Gilman & Son, Inc. v. Turner Tanning Mach. Co.

• Decision Date: 12 April 1919
• Citation: 122 N.E. 747,232 Mass. 573
• Parties: GILMAN & SON, Inc., v. TURNER TANNING MACHINERY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 573

122 N.E. 747

GILMAN & SON, Inc.,

v.TURNER TANNING MACHINERY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1919.

Report from Superior Court, Suffolk County; John F. Brown, Judge.

Action by Gilman & Son, Incorporated, against the Turner Tanning Machinery Company, resulting in verdict for defendant. On report to the Supreme Judicial Court. Judgment ordered entered for plaintiff.

The first count of plaintiff's declaration alleged the making of the above-described written agreement of January 10, 1912; and alleges:

‘That in case the defendant failed to pay, within any calendar year, royalties or license fees computed as aforesaid, on a minimum of twenty (20) machines, that the plaintiff should have a right to terminate said agreement upon giving a written notice within thirty (30) days unless the full royalties or license fees on twenty (20) machines should be paid to the plaintiff by the defendant within said thirty (30) days period.’

The said count further alleges:

‘That on or about January 15, 1913, the defendant having failed to pay the full royalties or license fees computed as aforesaid, on a minimum of twenty (20) machines for the year 1912 by the sum of three thousand ten dollars and thirty-six cents ($3,010.36), the plaintiff demanded the payment of said sum from the defendant and on or about February 6, 1913, made a further written demand upon the defendant for said sum.’

And further alleged:

That the plaintiff when making said written demand for said sum of $3,010.36 offered, nevertheless, to allow said sum due as aforesaid to extend for payment into the year 1913.

That thereafter the plaintiff and the defendant through its duly authorized representative conferred with reference to the payment of said unpaid royalties or license fees and said offer was then again renewed by the plaintiff and accepted by the defendant and said acceptance was thereafter confirmed and reiterated by the defendant in its letter written to the plaintiff on or about March 24, 1913, whereby the defendant agreed to pay to the plaintiff full royalties or license fees on a minimum of 20 machines computed as provided in said agreement for each of the years 1912 and 1913, at the expiration of the year 1913.

(A copy of said letter of March 24, 1913, appears as Exhibit 8, annexed to this report.)

That during the year 1913. The defendant manufactured and sold 9 of said machines, leaving a balance of 11 machines, for said year upon which royalties of license fees remained unpaid at the expiration of the year 1913, the total amount then due as royalties or license fees computed as above under said agreement for said year 1913 being the sum of $1,947.94.

That the plaintiff has at all times done and performed all things by it to be done and performed to entitle it to receive payment of said royalties or license fees for the years 1912 and 1913, but the defendant though often requested has failed, neglected, and refused to perform and to do its part of said agreement and to perform and do the things which by it were agreed to be done, and has failed, neglected, and refused, though often requested, to pay the plaintiff the license fees and royalties due it as aforesaid for the years 1912 and 1913

-and concluded with an allegation that the defendant owed the plaintiff the sum of $5,608.10, as more particularly appeared by the attached account, designated as Exhibit B.

Alton F. Tupper, of Boston, for plaintiff.

Francis L. Maguire, of Boston, for defendant.

CROSBY, J.

This is an action to recover royalties or license fees on 28 hide-working machines. Under a written agreement dated January 10, 1912, the plaintiff (which had previously acquired the right to do so from the owner of the patent) licensed the defendant to manufacture and sell the machines until December 12, 1928, unless the agreement should be earlier terminated in accordance with its provisions. The agreement provided that the defendant should render to the plaintiff quarterly returns showing the number of machines manufactured and sold by it, and on the first day of the month following the rendering of such returns should pay to the plaintiff the amount shown thereby to be due as license fees. It also contained the following provision:

‘In the event that the licensee should fail to make the returns or pay the royalties or license fees in the manner and form as herein specified, or should fail within any calendar year, commencing January 1, 1912, to pay royalties or license fees unto the licensor for at least twenty (20) of said machines containing said patented inventions or improvements, said licensor may terminate this license agreement by serving a thirty (30) days written notice of...