Born v. Schrenkeisen

• Decision Date: 05 June 1888
• Citation: 17 N.E. 339,110 N.Y. 55
• Parties: BORN v. SCHRENKEISEN et al.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 55

17 N.E. 339

BORN

v.SCHRENKEISEN et al.

Court of Appeals of New York.

June 5, 1888.

Appeal from general term, superior court, city of New York.

Action by Peter Born against Henry Schrenkeisen and Martin Schrenkeisen to recover royalties on a patent assigned by the plaintiff to defendants. Judgment for defendants. Plaintiff appeals.

The answer does not contain an allegation which would justify a reformation of the contract. To authorize a reformation, the pleading must aver facts showing a mutual mistake, and demand the reformation. Bank v. Eames, 4 Abb. Dec. 83; Stevens v. Mayer, 84 N. Y. 296. The findings of the court do not justify a reformation of the contract. Nevins v. Dunlap, 33 N. Y. 676;Mead v. Insurance Co., 64 N. Y. 453;Kilmer v. Smith, 43 N. Y. Super. Ct. 461; Moran v. McLarty, 75 N. Y. 25;Jackson v. Andrews, 59 N. Y. 244.

Wehle & Jordan, (Henry Wehle, of counsel,) for appellant.

W. W. McFarland, for respondent.

EARL, J.

The plaintiff instituted this action to recover the amount of royalties claimed to be due from the defendants upon an assignment of a patent. The invention was a folding chair, and the patent therefor was issued June 27, 1876, and the plaintiff assigned the patent to the defendants, October 7 of the same year. The assignment was absolute in form, and purported to be in consideration of $1,200, and a royalty of 75 cents on each chair manufactured under the patent. At the same time the defendants gave to the plaintiff a license to make, use, and sell folding chairs under the patent at his shop in the city of New York, for the full term of the letters patent, the defendants agreeing during that time not to sell any chairs made under the patent in the cities of New York and Brooklyn. On the back of the license was written the following agreement: ‘We agree to number the chairs in rotation, pay royalty every month if desired, and show our sales-books for the confirmation of the numbers sold. We further agree to pay royalty on not less than six hundred chairs a year, and should we fail in this the agreement shall be null and void.’ Signed by ‘M. & H. SCHRENKEISEN, By. M. SCHRENKEISEN.’ The defendants went on and manufactured some chairs under the patent, and paid the plaintiff the royalties in full for all the chairs manufactured by them. But they did not manufacture 600 chairs a year, and this action was commenced May 13, 1884, to recover royalties upon the claim of the plaintiff that he was entitled to royalties upon not less than 600 chairs each year. The defendants in their answer alleged, in substance, that it was the true agreement between the parties that, unless they were able to sell at least 600 chairs a year, the invention should be considered a failure, and abandoned, and the entire agreement between the parties should terminate and become void, and that it was the intention of the parties to express that agreement in the memorandum indorsed upon the license, and that it was not the intention of either party to thereby express an obligation or agreement on the part of the defendants to make 600 chairs a year, or pay the sum of 75 cents per chair upon that number of chairs, whether they were in fact sold or not; and they allege that they had fully accounted to the plaintiff for and paid to him all the royalties upon the number of chairs made and sold by them. It is unnecessary to notice the curious stages by which, after one trial of the action, the present issues between the parties were reached. The case was brought to trial at a special term of the superior court, and the court found, as matter of fact, that at the time of making the agreement for the sale and transfer of the patent the plaintiff desired that the defendants should become obligated to pay him 75 cents a chair on not less than 600 chairs annually; that the defendants refused to agree to that, and refused to pay royalty on any more chairs than they manufactured, but offered to agree that, if the number did not amount to 600 a year, then and in that case the agreement should be entirely null and void; that the plaintiff assented to that agreement, and, in order to express the agreement, the memorandum was written on the license as above set out; that the agreement between the parties, as finally made, was that the plaintiff should assign to the defendants the patent, receiving $1,200 in cash down, and 75 cents a chair upon each chair manufactured and sold by the defendants under the patent, and that, unless they were able to manufacture and sell at least 600 chairs a year, then...