Gulbenkian v. Penn

• Citation: 276 S.W.2d 939
• Decision Date: 23 November 1953
• Docket Number: No. 6341,6341
• Parties: Garabed GULBENKIAN et al., Appellants, v. Frederic H. PENN et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 939

276 S.W.2d 939

Garabed GULBENKIAN et al., Appellants, v. Frederic H. PENN et al., Appellees.

No. 6341.

Court of Civil Appeals of Texas, Amarillo.

Nov. 23, 1953.

Rehearing Denied Dec. 21, 1953.

Palmer & Rochelle, Dallas, for appellants.

Brundidge, Fountain, Elliott & Bateman, Dallas, for appellees.

PITTS, Chief Justice.

Appellants, Garabed Gulbenkian, Arax Gulbenkian and Hrepsime Gulbenkian, the two surviving children and the surviving widow, respectively, of Kerope Gulbenkian, deceased, filed suit against Frederic H. Penn for damages by reason of an alleged breach of the provisions of a certain license agreement executed on December 19, 1939, by and between Kerope Gulbenkian during his lifetime and Frederic H. Penn under and by virtue of a certain United States Patent concerning the monthly payment of a minimum royalty in the sum of $250 by Penn as licensee to Gulbenkian as licensor during the life of the license agreement. Appellants further alleged that Kerope Gulbenkian died thereafter on December 29, 1940, leaving them as his sole surviving heirs.

A motion for summary judgment for the $250 per month for six years and one month or for 73 consecutive months aggregating the total sum of $18,250 was first sustained by the trial court, from which an appeal was perfected to the Dallas Court of Civil Appeals of the Fifth Supreme Judicial District, which Court reversed and remanded the cause for a trial on the merits since the record revealed triable issues of fact to be determined. Penn v. Garabed Gulbenkian, Tex.Civ.App., 243 S.W.2d 220. Such judgment was affirmed by the State Supreme Court, 151 Tex. 412, 252 S.W.2d 929. We refer to both of these citations for a further and more complete statement of the case. However, while the case was on appeal from the summary judgment, Frederic H. Penn died in December of 1950 and William D. Penn of Dallas County and the Mercantile National Bank of Dallas County thereafter qualified on January 9, 1951, as joint independent executors of the estate of Frederic H. Penn, deceased, and were by amended pleadings made proper party defendants to this suit. They will be hereafter referred to as appellees.

The case now before us was tried to the court without a jury and judgment was rendered for appellant for the $250 monthly royalty payments from July 4, 1947, to December 4, 1948, both months inclusive, being a total of 18 months and the aggregate sum being $4,500, together with accrued interest thereon in the amount of $1,308.75. Appellants perfected an appeal to the Dallas Court of Civil Appeals and the same was transferred to this Court by order of the State Supreme Court in equalizing the court dockets. Appellants contend that the expiration date of the license agreement was August 4, 1953, and that they were therefore entitled to the minimum royalty monthly payments of $250 from July 4, 1947, to August 4, 1953, the same being for six years and one month or for 73 consecutive months, amounting to a total of $18,250 with 6% interest thereon, while appellees contend that the date of expiration of the license agreement was December 15, 1948, as found by the trial court. Therefore the controlling issue to be here determined is the date of the expiration of the original license agreement in question executed on December 19, 1939, by and between Kerope Gulbenkian and Frederic H. Penn, both now deceased, as the said agreement affected the promise of monthly payments by licensee Penn to licensor Gulbenkian of a minimum royalty of $250 during the remainder of the life of the said license agreement. Such was one of the defensive issues or triable issues of fact urged as grounds for reversing the summary judgment on the former appeal.

At the request of appellants the trial court made and filed its findings of fact and conclusions of law and it likewise filed further findings at the request of appellants. We shall make references here only to the material findings and conclusions concerning the controlling issue. The trial court found, in effect, that the expiration date of the United States Patent No. 1,836,134 (known as the Schotz Patent), upon which the life of the license agreement in question depended, was December 15, 1948, and that Frederic H. Penn, the original licensee, repudiated the license agreement on October 21, 1947, but that no monthly payments were made after June of 1947. For which reasons the trial court concluded, in effect, that the life of the license agreement, according to the record, expired on December 15, 1948, and that appellees were liable to appellants only for the $250 monthly minimum royalty payments from July, 1947, to December, 1948, both months inclusive, or for a period of 18 months, making a total sum of $4,500, with interest thereon in the sum of $1,308.75, aggregating...