Manning v. Galland-Henning Pneumatic Malting Drum Mfg. Co.

• Decision Date: 11 January 1910
• Citation: 141 Wis. 199,124 N.W. 291
• Parties: MANNING v. GALLAND-HENNING PNEUMATIC MALTING DRUM MFG. CO.
• Court: Wisconsin Supreme Court

141 Wis. 199

124 N.W. 291

MANNING

v.GALLAND-HENNING PNEUMATIC MALTING DRUM MFG. CO.

Supreme Court of Wisconsin.

Jan. 11, 1910.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by John O. Manning against the Galland-Henning Pneumatic Malting Drum Manufacturing Company. From an order overruling a demurrer to the complaint, on the ground of misjoinder of actions, defendant appeals. Affirmed.

Appeal by defendant from order overruling demurrer to the complaint on the ground of misjoinder of actions. The complaint in one count alleges, in substance, the following: That in and prior to 1891 the defendant was the owner of letters patent covering a certain drum system of pneumatic malting and the machinery and process thereof, known as the “Galland-Henning patent drum system”; that on March 7, 1891, for a present money consideration, said defendant granted, through certain assignors, to a New York corporation the sole, exclusive, absolute, and entire right, free from any claim for royalty or other charge or incumbrance, to use, manufacture and vend, within the state of New York and other named states, and to grant such rights to others in said states, the machinery and processes covered by said patent for the life of said patent or any renewal thereof, the defendant being in the business of manufacturing apparatus under said patent for sale in other territory; that said licensee corporation, called the Buffalo Company, in 1895 passed into the hands of a receiver in dissolution proceedings, and that in November, 1898, a further agreement in writing was made by defendant with said receiver, Osterhout, to the effect that the defendant should and would proceed to the prosecution of suits against all infringers of said patent rights at its own cost and expense, and would pay over to said Osterhout all proceeds of such prosecutions less the costs and expenses thereof, also providing that pending such litigation the defendant might sell the patented articles within the assigned territory, but should pay to said receiver a royalty of 12 1/2 per cent. of the sale price. It is alleged that said receiver on or about October 21, 1903, transferred to this plaintiff all his rights and rights of action under either and both of said contracts, which transfer was intended to and did terminate the rights of defendant under said contract of November, 1898, and the plaintiff is now the sole owner of all licenses, patent rights, claims, and causes of action, and of all rights, claims, and demands which at any time had accrued to said Buffalo Company or said receiver; that defendant did prosecute infringers and did collect large sums of money for which it is accountable under said agreement of 1898, the amount thereof unknown to plaintiff. Further, that defendant subsequent to the license agreement of 1891, and both prior and subsequent to the making of the contract of 1898, sold the patented devices and improvements in the assigned territory to numerous parties, some of whom are named, and others asserted to be unknown to the plaintiff, and that since the transfer from the receiver to the plaintiff the defendant has continued to so sell; that defendant has failed to pay the plaintiff or any one else the agreed royalty upon the sales made during the continuance of the contract of November 30, 1898, or the proceeds of the infringement prosecutions, notwithstanding due demand for such accounting and payment; and that the defendant threatens to continue to act under the agreement of November 30, 1898, by undertaking prosecutions and by selling patented articles in the transferred territory, for which plaintiff has no adequate remedy, and prays relief, first, that defendant account for all moneys collected in prosecution of infringements; second, for all sales made in the territory since the contract of November 30, 1898, “in order to determine the royalty thereon at 12 1/2 per cent.”; and, third, that the defendant account for all drums sold within said territory since the making of the contract of March 7, 1891, and prior to the making of the contract of November 30, 1898, and after the termination of the contract of November 30, 1898, “for the purpose of determining the damages sustained by this plaintiff by reason of the sale of said drums,” and also that, after the ascertainment of said sums, the plaintiff have judgment therefor, and such further relief as may be just and equitable.Ryan, Ogden & Bottum, for appellant.

Miller, Mack & Fairchild and W. F. Adams, for respondent.

DODGE, J. (after stating the facts as above).

The complaint concededly declares a cause of action to recover the amounts agreed to be paid upon the contract of 1898 both for royalties upon sales made by the defendant during the term of that contract and for moneys collected from other infringers of plaintiff's territory. It is not contended that these two grounds of recovery, if they constitute separate causes of action, are not properly joinable, since they are indebtedness promised to be paid by the same contract. Reindl v. Heath, 109 Wis. 570, 85 N. W. 495. There is joined in the complaint also a claim to recover the damages to the plaintiff resulting from defendant's alleged conduct in selling machinery covered by the patent in the exclusive territory assigned to plaintiff during periods outside of the term of the contract of 1898. While this as a plain action at law would seem to be a separate and distinct cause of action, although not stated as such in the complaint, it is claimed by respondent not to be such, but merely a claim for additional relief upon the single primary cause of action for an accounting by the defendant as to its conduct and the results thereof. Passing this controversy, however, and assuming for the purpose of the argument that it is distinct and separate, the proposition to be considered is whether it is one which can...