Oliver v. Autographic Register Co.

• Decision Date: 25 July 1939
• Citation: 7 A.2d 797,126 N.J.Eq. 18
• Parties: OLIVER v. AUTOGRAPHIC REGISTER CO.
• Court: New Jersey Court of Chancery

7 A.2d 797

126 N.J.Eq. 18

OLIVER

v. AUTOGRAPHIC REGISTER CO.

Court of Chancery of New Jersey.

July 25, 1939.

Syllabus by the Court.

1. A Master's findings will not be disturbed, even though there is a sharp conflict in the testimony, unless it clearly and satisfactorily appears that he erred in reaching them.

2. The burden of sustaining exceptions to a master's report is upon the exceptant.

3. Every part of the contract will be given effect, if possible, and general terms, where used, will yield and be limited to special terms set forth therein.

4. The expression in a contract of one or more things of a class implies the exclusion of all that are not expressed, although all would have been implied had none been expressed.

5. That construction is to be placed upon a contract which gives a reasonable, lawful and effective meaning to all of the manifestations of intention of the parties as gathered from the attending circumstances and the objects and purposes for the accomplishment of which the contract was designed and intended.

6. The rule relating to uncertainty of damages is directed merely against the uncertainty of there having been any damage, and not as to its amount.

7. Where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery.

8. The mere fact that the damages are not susceptible of accurate proof or calculation with exactness or precision will not preclude their recovery, where the evidence affords a reasonable basis for their computation.

9. The statute of limitations is unavailable as a defense unless it has been specially pleaded as such.

10. The words "at any time" as used In the contract under consideration held, under the evidence, to refer and be limited to the term or life of the patents to which they were intended to apply.

Suit for an accounting by Walter E. Oliver against the Autographic Register Company. A special master took testimony concerning amounts due complainant from defendant, and filed his report with respect thereto. On defendant's exceptions to the report.

Decree in accordance with opinion.

Isaacs & Gunther, of Union City, for complainant.

Wurts & Plympton, of Hackensack, and Milton, McNulty & Augelli, of Jersey City, for defendant.

LEWIS, Vice Chancellor.

By a decree of this Court, complainant was adjudged to be entitled to an accounting, as prayed for in his bill of complaint, and a reference to a special master of this Court was accordingly made. See case reported sub nom. Oliver v. Autographic Register Co., 118 N.J.Eq. 72, 177 A. 680. This decree and reference were, on appeal, subsequently affirmed by the Court of Errors and Appeals, 119 N.J.Eq. 481, 183 A. 171, and thereafter the special master, in accordance with that reference, took testimony concerning the amounts due complainant from defendant and filed his report with respect thereto. It is against the confirmation of this report that defendant has filed the exceptions, sixty-four in number, now urged by it.

It is to be observed that while the report of a master, with respect to matters to him referred for the purpose of taking testimony and reporting thereon, is but a recommendation, merely advisory to, and not conclusive upon, this court; nevertheless the conclusions therein expressed upon factual questions referred will not be disturbed, even though there is a sharp conflict in the testimony, Izard v. Bodine, 9 N.J.Eq. 309; Clark v. Condit, 21 N.J.Eq. 322; Van Ness v. Van Ness, 32 N.J.Eq. 669; Haulenbeck v. Cronkright, 23 N.J.Eq. 407, affirmed 25 N.J.Eq. 513; Wilson v. Sandall, 92 N.J.Eq. 130, 111 A. 322; affirmed, 92 N.J.Eq. 463, 113 A. 927; unless it clearly and satisfactorily appears that the master erred in reaching them, Sinnickson v. Bruere, 9 N.J.Eq. 659; People's Trust & Guaranty Co. of Hackensack v. Genden, 119 N.J.Eq. 249, 182 A. 25, affirmed 121 N.J.Eq. 54, 187 A. 35; Weiss v. Keystone Realty Co., 182 A. 478, 14 N.J.Misc. 65, affirmed 120 N.J.Eq. 113, 183 A. 901; the burden of showing which, however is upon the exceptant. National Bank of Metropolis v. Sprague, 23 N.J.Eq. 81; Fish v. Harrison, 87 N.J.Eq. 103, 100 A. 185, affirmed sub nom. Fish v. Harrison Milling Co. 89 N.J.Eq. 212, 103 A. 1052.

