Blue v. Hazel-Atlas Glass Co., (No. 6199)

• Decision Date: 05 February 1929
• Docket Number: (No. 6199)
• Citation: 106 W.Va. 642
• Court: West Virginia Supreme Court
• Parties: Charles E. Blue v. Hazel-Atlas Glass Company

106 W.Va. 642

Charles E. Blue

v.Hazel-Atlas Glass Company

(No. 6199)

Supreme Court of Appeals of West Virginia.

Submitted January 22, 1929.

Decided February 5, 1929.

Evidence Decree Determining Question of Fact Will be Reversed Where it Clearly Appears to be Against Weight and Preponderance of Evidence.

A decree determining a question of fact will be reversed where it clearly appears to be against the weight and preponderance of the evidence.

Appeal from Circuit Court, Ohio County. Appeal by Hazel-Atlas Glass Company against Charles E. Blue. Decree for defendant, company appeals.

Reversed and remanded.

J. M. Bitz and Geo. C. Beneke, for appellees.

R. S. Spilman, Price, Smith & Spilman and Hubbard & Hubbard, for appellant.

Woods, President:

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 Class 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:

"Section 2. If the said parties of the first part succeed in manufacturing for the Hazel Glass Company, party of the second part, an automatic glass feeding machine, wmich will require no more than one skilled and one unskilled workman to operate, and which machine shall be accepted in writing by the Hazel Glass Company, it, the said party of the second part, agrees to pay to the parties of the first part an additional royalty of two cents per gross on articles up to and including sixteen ounces capacity and an additional royalty of five cents per gross on articles over and above sixteen ounces capacity, and the said party of the second part further guarantees that the minimum payment to the parties of the first part, in royalties for any year for articles manufactured under this section of this agreement during that year shall be not less than Six Thousand Dollars ($6,000.00) additional. Provided that while the agreement to pay the additional royalty shall go into effect immediately on the acceptance of said feeding machine in the manner aforesaid, the guaranteed minimum payment under this section of Six Thousand Dollars per year shall not go into effect until the second year of working said machine.

"Section 3. If the said parties of the first part succeed in manufacturing for the Hazel Glass Company, party of the second part, an automatic machine for making glassware that will require no more than one unskilled laborer to operate, and which machine shall be accepted in writing by the Hazel Glass Company, it, the said party of the second part agrees to pay to the parties of the first part, a royalty of four cents per gross on all articles up to and including sixteen ounces capacity, and a royalty of ten cents per gross on all articles over and above sixteen ounces capacity, and the said party of the second part further guarantees that the minimum payment to the parties of the first part, in royalties for any year for articles manufactured under this section of this agreement during that year shall be not less than Twenty Thousand Dollars ($20,000). Provided that these royalties and minimum guarantee, shall take the place and be in lieu of royalties and guarantees provided to be paid under sections one and two of this agreement. And provided further and it is mutually understood and agreed that the Hazel Glass Company shall have accepted in writing and have had in operation at least seven of these machines for a period of one year before the minimum guarantee of twenty thousand dollars shall go into effect or become payable under this section of this agreement. And provided further that said minimum guarantee of twenty thousand dollars ($20,000) per year, shall continue for a period of five years, after which period said minimum guarantee may be discontinued or continued at the option of the Hazel Glass Company, party of the second part."

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 moulding of glassware, and was a stockholder in the Atlas Glass Company which merged in 1902 with the Hazel Glass Company and others, 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 glassmaking 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 how many 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 $300,000.00 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...