Blue v. Hazel-Atlas Glass Co.
| Decision Date | 08 May 1923 |
| Docket Number | C. C. 233. |
| Citation | 93 W.Va. 717 |
| Court | West Virginia Supreme Court |
| Parties | Charles E. Blue v. Hazel-Atlas Glass Company |
Where a demurrer of a defendant to a bill is sustained and the court dismisses the bill as to the demurrant, this court can not, upon certificate under section 1, chapter 135, Code, review the action of the court; the order of dismissal being final can be reviewed only by appeal. (p. 719).
Where on motion of a defendant the court strikes out of a bill certain portions for impertinence, which portions are not so material as to deprive plaintiff of the relief or part of the relief demanded, upon certificate, this court can review the propriety of the ruling of the trial court on such motion. (p. 719).
But if the portion of the bill struck out is so material as to deny plaintiff his right to relief or part thereof, striking it out amounts to a dismissal of that part of plaintiff's claim; and the ruling of the trial court thereon can not be reviewed upon certificate. (p. 724).
A court has undoubted right to expunge from a pleading matter which it deems impertinent; but this right should be exercised with caution, lest pertinent be expunged with the impertinent matter. Before matter is struck out it ought clearly to appear to the court from every aspect of the case that the matter is impertinent.
5. Discovery Bill for Discovery Held Sufficient. A bill for discovery and final decree for the amount found due for royalties, which avers that plaintiff is the patentee and owner of a patent of a machine for making glassware; that defendant as his licensee thereunder for a number of years has been and is now making use of such patented machines of different sizes in the manufacture of its glass-ware; that he does not know when defendant began the use thereof, or how long it has been using them; or how many or where; or the quantities of ware so made; and that a discovery of all such matters is indispensible to plaintiff's relief, is sufficient upon demurrer. (p. 724).
Certified Questions from Circuit Court, Ohio County.
Action by Charles E. Blue against the Hazel-Atlas Glass Company and J. C. Brady as its president and in his own right. The court sustained a demurrer to the bill interposed on behalf of J. C. Brady individually, and dismissed the action as to him in that capacity, and overruled the demurrer of defendant Hazel-Atlas Glass Company. On certified questions.
Reversed in part, affirmed in part.
Geo. C. Beneke and J. M. Ritz, for plaintiff. Hubbard & Hubbard, for defendant.
Plaintiff filed his amended and supplemental bill against Hazel-Atlas Glass Company, a corporation, J. C. Brady as its president and in his own right, for discovery and an accounting for certain royalties alleged to be owing plaintiff by the company, due him under certain patent rights, and for a decree against the company for the amount found due on final accounting. The court sustained a demurrer to the bill, interposed on behalf of J. C. Brady individually, and dismissed it as to him in that capacity. The demurrer of HazelAtlas Glass Company was overruled. The company then moved the court to strike from the bill as immaterial paragraphs, I, II, III, IV, V, VI, and IX, except the averment in paragraph II that J. C. Brady is president of the defendant company, and except the last sentence of paragraph V and the last two sentences of paragraph VI, to which plaintiff objected, but the court sustained the motion and struck out each of the portions covered by the motion. The questions arising on the rulings of the court, on the joint application of the parties, are certified here for review.
Under the second paragraph, sec. 1, chap. 135, Code, what are the questions certified that we can consider?
First, the court sustained the demurrer of J. C. Brady individually and dismissed the bill as to him in that capacity. That was a final order in that respect and cannot be considered here except by appeal in the regular way. Heater v. Lloyd, 85 W. Va. 570, 102 S. E. 228.
Second, the court sustained the company's motion to strike out certain paragraphs and parts of certain other paragraphs and entered an order striking them from the bill. This in effect was the same as if the court had sustained defendant's demurrer to those particular portions of the bill and dismissed it as to those parts; but the matters referred to in those particular portions do not set up any independent claim for equitable relief. If they have any place or perform any office in the bill at all it is because of their bearing upon the single demand for relief and do not finally dispose of that demand; hence the order striking out the particular parts of the bill is not final nor is it appealable; the ruling of the circuit court in that respect, therefore, can be considered here on certificate. Gulland v. Gulland, 81 W. Va. 487, 94 S. E. 943.