All of the exceptions here urged—other than those pertaining to matters already adjudicated by the determination of this Court reported in Oliver v. Autographic Register Co., 118 N.J.Eq. 72, 177 A. 680, affirmed 119 N.J.Eq. 481, 183 A. 171, and hence, none of which need now here be considered—may conveniently be grouped, and will be here dealt with, under two heads, viz.: (1) Those pertaining to the allowance of royalties under the contract of May 23, 1923, upon models other than numbers 6 and 7, and (2) those relating to the allowance of damages for issuing licenses in violation of the provisions of the contract of January 2, 1924.

In support of those of its exceptions which fall within the first of these groups, defendant contends that its liability for payment of royalties is, under the terms of the contract of May 23, 1923, expressly limited to royalties upon its sales of models numbers 6 and 7, exclusively, basing its contention upon the following provisions of the contract in question: "The Company (defendant) further agrees that it will pay to Oliver the following royalties each year, beginning January 1st, 1923, during the life of either of said patents or during the life of any patent to be granted on any of said applications; Fifty (.50¢) cents on each and every Shoupaligner Manifolder (Model No. 7) which it may sell each year up to two thousand (2000) and guaranteeing the payment of fifty cents (.50¢) on a minimum of one thousand mani folders to be sold each year. In the event that the total number of manifolders sold in each year shall be more than two thousand (2000), the royalty on each and every manifolder comprised in the excess over two thousand (2000) shall be twenty-five cents (.25). Seventy-five (.75) cents on each and every Shoupaligner Recorder (Model No. 6) which it may sell each year up to eleven hundred and fifty (1150) and guaranteeing the payment of seventy-five (.75) cents on a minimum of six hundred and sixty-six (666) recorders to be sold each year. In the event that the total number of such recorders sold each year shall be in excess of fifteen hundred, the royalty on each and every such recorder comprised in the excess over fifteen hundred, shall be fifty (.50) cents."

As against this, complainant vigorously insists that it is entitled to royalties not only upon models numbers 6 and 7, but also upon models numbers 8, 9 and 10; and this because, as it contends, the words model No. 7 and model No. 6, as employed in the contract, are merely descriptive and not restrictive of the types of manifolders and recorders upon the sales of which royalties are to be paid to him; as is indicated by the use of the parenthesis, as well as the provision of the contract that: "The payment of the aforesaid royalties shall, however, be due only on manifolders and recorders which embody any of the patented inventions of Oliver set forth in the said patents or applications set forth in the premises."

A careful consideration of the contract, however, as well as of its objects, purposes and the circumstances surrounding its making, precludes the adoption of either of the foregoing contentions.

The evidence clearly discloses that the primary objects and purposes which the contract was designed and intended to accomplish were to provide a means or method whereby complainant (1) would be ensured of a $5,000 annual income, inclusive of his $4,000 annual salary, and (2) would be incited and spurred on to greater efforts in developing and perfecting those new and useful improvements relating to autographic registers, manifolders and recorders of which he alone was the inventor, and all of which were described in the patent applications mentioned in said contract.

In view of complainant's fixed salary and the minimum royalties guaranteed him under the contract, the fulfillment of each of these objectives is readily accomplished by the allowance to him, in the one instance, of the specified royalties upon sales made by defendant of none other than manifolders and recorders, models 6 and 7, respectively, and, in the other instance, of the specified royalties on all "manifolders and recorders which embody any of the patented inventions of Oliver" alone, namely those described in any or all of the patent applications, Serial Nos. 442,633; 442,635; 443,371. and 506,291; specified in the contract of May 23rd, 1923.

On the one hand, to hold, as urged by defendant, that the second of the above cited contractual provisions restricts, rather than enlarges in the respects hereinabove indicated, the first of said provisions would, in view of its express limitation of royalties to manifolders and recorders embodying only the inventions of Oliver alone, even bar and preclude complainant from receiving any royalties upon even Models Nos. 6 and 7; since those embody the inventions of both complainant and Walter C. Shoup, jointly, and not those of complainant alone.

On the other hand, to hold, as urged by complainant, that the second of these contractual provisions so enlarges the first as to comprehend and entitle him to royalties upon any and all manifolders and recorders, irrespective of their model numbers, which are sold by defendant, provided only that they embody any of the inventions embraced in Models 6 and 7, would be to completely ignore and do violence to the plain language of that very provision itself, the applicability of which, by its very language, is limited to manifolders and recorders which embody the patented inventions of Oliver alone, and none others.

The untenability of complainant's contention for such a construction is further demonstrated by the fact that the contract significantly fails to make any mention...