Pinney v. The First National Bank of Concordia

Decision Date06 January 1909
Docket Number13,363
Citation75 P. 119,68 Kan. 223
PartiesHENRY PINNEY v. THE FIRST NATIONAL BANK OF CONCORDIA
CourtKansas Supreme Court

Decided January, 1904.

Error from Cloud district court; HUGH ALEXANDER, judge. Opinion filed January 9, 1904. Reversed.

Judgement reversed and cause remanded

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT -- Certificate of Transcript. A certificate that a transcript of the record is full, true and correct is not impeached and overthrown by a statement in the record from which a mere inference may be drawn that something has been omitted from it, nor unless the record on its face affirmatively and satisfactorily shows that it is incomplete and incorrect.

2. CONTRACT -- Violation of Penal Statute. Where a statute expressly provides that a violation thereof shall be a misdemeanor, a contract made in direct violation of the same is illegal and there can be no recovery thereon although such statute does not in express terms prohibit the contract or pronounce it void.

3. PATENT-RIGHT -- Sale of Territory is Sale of Patent. A sale of the exclusive right to manufacture, use and sell for use a patented invention in a specified territory for a period of two years carries with it an interest in the patent-right itself, and constitutes a sale of a patent-right within the meaning of the "act relating to the registration and sale of patent-rights, and prescribing a penalty for the violation of the same."

4. PATENT-RIGHT -- Promissory Notes Made Void by Violation of Penal Statute. The taking of a promissory note, the consideration of which is the sale of a patent-right, or what is claimed by the vendor to be a patent-right, without inserting therein the words, "given for a patent-right," is, under our statute, a misdemeanor punishable by fine or imprisonment, and no recovery can be had thereon by one who violates the statute, or by a transferee of the note who has knowledge that the law was violated.

C. N. Peck, and F. W. Sturges, for plaintiff in error.

Park B. Pulsifer, and Dwight M. Smith, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

The First National Bank of Concordia brought an action against Henry Pinney to recover on two promissory notes, each for the sum of $ 144, payable to the order of W. S. James, and indorsed by him to the bank. In his answer Pinney set up three grounds of defense. The first was a general denial, and the second alleged:

"That he executed the notes; that he signed and delivered the same to the payee, W. S. James. He says, however, that the consideration thereof was the sale and transfer to him of a certain patent-right, to wit: The right to manufacture, use and sell for use in certain territory in this state, for the term of two years, to wit, in Shawnee county exclusively, and in other counties to wit, Jewell, Mitchell, Ottawa, Cloud, Clay, Republic and Washington, jointly with others, a certain window-lock or fastener known as the 'James window-lock,' for which the said W. S. James had obtained letters patent, No. 629,446, issued July 25, 1899. That said sale and transfer took place in this county and state, to wit, Cloud county, Kansas; that although the said James had filed with the clerk of the district court of this county a copy of said letters patent, and also filed with said clerk an affidavit stating that said letters were genuine and had not been revoked and that he had full authority to sell or barter the same, which affidavit also set forth his occupation and residence, and the residence of his so-called principal, the James Lock Company, the said James and the said James Lock Company being one and the same, however, yet the said James did not, nor did any one, insert in said notes, or either of them, the words "given for a patent-right," and the said notes were taken by the said James in violation of the law of this state, without consideration, and are illegal and void wheresoever and in whosoever hands they may be. And said defendant says that plaintiff did not purchase said notes in good faith for a valuable consideration in the usual course of trade, but purchased them well knowing at the time that they were given for a patent-right and all of the facts and circumstances under which they were given."

The third defense averred that there was an absence of novelty in the patent and hence a lack of validity.

The trial court, on motion of the bank, required Pinney to amend his answer and state whether the contract transferring the patent-right was oral or in writing, and, if in writing, to set out a copy of the same. In pursuance of this order the defendant filed a statement alleging that the sale was an oral transaction, but that a writing was executed for the purpose of making it appear that the sale was of something else than a patent-right. He averred, however, that it was a mere subterfuge to avoid the penalty of the statutes of the state; that the writing did not serve its purpose, as it appeared from the writing itself that the transaction was the sale and transfer of a patent-right. He alleged that the writing had been accidentally destroyed by fire, and that it was impossible for him to produce it, or a copy of the same.

A demurrer to the answer, on the ground that it did not state a defense, was sustained. Subsequently the court set aside its order and then sustained the demurrer, except as to the third count of the answer, and as to that defense the demurrer was overruled and time was given to reply. Later the defendant asked and obtained leave to withdraw the third count of the answer and the court then sustained a demurrer, holding that the remaining counts did not state a defense, and, the defendant electing to stand on the ruling of the court, judgment was given in favor of plaintiff.

Pinney comes here with a transcript of the record, alleging error, and the bank challenges the record and insists that the transcript is incomplete and therefore not open to our consideration. The certificate of the clerk attached to the transcript is in approved form and states that it is a full, true and correct transcript. It is said, however, that the record itself shows that it is incomplete in not including the demurrer to the answer which was filed after the withdrawal of the third count. Only one demurrer appears in the record, and that seems to have been filed on March 29, 1902, and was sustained on April 1 of that year. On September 25, 1902, the court appears to have considered a demurrer to the answer after the third count had been eliminated, but if a second demurrer was filed it has been omitted from the record. Some language in the record indicates that the sufficiency of the answer was tested by a second demurrer, and if it were satisfactorily shown on the face of the record that such a pleading was filed and not included in the record, it would impeach the certificate and we could not review the case. However, there is an entry in the record which seems to confirm the certificate and tends to show that but one demurrer was actually filed. After reciting the withdrawal of the third count on September 25, 1902, the journal entry proceeds to state that defendant "elects to stand on the order of this court of April 1, 1902, sustaining the demurrer to his answer," and the court thereupon rendered judgment on the notes. This would indicate that a second demurrer was not in fact filed, but that counsel and court adopted the first demurrer in testing the sufficiency of the answer after it had been amended by striking out the third count. We must, therefore, assume that the transcript is complete and examine the case on its merits.

Does the omission from the notes of the words "given for a patent-right" render them...

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