Third, the sufficiency of the bill upon demurrer, of course, can be considered.
The bill by paragraphs in substance states: I. That defendant, Hazel-Atlas Glass Company, was organized in 1902 or 1903 as a result of and for the purpose of combining four other corporations, to-wit, the Wheeling Hinge Company, which was originally engaged in making hinges but at the time of the merger was chiefly engaged in making metal caps for glass jars; the Hazel Glass Company, which was engaged in making glassware chiefly for preserver goods and pickle bottles; the Republic Glass Company, which was engaged in making glass tumblers; and the Atlas Glass Company, whose chief business was that of making fruit jars; that the latter company was organized by Charles E. Blue and other named persons, and when it was organized plaintiff was the owner of a number of patents for glass-making machines, and in consideration of the transfer of said patents as well as the improvements thereon which plaintiff might from time to time invent, discover or make, plaintiff was to receive one-fifth of the capital stock of the Atlas Glass Company, and should the capital stock be increased he was to receive enough additional stock so that at all times he would be the owner of one-fifth of the capital stock of that company outstanding.
This paragraph was struck from the bill.
II. That about 1902 or 1903 the four companies were consolidated under the name of Hazel-Atlas Glass Company by transferring the assets of each company to Hazel-Atlas Glass Company for its stock based on the appraised values of the assets of the four merged companies; that the four companies then distributed among their stockholders the stock so received so that all the stockholders of the four merged companies became stockholders in the Hazel-Atlas Glass Company; that plaintiff received as his share of stock 300 shares from the Atlas Glass Company and 100 shares from the Republic Glass Company; that Charles M. Brady was the first president of the Hazel-Atlas Glass Company and a director thereof for many years; W. S. Brady was its first vice president and a director thereof for many years; and J. C. Brady was its first secretary and treasurer and a director thereof and is now a director and also its president.
The court struck out all of this paragraph except the statement relative to J. C. Brady being the company's president.
III. That plaintiff while quite young began working in a glass company of which Charles M. Brady was president, and since that time he has been closely associated with Charles M. Brady, W. S. Brady and J. C. Brady in business; that the companies in which he was interested with the Bradys were chiefly the Hazel Glass Company, Atlas Glass Company and the Republic Glass Company, and as to them he relied upon the business judgment and ability of the Bradys; that he assigned outright to Atlas Glass Company several valuable patents for glass-making machines and licensed to Hazel Glass Company the use of his important patents for glassmaking machines; that in all his dealings with said Bradys, involving the right to use his patents, he reposed trust and confidence in the Bradys and did not deal with them at arm's length.
This paragraph was struck from the bill.
IV. That on December 27, 1900, plaintiff, with Louis F. Blue and Arthur G. Hubbard, made a contract with Hazel Glass Company which was to continue another contract between them for a time and finally superseded it on January 1. 1901, the new contract being filed as Exhibit No. 1. The new contract provided under section 1 thereof that Hazel Glass Company would pay plaintiff and his associates certain royalties according to the sizes for certain articles of glassware which it was then manufacturing under patents controlled by them and that the minimum royalties under that section would be at least $6,000 per year; that plaintiff was the patentee of patents and Louis V. Blue and A. G. Hubbard were assignees of interests in two of them; that Hazel Glass Company paid the royalties as provided until that company was merged into Hazel-Atlas Glass Company, when Hazel-Atlas Glass Company acquired the contract as part of Hazel Glass Company's assets; that defendant company paid royalties under section 1 of the contract until patents described therein expired, which was in 1914; that the contract was assigned to defendant company and for a long time it has exercised the right of Hazel Glass Company thereunder; that the last named company has been dissolved.
This paragraph was also struck from the bill.
V. That section 2 of the contract provides that if the...
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