Leschen v. Brazelle

• Decision Date: 05 March 1912
• Citation: 164 Mo. App. 415,144 S.W. 893
• Parties: LESCHEN v. BRAZELLE.
• Court: Missouri Court of Appeals

144 S.W. 893

164 Mo. A. 415

LESCHEN v. BRAZELLE.

St. Louis Court of Appeals. Missouri.

March 5, 1912.

1. EVIDENCE (§ 174)—BEST AND SECONDARY EVIDENCE—CARBON COPY.

A carbon copy of document made at the same time and by the same impressions which produced the original may be received in evidence in any case or on any question in which the original writing is competent.

2. WITNESSES (§ 204)—ATTORNEY AND CLIENT—PRIVILEGE OF ATTORNEY.

Where a carbon copy of an application for a patent is in the hands of the inventor's attorney, it is privileged, and the attorney cannot be compelled to produce it.

3. WITNESSES (§ 204)—BOOKS AND PAPERS —DUTY TO PRODUCE.

In a suit for specific performance of a contract to convey a half interest in a patent, plaintiff applied for an order requiring defendant, the patentee, to produce an application for the patent, which had been filed in the Patent Office, containing a full description of the invention. This defendant declined to do because the copy was in the possession of his attorney and not in his own possession, and objected to the attorney's producing it because privileged. The attorney laid no claim to the paper, nor objected to producing it on his own account, but was willing to furnish the copy to his client on his request. Held, that it was not material that the attorney owned the paper on which the copy of the application was written, and, the copy not being privileged in the hands of defendant, it could not be made privileged by defendant's placing it in the possession of his counsel, and hence an order requiring defendant to recall the copy from his counsel and produce the same was proper.

Error to St. Louis Circuit Court; Hugo Muench, Judge.

Suit by Henry Leschen against Benjamin Brazelle. From a judgment requiring defendant to call back from his counsel a copy of an application for a patent and produce the same at the trial, he brings error. Affirmed.

Julian Laughlin and A. R. Russell, for plaintiff in error. Jones, Jones, Hocker & Davis, for defendant in error.

NORTONI, J.

This is a suit in equity for the specific performance of a contract and injunctive relief. It appears defendant is an inventor, and in 1907 plaintiff entered into a contract with him touching a new style internal combustion engine, the invention and patenting of which defendant then had in mind. By the terms of the contract plaintiff was to furnish defendant certain financial aid toward perfecting and patenting the invention, and for this consideration defendant agreed to assign plaintiff one-half interest therein when completed. The suit declares upon this contract and prays that defendant be required to specifically perform it by investing plaintiff with one-half interest in two certain patents upon the engine and improvement thereon, Nos. 520,084 and 572,235, and for an injunction restraining defendant from assigning an interest therein to another. By his answer defendant admits the arrangement with plaintiff in the first instance, but avers that plaintiff subsequently voluntarily withdrew therefrom and refused to furnish the financial aid agreed upon. It is averred, too, therein that after plaintiff withdrew from the enterprise defendant perfected an internal combustion engine, which was salable, and applied for a patent thereon; that this engine is a success; but that plaintiff is wholly without interest therein for the reason he had long since abandoned his undertaking and refused to furnish the financial aid essential to complete the task in accordance with his agreement. But plaintiff insists that the engine finally perfected as a salable one, and known in the record as "engine No. 3," is in its fundamental principle identical in all respects with the original for the development of which he furnished the means, and therefore he is entitled to an interest therein. On the issue thus made, it became material and was important to investigate and ascertain the truth with respect to the fundamental principle of the several engines mentioned. It appears that on engine known in the record as No. 3, which was finally perfected by defendant as a salable one, a patent had been allowed under the act of Congress, but for some reason not yet issued. Defendant produced a copy of the application No. 520,084 for the patent on engines known as Nos. 1 and 2 in the record. To the end of showing the identity of the several engines, plaintiff sought to have defendant produce the application for patent No. 572,235 containing a full description of the perfected engine known as No. 3...