National Hollow Brake Beam Co. v. Bakewell

• Decision Date: 14 December 1909
• Citation: 123 S.W. 561
• Parties: NATIONAL HOLLOW BRAKE BEAM CO. v. BAKEWELL et al.
• Court: Missouri Supreme Court

123 S.W. 561

NATIONAL HOLLOW BRAKE BEAM CO. v. BAKEWELL et al.

Supreme Court of Missouri, Division No. 2.

December 14, 1909.

1. PLEADING (§ 8) — REQUISITES OF PETITION — CONCLUSION.

While under the Code a petition is to be liberally construed in arriving at its meaning, it, as well as other pleadings, must state the facts on which the pleader expects to recover, and mere conclusions are not sufficient.

2. PARTIES (§ 20) — JOINDER OF PLAINTIFFS — ACTION FOR MISCONDUCT OF ATTORNEYS.

Where two complainants in a suit in a federal court were equally entitled to a decree obtained in their favor, and had an equal right to control and receive the benefits of any further step in the litigation, and there was no antagonism between them, and each had borne its full share of the costs, if their attorneys by their stipulation and conduct of the case had injured one of the complainants, the other suffered a like injury, and, the judgment having been joint and the injury joint, the cause of action against their attorneys was necessarily joint, and one of the complainants was not authorized to sue separately for relief.

3. ATTORNEY AND CLIENT (§ 112) — LIABILITY OF ATTORNEY TO CLIENT — WRONGFUL ACT OF ATTORNEY.

For a decree to recite a fact which plaintiff alleges to be true in a suit against attorneys for causing the decree to recite such fact was not a wrong to plaintiff.

4. PATENTS (§ 212) — SUIT FOR INFRINGEMENT — PARTY ENTITLED TO BENEFITS THEREOF.

Where a lessee of a patent sued for an infringement greatly to the damage of lessee and its business, joining lessor, as was authorized under the lease, and lessee carried the cost of the litigation, it would seem to be entitled to all the benefits.

5. PATENTS (§ 212) — SUIT FOR INFRINGEMENT — RIGHT TO JOIN THEREIN AND SHARE IN RECOVERY.

It cannot be held that an infringement of a patent was such as to give the lessor thereof under the terms of the lease the right to concur and join with lessee in a suit therefor and share equally in recoveries and benefits to accrue therefrom, where the infringement occurred when lessee was the exclusive licensee of the patent, and when it alone was injured thereby.

6. PLEADING (§ 214) — ADMISSIONS BY DEMURRER.

While a demurrer admits all allegations which are well pleaded, the legal conclusions which plaintiff would derive therefrom are denied.

7. ATTORNEY AND CLIENT (§ 129) — ACTION FOR WRONGFUL ACTS OF ATTORNEYS — PLEADING.

In an action on the case based on wrongful acts of attorneys in respect to litigation, there should be such a statement of the contents of an agreement, pleadings, and decrees relied on that the court may be able to construe them and determine whether conclusions drawn by plaintiff are correct or not.

8. ATTORNEY AND CLIENT (§ 129) — LIABILITY OF ATTORNEY TO CLIENT FOR WRONGFUL ACTS — NOMINAL OR SUBSTANTIAL DAMAGES.

In an action on the case by a client against attorneys for wrongful acts in respect to litigation, the petition must show that plaintiff suffered substantial, and not merely nominal, damages.

9. PATENTS (§ 286) — ASSIGNEE OR LICENSEE — RIGHT TO SUE FOR INFRINGEMENT.

From the nature of a patent right, which is purely statutory, and by Rev. St. U. S. 1878, § 4884 (U. S. Comp. St. 1901, p. 3381), is "a grant to the patentee, his heirs and assigns for a term of 17 years, of the exclusive right to make, use and vend the invention," a company having the exclusive right under a contract to make, use, and vend a patent brake beam was for all practical purposes the assignee thereof, and at all events was the exclusive licensee, and entitled to enjoin an infringement and to all the profits received by the infringer and to all accruing damages.

10. PATENTS (§ 1) — NATURE OF "PATENT."

A "patent" is a monopoly created by law, and gives the right to exclude all others from

making, using, and selling the invention or articles made in accordance therewith.

11. ATTORNEY AND CLIENT (§ 113) — ACTING FOR MORE THAN ONE PARTY IN SAME SUIT.

An attorney should devote his skill and diligence to his client's interest and he will not be permitted to act for the adverse party in the same suit, even though his motives are honest; but this rule does not prevent him from acting for two parties whose interests are not hostile or conflicting.

