Consolidated Middlings Purifier Co. v. Wolf
| Decision Date | 08 October 1886 |
| Citation | 28 F. 814 |
| Parties | CONSOLIDATED MIDDLINGS PURIFIER CO. v. WOLF and others. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
H. R Brown and R. Mason, for complainant.
Charles Howsen and Henry Howsen, for defendants.
Before BRADLEY and McKENNAN, JJ.
In the case of Consolidated Middlings Purifier Company against Wolf and others, we have come to the conclusion that the bill cannot be sustained.
It is founded on an allegation of infringement of the patent, and not on a claim for royalty under the license granted under the patent. As a bill for infringement of the patent we think it cannot be sustained; that the license which was given authorized the defendants to make and sell the middlings purifier machine, and reserved the royalty, to be paid on the manufacture and sale of the machines. The manufacture and sale of machines would naturally, if not necessarily, occur during the month, and, of course, the payment of the royalty at the end of the month was a subsequent matter, and not a condition precedent, and depended on agreement to pay at the end of the month upon the return of the number of machines and the kind of machines manufactured and sold. This aspect of the license demonstrates that it was an absolute license to manufacture and sell. Now, we are clearly of opinion that under such a license the failure to pay the royalty stipulated and agreed to be paid does not forfeit the license, unless some condition of forfeiture for non-payment be inserted in it, and that the power to manufacture and sell is not at an end upon non-payment, but that the licenser, the patentee, or person granting the license, is left to his action for the royalty or rent, and cannot file a bill upon the patent as for an infringement.
It is contended, however, that by a certain clause in the license the complainant may resort to the patent, on the ground that the parties defendant have acted outside of their license not only manufacturing and selling machines, but granting the right to use them. The clause is as follows: 'Unless said Wolf and Hamaker elect to sell with license to use, which they may do on payment of the license fee, which is in all cases a condition precedent. ' All that the defendants have done, according to our view of the evidence in the case is to manufacture and sell; and that they have done in pursuance of their license. The consequences which result from such manufacture and sale in giving to the purchaser a right to use, are consequences for which the defendants are no more...
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Kirschner v. West Company, 13272.
..."There must be some equitable ground of relief in addition to the mere demand for an account * * *." Consolidated Middlings Purifier Co. v. Wolf, 28 F. 814, 816 (C.C.E.D.Pa.1886). Pomeroy, in his treatise on equity, "The instances in which the legal remedies are held to be inadequate, and t......
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Hazeltine Research Corp. v. Freed-Eisemann Radio Corp.
...while I have some doubt, in view of the nature of this case, whether or not I can direct in this suit payment of royalties (Consolidated Co. v. Wolf C. C. 28 F. 814), nevertheless, as same by mutual consent were paid into court and are subject to its order, and there seems no dispute that t......
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Washburn & Moen Mfg. Co. v. Cincinnati Barbed-Wire Fence Co.
...& Moen Manuf'g Co. v. Freeman Wire Co., was, in every particular, such a case as this, and the demurrer to the bill was sustained. In Purifier Co. v. Wolf, the authorized the defendants to make and sell the patented article, and reserved the royalty, to be paid at the end of each month, upo......
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Vivian v. Robertson
...N.Y. 531; Lawlor v. Metal Co., 53 N.Y.S. 950; Taylor v. Trustees, etc., 43 A. 613; Van Tuyl v. Young, 23 Ohio Cir. Ct. Rep. 15; Purifier Co. v. Wolf, 28 F. 814; 7 Am. and Ency. of Law, p. 118. Second. Those which hold that a party to a contract, who is not in default, may terminate it on fa......