Blue v. Hazel-atlas Glass Co
Decision Date | 05 February 1929 |
Docket Number | (No. 6199.) |
Citation | 147 S.E. 22 |
Court | West Virginia Supreme Court |
Parties | BLUE v. HAZEL-ATLAS GLASS CO. |
Rehearing Denied March 25, 1929.
(Syllabus by the Court.)
Appeal from Circuit Court, Ohio County.
Suit by Charles E. Blue against the Hazel-Atlas Glass Company. Decree for plaintiff, and defendant appeals. Reversed and remanded.
R. S. Spilman and Price, Smith & Spilman, all of Charleston, and Hubbard & Hubbard, of Wheeling, for appellant.
J. M. Kitz and George C. Beneke, both of Wheeling, for appellee.
WOODS, P. This suit, which was instituted in 1921 for a discovery and an accounting of all the glassware made by defendant on certain machines furnished by the plaintiff, and to recover such royalties as the plaintiff might be found entitled to, is based upon a contract, dated December 27, 1900, entered into between Charles E. Blue (and others to whose rights and obligations thereunder he has succeeded) and Hazel Glass Company (to whose rights and obligations thereunder defendant, Hazel-Atlas Glass Company, has succeeded).
The first section of the contract of 1900 made provision for royalties on the machinery then in use by the defendant company. The second and third sections (upon which this suit is based) provide:
The remaining sections provide for the cost of experimental machinery; the interest to be transferred to defendant in all patents; the reduction of minimum royalties under certain conditions; and the time for payment of royalties.
The amended bill alleges that the plaintiff, prior to the execution of the contract in question, had secured several patents on machinery used in the molding of glassware, and was a stockholder in the Atlas Glass Company which merged in 1902 with the Hazel Glass Company and others, and as the Hazel-Atlas Glass Company; that at the time of the making of the contract of 1900, the Hazel Glass Company was using his glass-making machines in its factory, for the use of which it was paying plaintiff a certain royalty; that plaintiff at the time had in mind a machine that would answer the requirements of sections 2 and 3 of the contract; that the company continued to pay the royalties provided for in section 1 of said contract until 1914, at which time the patent rights ran out on the old machines; that he furnished a machine which fulfilled all requirements of sections 2 and 3, and that same has been tried and accepted by Hazel-Atlas Glass Company; that prior to 1907, one Brooke obtained a patent for severing a continuous flowing stream of glass, without disclosing any practical means in the patent for severing said stream of glass; that an option was taken on the "Brooke patent" to avoid possible infringement suits, and that plaintiff released his rights thereunder to defendant, who obtained a license to use same; that defendant became a licensee under plaintiff's patent and has continued to use and to be a licensee to the present time; that he does not know howmany machines defendant has or is using, etc.; and then concludes with a prayer for a discovery as to the time when the defendant started to use said appliances, the various places where used, and the amounts of glassware manufactured, and that the liability of the defendant to the plaintiff be ascertained, and for general relief. The contract heretofore referred to was attached to and made a part of the bill.
Defendant answered denying that the plaintiff ever furnished it a machine complying with the requirements of sections 2 and 3, or that any such machines were ever accepted by or commercially used by it; and it denies that plaintiff ever obtained an option to purchase the Brooke patent or released same in favor of defendant. The answer also charges laches.
The decree of the lower court, after finding from the mass of evidence that defendant company accepted plaintiff's machines in March, 1907, and had used them to the time of the institution of this suit, made the further finding that "under the facts and circumstances of this case said machines substantially comply with the requirements of section 3 of the contract, " and that the defendant is liable to plaintiff for the "minimum royalties specified and provided in said section 3 of said contract" for the period used, and decreed in accordance therewith that plaintiff was entitled to $300,000 and costs. It is from this decree that the defendant glass company appeals.
Are the findings of the lower court supported by the evidence? While the glass company contemplated a greater output by virtue of any machine that might be constructed under the contract, yet that was not all, for it incorporated therein as one of the conditions that the "skilled" laborers were to be dispensed with, and that any machine found satisfactory should be accepted by them in writing. So, the lower court in finding a substantial compliance must have found that the "skilled" laborers had been dispensed with. We find no judicial definition to guide us in determining who is a "skilled" or an "unskilled" laborer so far as the same pertains to glass workers. So, we must resort to the contract in an endeavor to determine in what sense the words have been used. It assumes that the "gatherer" and the "presser" are "skilled" laborers.
The Blue machine in use in 1900 had a table capable of rotation. This table carried a plurality of molds in which the several operations necessary to construct a bottle, jar, or other vessel, were respectively performed. After the machine begun...
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