12. ATTORNEY AND CLIENT (§ 113) — ACTING FOR MORE THAN ONE PARTY IN SAME SUIT.

Attorneys for complainants in a suit for infringement of a patent were bound not only not to pursue a course ruinous to their client, the exclusive licensee of the patent, and the meritorious party to the proceeding, who had paid them for their services, and who had the beneficial cause of action, but they were bound to conserve such party's interest as far as possible within their power, and the other complainant, the owner of the legal title to the patent, a mere formal party, had no right to demand, after a final injunction against further infringement, that they should proceed on the claim for an accounting or damages, in opposition to the interest of their client, the licensee.

13. PATENTS (§ 212) — DUTY OF COMPANY GRANTING PATENT TO ANOTHER AND LEASING PLANT FOR MANUFACTURE AND SALE.

A company having leased to another company a patent owned by it and leased its plant for the manufacture and sale thereof, it was bound not to do any act rendering the lease and patent less beneficial to the other company.

14. LANDLORD AND TENANT (§ 45) — ENJOYMENT OF PREMISES.

A lessor must be held to have intended that the lease should be beneficial to the lessee, and, in so far as he is concerned, that he will do no act to interrupt the peaceable enjoyment of the thing granted.

15. ATTORNEY AND CLIENT (§ 129) — LIABILITY OF ATTORNEY — MISFEASANCE OR NEGLECT.

For misfeasance or unreasonable neglect of an attorney whereby his client suffers a loss, an action may be supported and damages recovered to the amount of the loss.

16. ATTORNEY AND CLIENT (§ 129) — ABANDONMENT OF CASE BY ATTORNEY — ACTION THEREFOR — WHAT PETITION MUST SHOW.

To entitle a complainant to recover against its attorneys for abandoning prosecution of a case after securing a final injunction against infringement of a patent, its petition against them must show that it had a right to pursue an accounting for itself, not only independent of, but against, the wishes of its co-complainant, and that, if it had pursued such an accounting, it would have recovered substantial damages or profits, or both.

17. PATENTS (§ 286) — SUIT FOR INFRINGEMENT — RIGHT OF PARTY TO CONTINUE PROSECUTION FOR DAMAGES.

A patentee who holds merely the naked legal title to a patent cannot sue in his own name for an infringement, where all the beneficial interest, the right to make, use, and vend the invention, has been conveyed to a third party, and it follows that such a patentee as a nominal party to a suit for infringement by a lessee granted an exclusive license to make, use, and vend its invention, could not proceed with a reference after injunction granted, and recover for profits and damages that had accrued to the lessee.

18. ATTORNEY AND CLIENT (§ 112) — ABANDONMENT OF SUIT — LIABILITY OF ATTORNEYS FOR NOT FORMALLY WITHDRAWING AS COUNSEL.

Failure of attorneys to formally withdraw their names as counsel for a nominal complainant before abandoning further prosecution of a suit for infringement of a patent after securing an injunction against further infringement was not a wrong to such complainant, where the only substantial damages that could have been recovered, had a reference proceeded, must have been awarded to the other complainant alone, whom they also represented.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by the National Hollow Brake Beam Company against Paul Bakewell and another. A demurrer to the petition was sustained, and plaintiff appeals. Affirmed.

Randolph Laughlin, for appellant. Lehmann & Lehmann and Everett W. Pattison, for respondents.

GANTT, P. J.

This is an appeal from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to a petition filed by the plaintiff in the circuit court of the city of St. Louis on December 19, 1904. The petition is in two counts. The suit, in substance, is an action on the case against the defendants as attorneys to hold them in damage for alleged misfeasance in the discharge of their duties.

The judgment sustaining the demurrer was entered January 25, 1907. Under our Code the petition is to be liberally construed in arriving at its meaning; but this court has uniformly held that the petition or other pleading must state the facts on which the pleader expects to recover. It will not suffice to plead conclusions of law or the conclusions of the pleader unsupported by the allegation of issuable facts. Applying this test, then, let us see what case the first count states. It appears that there were two corporations, the plaintiff and the Chicago Railway Equipment Company, which had jointly brought a suit in the federal court in St. Louis against the Interchangeable Brake Beam Company and obtained a joint decree on May 23, 1901, adjudging that a certain patent had been infringed by the defendant, the said Interchangeable Company, and that said company should be enjoined from further infringement, and the said complainants should recover of the defendant the profits which said Interchangeable Company had received or made or had accrued to it by said infringement, and that the said complainants recover the damages which they or either of them had sustained by reason of said infringement, and that said cause be referred to a master to take a report and account of the profits which said Interchangeable Company had made, and that on such accounting complainants should have the right to cause an examination of the officers of said Interchangeable Company. Now it is to be observed that it is not alleged that the said Interchangeable Company had received or...