin L. Davis of La Porte, Indiana, have made certain new and useful inventions and improvements in rotary pumps for which an application for letters patent of the United States, identified as follows:

'Serial No ........

'Filed ..........

'And whereas, I have, of even date herewith, granted a license to The Gardner Dairy Equipment Corporation, a corporation organized and existing under and by virtue of the laws of the state of Michigan, and having its principal place of business at LaPorte, Indiana, to practice the said invention exclusively in the dairy industry, and

'Whereas, John H. Gardner of LaPorte, Indiana, is desirous of acquiring an interest in and to said inventions and applications and in and to the letters patent to be obtained therefor:

'Now, therefore, to all whom it may concern, be it known that, subject to the foregoing license, I, Walwin L. Davis, for and in consideration of the sum of One Dollar to me in hand paid, and other good and valuable considerations, the receipt whereof is hereby acknowledged, have sold, assigned and transferred, and by these presents do sell, assign and transfer, unto the said John H. Gardner, his successors or assigns, one-half part of the entire right, title and interest in and to all inventions and improvements disclosed, set forth, described and claimed in the above-recited application, or in any division, continuation or renewal thereof, and in and to any and all letters patent which may be granted thereon, and any reissues or extensions thereof; and I do hereby authorize and request the commissioner of patents to issue the said letters patent jointly to the said John H. Gardner and myself, Walwin L. Davis, as the joint owners of the entire right, title and interest in and to the same, for the joint use and behoof of the said Walwin L. Davis and John H. Gardner, their heirs, successors and assigns.

'This assignment is made with the understanding that all benefits and profits arising from the further exploitation of said interest in and to the said invention will be divided equally between said Walwin L. Davis and John H. Gardner, and with the further understanding that no further rights involving the said invention shall be granted to parties foreign to the present agreement without the consent of the other party, in writing, first obtained.

'And I, Walwin L. Davis, for the consideration aforesaid, do hereby agree that I, my executors and legal representatives, will make, execute and deliver any and all other instruments in writing, and any and all further application papers, affidavits, assignments, and other documents which may be necessary or desirable more effectually to secure to and vest in said Walwin L. Davis and John H. Gardner, jointly, their heirs, successors or assigns, the entire right, title and interest in and to the said improvement, invention, application, letters patent, rights, titles, benefits, privileges and advantages hereby sold, assigned and conveyed, or intended so to be, and subject to the foregoing license.

'In Testimony Whereof, I have hereunto set my hand and affixed my seal, this 2nd day of July, 1937.

'(Signed) Walwin L. Davis.

'(Acknowledged and witnessed).'

On June 23, 1939, almost two years after the execution of the contract sought to be specifically enforced, defendant (Davis) in his own name made an application for a patent upon a rotary pump for use in a field entirely outside the dairy industry. That pump is now being produced by The Romec Pump Co., of Elyria, under a license agreement with Davis, and apparently the patent therefor is productive of some return by way of royalty.

On December 17, 1940, plaintiff Beidler procured an assignment in writing from Gardner, whereby Gardner transferred all of his rights under exhibit A above set forth to Beidler.

It is the claim of Beidler and of his coplaintiff, Gardner, that exhibit A refers to and assigns a half interest in the patent covering the airplane fuel pump for which application was made by Davis in June, 1939.

Davis, on the other hand, by his pleadings and his evidence, claims that exhibit A is void for uncertainty because it does not describe the subject-matter of the assignment (exhibit A); but in the alternative, says that, should that contention not be sustained, the subject to the assignment (exhibit A) was a model B rotary homogenizer pump, claimed to have been invented by defendant, and used in the dairy business. It was in the manufacture of this latter pump that Gardner was engaged.

A preliminary matter to be disposed of by the court is the petition of John H. Gardner.

Under the terms of Gardner's assignment to Beidler, Gardner transferred to Beidler not only all of his right, title and interest in and to one-half of the invention there described, but also 'all rights of action either at law or in equity which I may have acquired by virtue of an assignment in my favor executed by the said Walwin L. Davis under date of July 2, 1937.'

There thus remains in Gardner no interest which he could properly assert in this litigation, and his petition is ordered dismissed, at his costs.

It will be remembered that the relief sought by the...