Landers v. Foster

• Decision Date: 12 April 1904
• Citation: Landers v. Foster, 34 Wash. 674, 76 P. 274 (Wash. 1904)
• Parties: LANDERS v. FOSTER et al.
• Court: Washington Supreme Court

76 P. 274

34 Wash. 674

LANDERS v. FOSTER et al.

Supreme Court of Washington

April 12, 1904

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Action by Clyde Landers against Harrison G. Foster and others.From a judgment for defendants, plaintiff appeals.Reversed.

E. W. Taylor and R. H. Lund, for appellant.

C. M Riddell, John A. Shackleford, and J. M. Ashton, for respondents.

DUNBAR J.

The appellant invented an electric air heating fan, for which he made application to the United States Commissioner of Patents for a patent.Pending the issuance of the patent the following agreement was executed between the appellant and one Arthur E. Grafton:

'This agreement, made this 20th day of March, 1901, by and between Clyde Landers, party of the first part, and Arthur E. Grafton, party of the second part, both of Tacoma Pierce county, Washington, provides:

'First.That in consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, Clyde Landers gives to Arthur E. Grafton an option on a controlling interest (to wit, 51 per cent.) in an electric device known as an air heating fan the principle of which is involved completely in a machine now in operation at the Tacoma Hotel Barber Shop; Olympic Club Barber Shop and various other places in the city of Tacoma, application for the patent of which has been filed with Munn & Co., patent attorneys of Washington, D. C. and the first payment of $25.00 for which has been made and acknowledged.Said option to last and bind fast said Clyde Landers until Mondayat 2 p. m. March 25th, 1901.

'Second.That if the said Arthur E. Grafton secures and pays to Clyde Landers on or before the date and hour specified the sum of one thousand (1,000) dollars, then this shall be accepted by Clyde Landers as a portion of the purchase price of 51% interest in the above described application for patent for which has been made.

'Third.Said Clyde Landers agrees that upon payment of the above mentioned $1,000 he will absolutely refuse and cease to consider any offer or proposition to sell, lease or dispose of any further interest in the device or to manufacture or offer for sale, any of the machines using the principle of this air heating fan.

'Fourth.That as soon as a patent shall have been regularly issued by the patent office at Washington, D. C. then shall be paid to Clyde Landers the further sum of $4,000 which shall be full and complete payment for this 51% interest in the title and patent aforesaid air heating fan.If no patent is issued, no recourse shall be made on Clyde Landers for the first payment of $1,000.

'Fifth.The purchaser of this 51% interest must agree to organize a nonassessable corporation and issue to Clyde Landers 49% of the capital stock.As a further consideration Clyde Landers agrees to invent and furnish free of charge to the corporation which shall be formed as above described, all devices and improvements which he shall invent or make for a period of ten years from date of this above described invention, provided that said corporation shall stand all costs and expenses of experiments and improvements and regularly employ said Clyde Landers at a salary to be agreed upon, not to exceed two hundred dollars per month.'

On March 25, 1901, the date on which the option of Grafton expired, according to the complaint, the respondents, for the purpose of securing and carrying out the terms of the said option, entered into a contract which is stated in appellant's amended complaint as follows:

'(1) That prior to the ___ day of March, 1901, the plaintiff herein invented a certain electric air heating fan, and thereupon made application to the Commissioner of Patents of the United States, in Washington, D. C., for the issuance of a patent thereon.

'(2) That afterwards, and on the 5th day of March, 1902, the said Commissioner of Patents at Washington, D. C., according to the specifications referred to in plaintiff's Exhibit B, hereto attached, duly made an order allowing the said patent so applied for on the said electric air heating fan, and then and there directed that a patent issue therefor on the order of the parties applying therefor, or their successors or assigns.

'(3) That after said patent had been applied for, and before the same had been allowed, and on or about the 25th day of March, 1901, plaintiff herein entered into an agreement with the defendants, by the terms of which agreement plaintiff agreed to sell, and the defendants agreed to purchase from plaintiff, 51% of the said device.

'(4) That at the time of the making of the said agreement, it was agreed by the defendants and the plaintiff, in part consideration of the sale, and the transfer to them of the said 51% of the said electric air heating fan, that then the defendants, on their part, would pay or cause to be paid to the plaintiff the sum of $5,000, $1,000 to be in cash in hand, and the sum of $4,000 to be paid to the said Clyde Landers by the defendants as soon as a patent should be regularly granted by the Commissioner of Patents at Washington, D. C.All of which is more fully set forth in a certain memoranda and agreement made and entered into on the 5th day of March, 1901, by and between the defendantArthur E. Grafton and the plaintiff, giving to the said Grafton an option for the purchase of the said 51% of the said device, and the said Grafton then and there agreeing within the time specified to secure and pay to the plaintiff herein the said several sums of money therein designated, and in pursuance thereof, and in accordance with the terms of the said option and agreement, the said defendants, and all of them, accepted and approved the terms of the said agreement, and then and there, on the 25th day of March, 1901, agreed to and with the plaintiff herein that, in consideration of the transfer to them of the said 51% as set forth in the said option, that then they(the defendants), and each of them, would perform or cause to be performed each and every of the terms of said agreement, and fulfill its conditions and particulars, and in particular to pay to the plaintiff the sum of money as therein stated, and then and there did pay to the plaintiff the sum of $1,000, in accordance with the terms of the said option.A copy of the said agreement is attached hereto, and marked 'Exhibit A,' and incorporated in and made a part of this complaint for a more full and complete statement of the conditions therein.

'(5) That on the 25th of March, 1901, plaintiff herein, for the further purpose of carrying out said agreement and contract and under the direction of and at the request of the defendants herein, made and executed to the defendants, in the name of Harrison G. Foster, who was by the defendants nominated as representative of the said defendants herein, a bill of sale, wherein and whereby he conveyed to the said defendants, in the name of the said Harrison G. Foster, their trustee, and who was by the said defendants nominated and designated to accept and receive the said conveyance, the 51% interest in and to the said invention known as an 'electric air heating fan,' and for which the said patent had theretofore been applied for, and by the terms of which bill of sale the Commissioner of Patents at Washington, D. C., was authorized and directed to issue the said letters patent for the said electric air heating fan to the said Harrison G. Foster and to the said Clyde Landers, jointly, 51 per cent. thereof, and 49 per cent. thereof to the said Clyde Landers.All of which is more fully set forth in that certain bill of sale executed March 25, 1901, by the plaintiff herein to the said Harrison G. Foster, a copy of which is hereto attached, and marked 'Exhibit B,' and to which reference is hereby made, and incorporated and made a part of this...