Dice v. the Joliet Mfg. Co..

• Decision Date: 31 May 1882
• Citation: 11 Ill.App. 109,11 Bradw. 109
• Parties: ANDREW F. DICEv.THE JOLIET MANUFACTURING COMPANY.
• Court: United States Appellate Court of Illinois

11 Ill.App. 109

11 Bradw. 109

ANDREW F. DICE

v.THE JOLIET MANUFACTURING COMPANY.

Appellate Court of Illinois, Second District.

May Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding. Opinion filed August 8, 1882.

Messrs. GARNSEY & KNOX, for appellant; that the bill can not be maintained as a bill for specific performance, because on its face it shows an attempt to compel the performance of something outside the written contract, cited Story's Eq. Jur. 770; 3 Parsons on Contracts, 389; Pomeroy on Contracts, 325; Ryan v. Derby, 20 N. J. Eq. 232; Robinson v. Page, 3 Russell, 113.

Courts do not make contracts for parties, and then enforce them: Rush v. Voigt, 55 Pa. St. 437; Kemp v. Humphreys, 13 Ill. 576; Phelps v. Ill. Cent. R. R. Co. 63 Ill. 469; Stow v. Russell, 36 Ill. 18; Stow v. Robinson, 24 Ill. 532.

It is a matter of judicial discretion whether a court will decree a specific performance or not: Frisby v. Ballance, 4 Scam. 287; Fitzpatrick v. Beatty, 1 Gilm. 468; Hough v. Coughlan, 41 Ill. 131, 3 Parsons on Contracts, 351.

In cases of specific performance, the contract must be certain, mutual, clear, equitable and productive of no hardship, and the proof must be clear: Walpole v. Orford, 3 Ves. 420; Fry on Specific Performance, * 90; Brewer v. Wilson, 17 N. J. Eq. 182; Pomeroy on Contracts, 207; Blanchard v. D. L. & M. R. R. Co. 31 Mich.____; Hartwell v. Black, 48 Ill, 304; Gosse v. Jones, 73 Ill. 508; Bowman v. Cunningham, 73 Ill. 51; Hill v. Trailor, 2 Gilm. 370; Walker v. Douglass, 70 Ill. 445.

The allegations of the bill must be supported by the proof: Rowan v. Bowles, 21 Ill. 19; Tuck v. Downing, 76 Ill. 70; White v. Morrison, 11 Ill. 366; Helm v. Cantrill, 59 Ill. 524; Slocum v. Slocum, 9 Bradwell, 142.

Each part of a written instrument must be viewed in the light of the other parts: McCarty v. Howell, 24 Ill. 343; Stout v. Whitney, 12 Ill. 219; Doyle v. Teas, 4 Scam. 202.

As between employer and employe, the right to an invention belongs to the one who originally conceived it, and followed it up to a practical invention: Agawam Co. v. Jordan, 7 Wall. 602; Collar Co. v. Van Dusen, 23 Wall. 563.

Mr. GEORGE S. HOUSE, for appellee.

LACEY, J.

On May 11, 1881, the appellee filed a bill in equity in the circuit court in Will county, seeking to compel the appellant to assign to it a certain invention in “check rowers,” originally invented by him, for the purpose of enabling it to apply for a patent in his name, for its use, and to enjoin him from selling and assigning the same. A temporary injunction was granted, and on final decree appellant was decreed to convey his right to the invention to the company, in accordance with the prayer of the bill, and also perpetually enjoined against assigning to others, from which an appeal was taken to this court.

The bill alleges that the invention was made by appellant while he was in its employment and claims under and by virtue of the following contract entered into by it and him, to wit:

“Articles of agreement entered into between the Joliet Manufacturing Company of Joliet, Ill., and Andrew F. Dice, now residing at Aurelia, Iowa. The said Andrew F. Dice agrees to work for the company named, for the term of five years from the 1st to the 15th of November next, in such capacity pertaining to the manufacturing of shellers and powers, and disposing of the same, as the company may consider for their best interest, as may be assigned by the president of the company; that he will work for the best interest of the company, in every way that he can, and in whatever way such aid can be given, shall belong to the company, that is, improvements (previous to this date not included), that he may make or cause to be made.

For which services the Joliet Manufacturing Company agree to pay the said Andrew F. Dice twenty-seven and one half cents per hour, and agree to give him the privilege to make his time full--that is, that time can be averaged so as to make ten hours per day the year round--for all such labor performed, computing that time every month, and pay the same the 10th of the following month.”

October 18, 1881.

“The JOLIET MANUFACTURING Co.,

By A. H. SHREFFLER, Pres't.

A. F. DICE.”

That the appellant entered upon the employment of the appellee in pursuance of the agreement, and about January 1, 1881, the appellee added to his business the manufacture of “check rowers,” an attachment to machines known as “corn planters;” that appellant was assigned by the president of appellee to the superintendence of the manufacture of the check rowers; that appellant accepted such employment, and entered upon it as part performance of his agreement above set forth, and so continued till the latter part of the month of April, 1881; that some time in March, appellant informed appellee that it would be for its best interest that he should employ his time in perfecting the invention on the check rower for the benefit of appellee, and appellee should assist him. That appellee did assist him. That during the time appellee assisted him, he was paid his regular wages under the written agreement. That other employes of appellee assisted him, and made the patterns for the experimental machine by appellee's direction and at its cost.

The appellee then claims that under and by virtue of the written...