Appeal from Circuit Court, Butler County; Lew R. Thomason, Special Judge.
BRADLEY, J.
Plaintiff brought suit to recover for the 11 months from March, 1916, to January, 1917, both inclusive, on the following contract:
"Franck-Philipson & Co. Wood Process. "Agreement.
"This agreement made on this 6th day of September, 1915, between Franck-Philipson & Co., of Chicago, in the county of Cook, and state of Illinois, a corporation of Illinois, owner of U. S. patent No. 1068580 dated July 29, 1913, for process of bleaching wood, licensor, and Hanna & Young Handle Co., of Poplar Bluff, in the county of Butler and state of Missouri, licensee, witnesseth: That, whereas, the licensee is desirous of using and practicing the said process for bleaching handles at Poplar Bluff factory in Missouri, but not elsewhere, for the term of (5) five years from the date thereof: The licensee agrees to pay licensor in consideration of the grant of this license and during the term thereof the sum of ($75.00) seventy-five dollars per month, payable on the first of each calendar month after the completion of preparations for and instructions of licensee in the use of the process, such preparations to be completed and instruction given within thirty (30) days from the date hereof. Licensee further agrees that in the event that licensee shall produce by the use of said process and sell more than 400,000 per annum, then licensee shall pay to licensor in addition to license fee for such year, as royalty, a sum equal to 1½ per dozen on all of said output produced and sold during said year in excess of 400,000, said royalty to be paid within thirty days after expiration of each year from date hereof. Licensor is empowered to examine books and records of licensee at all times during the business hours to check up production and sales of said product. The licensee agrees to permit the authorized agent or representative of the licensor to have access at all times during working hours to that part of the premises of the licensee in which bleaching is performed. Should the licensor become possessed of any improvement in the art of bleaching wood or of information respecting advantageous sources of supply of chemicals for use in such art, it will communicate the same to the licensee, it being, however, expressly agreed that any and all information so communicated shall be held as a trade secret by the licensee and the latter shall not use or take advantage of the same after the contract shall be terminated. Failure of licensee to pay the license fees and royalties specified within ten (10) days after due, or if licensee shall fail to keep and perform any of the obligations hereinbefore assumed and agreed to, the licensor may at its option terminate this license by notifying licensee in writing that the license is canceled, whereupon all right of licensee hereunder shall forthwith cease and determine, without, however, discharging licensee from liability to the licensor for license fees and royalties due and unpaid at service of said notice. This license shall not be assignable in whole or in part. In witness whereof, the parties above named have hereunto set their hands the day and year first above written. [Signed] Franck-Philipson & Co., by Alexander Sylvester Alexander, Representative. Hanna & Young Handle Co., per Clay Hanna, Pres. Witnessed: C. W. Young."
The answer is in effect that there was a warranty that the process would bleach handles substantially as well as certain sample handles were bleached by this process before the contract was entered into, and at practically the same cost. The answer material to the defense is as follows:
"Further answering plaintiff's amended petition, defendant states that this patented process and all of the ingredients thereof, as well as the cost of procuring said ingredients, and making the necessary preparations for using said process, were, at the time the contract above mentioned was entered into, secret, and were known only to plaintiff and its licensees, and were totally unknown to this defendant. Further answering plaintiff's amended petition, defendant states that prior to the date of the aforesaid contract, plaintiff represented and warranted that the cost of making the necessary equipment and preparations for using said process was practically nothing; that defendant relied, of necessity, upon these representations and warranties by reason of the fact that such knowledge was peculiarly within the plaintiff, by reason of the fact that the process was a secret one, and had not been communicated to defendant; that such representations and warranties were false and untrue; that actually the cost of making the necessary preparations and equipment was approximately $350; that defendant received instructions from plaintiff as to the construction of this equipment, and that defendant followed said instructions, at a cost to it of approximately $350 as aforesaid.
"Further answering plaintiff's amended petition, defendant states that plaintiff represented and warranted that defendant could buy the necessary chemicals to be used in this process upon the open market; that this representation and warranty was made by plaintiff prior to the execution of said contract; that said representation and warranty was false and untrue; that actually said chemicals could be purchased from only one concern in the United States, and could not be purchased in the open market; that defendant was, of necessity, compelled to rely upon said representation and warranty by reason of the fact that it did not even know the names of the different chemicals which were to be used in said process, owing to the fact that said process was a secret one, and had not been communicated to defendant at the time said representation and warranty was made.
"Further answering plaintiff's amended petition, defendant states that on or about August 18, 1915, defendant sent to plaintiff one dozen handles which plaintiff was to treat with its process, and return to defendant as samples of what the process would do; that plaintiff claimed and represented that it treated said handles with its process, and returned them to defendant on or about August 28, 1915; that said handles when received by defendant were bleached out white, and in good marketable condition; that plaintiff represented and warranted that its process aforesaid would bleach handles the same degree of whiteness and marketability as said samples at a cost not to exceed twelve cents a dozen; that defendant relied upon such representation and warranty, and believed them to be true; that as a matter of fact it was impossible for defendant to secure the degree of whiteness and marketability as shown by said samples, by
the use of plaintiff's process, at a cost to defendant of 12 cents a dozen; and defendant states the fact to be that it cost approximately 25 cents a dozen to bleach handles by said process; and that even at that cost, defendant was unable to bleach its handles to the same degree to which the samples were bleached; and that defendant had not been able to obtain the same degree of whiteness in any handles by means of said process, as is shown in the samples prepared by plaintiff, at whatever cost to defendant.
"Further answering plaintiff's amended petition, defendant states that plaintiff, long prior to the execution of said contract, represented and warranted that a bath of 80 units of said process would bleach handles like the samples above mentioned, that is, to that degree of whiteness and marketability; that defendant relied upon said representations and warranties, and believed them to be true; that defendant had no means of ascertaining the truth of said representations and warranties, owing to the fact that said formula was secret and known only to plaintiff and its licensees, but defendant states that said representations and warranties were false and untrue; that as a matter of fact defendant was compelled to use, and did use, a bath of 400 units of said mixture, in an effort to produce handles similar to the aforesaid samples, and was unable to do so.
"Further answering plaintiff's amended petition, defendant states that long prior to the execution of the aforesaid contract, plaintiff represented and warranted that handles which remained in the solution contemplated by said process for six hours would be bleached to the same degree as the samples. Defendant states that it relied upon said representations and warranties, and believed them to be true; that it had no means of ascertaining the truth or falsity, owing to the fact that said process was secret and known only to plaintiff and its licensees, but that said representations and warranties were false and untrue; that as a matter of fact it was necessary to leave the handles in said solution all night, in order to obtain a bleach which even approached in whiteness the samples; and that even though said handles remained in said solution all night, they were not nearly so well bleached as said samples. Defendant further states that the longer that said solution stood in the vats, the weaker it became, and the less action it had upon the handles in the way of bleaching them."
It does not appear that any reply was filed, but the case was tried as though a general denial of the new matter had been filed. Upon trial before the court and a jury verdict and judgment went for defendant, and plaintiff appealed.
Appellant makes many assignments of error, but all of consequence might be...
