Hein v. Westinghouse Air Brake Co.

• Decision Date: 25 September 1908
• Docket Number: 28,067.
• Citation: 164 F. 79
• Parties: HEIN v. WESTINGHOUSE AIR BRAKE CO.
• Court: U.S. District Court — Northern District of Illinois

164 F. 79

HEIN v. WESTINGHOUSE AIR BRAKE CO.

No. 28,067.

United States Circuit Court, N.D. Illinois, Eastern Division.

September 25, 1908

D. S Wegg, for plaintiff.

Dolph Buell & Abbey, for defendant.

SANBORN District Judge.

Action of covenant to recover an agreed sum on the sale of a patent right. Plaintiff moves for an order to simplify the pleadings, and to relieve him from a strict compliance with the rules of common-law pleading, in order to prevent undue and vexatious prolixity. The questions presented are whether the court has power to change the rule of pleading, and whether, if it has the power, it should be exercised in this case.

To the declaration defendant pleaded non est factum, and 21 pleas to the effect that plaintiff was not the owner of the inventions covered by the contract sued on; that for the same reason the consideration failed; that plaintiff was not the owner or inventor of the generic invention sought to be assigned, but only of certain subordinate features thereof which are of no value to defendant without the broad invention; that for the same reason the consideration failed; that plaintiff covenanted in the contract sued on that he was the owner of the inventions assigned, but he was not such owner; that the consideration has failed for the same reason; that for the same reason there is a breach of covenant, because the use of the subordinate features assigned is of no value without the broad invention; that for like reasons the consideration has failed; that plaintiff covenanted in such agreement to prosecute to effect applications for patents on the inventions assigned, and secure such patents, but did not do so, his applications being rejected as to the broad invention, and that the subordinate inventions are of no value without the other; that for the same reason the consideration has failed; that by reason of the rejection of plaintiff's application defendants have been evicted from the use of the inventions sought to be assigned; for the same reason the consideration has failed; eviction in another form, in connection with other terms of the contract, is pleaded; failure of consideration for the same reason; that plaintiff did not prosecute his application for patent with reasonable diligence; failure of consideration for the same reason; that the Patent Office decided an interference proceeding between plaintiff and one Shepard, involving the inventions sought to be assigned, in Shepard's favor, from which decision plaintiff took no appeal, and for that reason plaintiff's invention was worthless; failure of consideration for the same reason; and that the plaintiff's device was inoperative, wherefore the consideration has failed.

The 22 defenses are practically resolved to 4: That defendants did not make the contract sued on, that plaintiff was not the owner or inventor of the patent right attempted to be sold or assigned, that such right was worthless, and that the Patent Office decided that another man was the real inventor of the device sought to be assigned; but by the common-law system of pleading in force in this district it takes 70 pages of typewriting to state these 4 defenses, 60 pages of which are mere repetition.

The attorney for the plaintiff, conceiving that he has numerous defenses to the defendant's pleas, finds their presentation under the common-law system somewhat cumbersome. He does not want the court to do what the Legislature did in creating the Cook county municipal courts, abolish all pleading whatever by substituting a bill of particulars; but, conceiving that the application of the highly technical rules of Chitty and Stephen will, in the language of the Supreme Court, 'unwisely incumber the administration of the law' and 'tend to defeat the ends of justice' (Railroad Co. v. Horst, 93 U.S. 291, 300, 23 L.Ed. 898), he applies to the court for an order allowing him to reply his defenses without the necessity of repeating, in the statement of each defense, the recital of facts supporting all or most of such defenses.

To use his own language, this is 'to avoid unnecessary repetition, unconscionable prolixity and confusion, and resulting enormous record, and to make plain and simplify the issues. ' And he insists that a federal court, by the terms of Rev. St. Sec. 914 (U.S. Comp. St. 1901, p. 684), providing that the practice, pleading, forms, and modes of proceeding in the federal courts shall conform as near as may be to the practice, etc., in the courts of the state, is authorized to relieve him from the necessity of repeating the statement of the same facts in each separate replication, and to permit him, if the defendant will suffer no injury, to state his facts once for all, and reply all his defenses without repetition. He further states that any order to be made on this application should relate to form only, and not substance, and should not be construed as deciding the substantial validity of any defense or reply so authorized.

It may be said that the facts claimed by plaintiff to exist, or the more important ones, quite briefly stated, are that in 1902 Hein conceived that he had discovered a certain broad generic invention in friction draft and buffing apparatus for use on railroad cars, and filed applications for a patent, and for patents on apparatus subsidiary to the broad invention. Shepard also claimed prior discovery of the same broad invention. After negotiation with Westinghouse the contract in suit was made, dated November 24, 1902, assigning the inventions, and all like inventions acquired by Hein, to Westinghouse, who was to pay 25 cents on each device of all friction draft and buffing apparatus made by...