Chem. Elec. Light & Power Co. v. Howard

• Decision Date: 02 January 1890
• Citation: 150 Mass. 495,23 N.E. 317
• Parties: CHEMICAL ELECTRIC LIGHT & POWER CO. v. HOWARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 495

23 N.E. 317

CHEMICAL ELECTRIC LIGHT & POWER CO.

v.HOWARD.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 2, 1890.

Exceptions from superior court, Suffolk county; HAMILTON B. STAPLES, Judge.

Action on a promissory note given by the defendant, James H. Howard, to the plaintiff, the Chemical Electric Light & Power Company, in consideration of a written agreement by the plaintiff to assign to him an English patent, which was therein agreed to be “in full force and effect,” otherwise defendant was to be relieved from the payment of the note. Defendant contended the patent was not in full force and effect.

The plaintiff offered to prove “what the parties meant and intended by the words ‘in full force and effect,’ ” viz., that the English patent had not lapsed for nonpayment of fees, and that at the time of signing this instrument it was agreed by Howard and the plaintiff that he was not to pay this note if the English patent had lapsed, and it was expressly stated and agreed by Howard and the plaintiff that the plaintiff would not attempt to enter into any litigation to maintain the Jarriant patent, and that Howard was to take his chances as to the validity of the patent and, if it proved to be valid, was to make a further payment of ten per cent. of his profits, and that Howard did not know at the time that the patent fees had been paid.” Upon this offer of proof the court refused to admit the evidence, and the plaintiff excepted to such refusal, and to the exclusion of the evidence offered. The judge sent the jury out at 1 P.M. Somewhat after 4 o'clock, on the same day, the jury were sent for, came into court, and reported that they had not agreed. The judge sent them out again, and stated to them that he would keep the court open, and directed them when they had agreed upon a verdict to come into court and render the same. The judge then retired to the lobby. At about half past 4 o'clock all but one of the jurors came into the court-room, in charge of the officers. The plaintiff's attorney, who was then present, asked one of the officers in charge of the jury where the other juryman was. The officer reported to the judge, in the lobby, that the jury had returned to the court-room to return their verdict, and that one of the jurors was missing, and was sent by the judge to South Boston, whither the juryman had gone to his store, to bring the juryman back. Plaintiff's attorney was informed by the other officer in charge of the jury that it would take an hour and a half to go to South Boston and back. During none of this time, after the return of the jury, was the judge in the court-room. Plaintiff's attorney then left the court-room, and returned in an hour's time, and found the court-room empty, and he got no information of what had been done that night, and went away for the night at a quarter before 6 o'clock. The next morning, on inquiry at the clerk's office, he was informed that a verdict had been rendered for the defendant. He then saw the presiding judge at the earliest opportunity, viz., at the close of that morning's session, and was then informed of what had taken place. It appeared, on hearing of the motion for a new trial, that the jury agreed on their verdict, and the officer in charge of them opened the door of the jury-room, and proceeded to conduct them to the court-room to return their verdict. While so doing one of the jurors, (being the missing one aforesaid,) without the officer's knowledge or that of his fellows, left the body of jurors, and went to a water-closet, and thence to his home in South Boston. On the fact being reported to the judge, the court ordered the officer to keep the rest of the jurors together in the court-room, and go for the missing juror. He did so, and brought him back to the court-house, when he took his place with the other jurors, and the verdict was then returned and affirmed in the usual form in open court. Neither the plaintiff nor its...