J.B. Colt Co. v. Mitcham

• Decision Date: 08 November 1926
• Docket Number: 242
• Citation: 287 S.W. 1008,172 Ark. 55
• Parties: J. B. COLT COMPANY v. MITCHAM
• Court: Arkansas Supreme Court

287 S.W. 1008

172 Ark. 55

J. B. COLT COMPANY v. MITCHAM

No. 242

Supreme Court of Arkansas

November 8, 1926

Appeal from Union Circuit Court; L. S. Britt, Judge; affirmed.

STATEMENT OF FACTS.

J. B Colt Company sued L. D. Mitcham in the circuit court to recover $ 234.10, alleged to be due on a promissory note. The suit was defended on the ground that the note sued on was given for a patented carbide generator and appliances without showing upon its face that it was executed in consideration of a patented article, as required by statute.

The record shows that J. B. Colt Company is a foreign corporation, and that L. D. Mitcham is a resident of the State of Arkansas. L. D. Mitcham executed a written order addressed to J. B. Colt Company at its New York City office for one carbide generator and appliances. The written order was transmitted by a traveling salesman to the office of the J. B. Colt Company in New York City, and there accepted in writing by it. The article specified in the order was shipped by the company from New York City to L. D. Mitcham in Union County, Arkansas, and the latter executed his note for $ 234.10 in payment therefor. The note was not executed on a printed form, and did not show on its face that it was executed in consideration of a patented article.

The circuit court, sitting as a jury, found that the note sued on was void, and that the plaintiff was not entitled to recover thereon. From the judgment rendered, the plaintiff has duly prosecuted an appeal to this court.

Judgment affirmed.

Stewart & Oliver, J. M. Shackleford, Jean & Jones and Wilfred C. Roszel, for appellant.

S. E. Gilliam, for appellee.

OPINION

HART, J., (after stating the facts).

The validity of § 7956 of Crawford & Moses' Digest is the only question raised on appeal.

It is conceded that the constitutionality of the act has been sustained in the following cases decided by the Supreme Court of this State and of the United States: Tilson v. Gatling, 60 Ark. 114, 29 S.W. 35; Wyatt v. Wallace, 67 Ark. 575, 55 S.W. 1105; Woods v. Carl, 75 Ark. 328, 87 S.W. 621, and 203 U.S. 358; Ozan Lumber Co. v. Union County National Bank, 207 U.S. 251, 52 L.Ed. 195, 28 S.Ct. 89; Columbia County Bank v. Emerson, 86 Ark. 155, 110 S.W. 214; Ensign v. Coffelt, 102 Ark. 568, 145 S.W. 231; Jonesboro Trust Co. v. Nutt, 118 Ark. 368, 176 S.W. 322; and Allen v. Riley, 203 U.S. 347, 51 L.Ed. 216, 27 S.Ct. 95.

It is also conceded that, in the case last cited and in Patterson v. Kentucky, 97 U.S. 501, 24 L.Ed. 1115, it was expressly decided that art. 1, § 8, of the Constitution of the United States, giving to Congress the power to promote the progress of science and useful arts, does not deprive the States of the right, under their police power, to regulate the form and prescribe the effect of negotiable instruments given for patented articles. The decision in the case of Woods v. Carl, 203 U.S. 358, 51 L.Ed. 219, 27 S.Ct. 99, was also based upon the same construction of this provision of our Constitution by the Supreme Court of the United States. In Columbia County Bank v. Emerson, 86 Ark. 155, 110 S.W. 214, it was held that the exception contained in the act, applicable to merchants and dealers who sell patented things in the usual course of business, contained in § 7959, does not render the act invalid as being an unlawful discrimination; and the case of Ozan Lumber Co. v. Union County National Bank, 207 U.S. 251, was cited in support of the decision.

Counsel for the plaintiff, however, rely for reversal of the judgment upon art. 1, § 8, of the Constitution of the United States, which provides that Congress shall have power to regulate commerce among the several States, and they contend that this court and the Supreme Court of the United States have left open this question because it was unnecessary to a decision of the contentions made in any of the cases heretofore decided.

We do not agree with counsel in this contention. In the case of Tilson v. Gatling, 60 Ark. 114, 29 S.W. 35, the court used this language: "That such an act does not violate § 8, art. 1, of the Constitution of the United States, giving to Congress the power 'to regulate commerce with foreign nations, and among the several States,' etc., and to 'promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries,' we think is settled by the better reason, and the weight of authority."

In Wyatt v. Wallace, 67 Ark. 575, 55 S.W. 1105, the court had under consideration the act in question, and expressly held that a note given by a citizen of this State for an interest in a patent right, which does not show upon its face that it was given therefor, is void. It is true that the case contains no discussion of whether the act in question is in contravention of the interstate commerce clause of the United States Constitution just referred to, but it is of some importance that the same judge wrote the decision in this case as delivered the opinion in Tilson v. Gatling, supra.

Again, in the case of Woods v. Carl, 75 Ark. 328, 87 S.W. 621, the court had the statute in question under consideration, and referred to the case of Tilson v. Gatling, 60 Ark. 114, 29 S.W. 35, as holding that the statute did not invade the power of Congress to promote the progress of science and useful arts by securing to inventors the exclusive right to their discoveries.

Continuing, the court said: "It is difficult to perceive any distinction between the validity of the two statutes in that regard; for, if the Legislature had the rightful power to pass one of the statutes, it had also the power to pass the other. If the jurisdiction of Congress over the subject of patents and patent rights is so extensive as to exclude the power of a State to declare void, unless made in certain form, written obligations given in consideration of sales of patent rights, or patented articles, then it also follows that the State is powerless to alter the established rules of the law merchant so as to permit defenses, not applicable to other negotiable paper, to be made to such paper given in consideration of sales of patent rights or patented articles."

Following this discussion, the court said: "In Wyatt v Wallace, 67 Ark. 575, 55 S.W. 1105, the precise question was presented there as presented here, and the court held that there could be no recovery...