Richards v. Allis

• Decision Date: 15 June 1892
• Parties: RICHARDS ET AL. v. ALLIS ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 509

52 N.W. 593

RICHARDS ET AL.

v.ALLIS ET AL.

Supreme Court of Wisconsin.

June 15, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by A. C. Richards, administrator, and others, against Margaret W. Allis and others, executors. Judgment for defendants. Plaintiffs appeal. Reversed.Miller, Noyes & Miller, for appellants.

Winkler, Flanders, Smith, Bottum & Vilas, for respondents.

ORTON, J.

This action is based upon a contract of the following import: The parties are A. C. Richards, as administrator of the estate of Charles M. Roberts, (deceased,) and in his own right, and others, who are interested in a patent right of an invention known as “an improvement on processes and machinery for the manufacture of flour,” secured to the said Roberts in his lifetime by letters patent dated the 10th day of July, 1877, as parties of the first part, and the plaintiffs herein, and Edward P. Allis, sole partner under the firm and style of E. P. Allis & Co., of the second part, said Allis being a manufacturer of machinery for milling purposes in the city of Milwaukee, and the defendant herein. The plaintiffs had sued Herr & Cissell, of the District of Columbia, for the use of machinery claimed to be an infringement of said patent, which machinery was sold to the defendants by the said Allis, who intervened to defend said suit. In consideration of the compromise of said suit, the said parties agreed as follows: The said plaintiffs were to release the defendant, and those to whom he had furnished said machinery, from all liability for infringement of said patent; and the defendant might sell said machinery in the United States for the remaining time of the patent; and the persons to whom it is sold shall pay the license fee therefor; and the plaintiffs shall thereupon furnish to such persons a license therefor; and the defendant is to collect from them the license fee therefor, and retain as his own one half thereof for collecting the same. The defendant is to recognize and never dispute or question the validity of said patent, or litigate it, or encourage others to do so; and to do his best to introduce said machinery into use, and encourage its use, by the millers of the United States. The defendant is to collect the license fee from those to whom he furnishes said machinery, retaining one half; and to render to the plaintiffs quarterly accounts from April 1, 1884, of the names and residences of persons to whom he furnishes said machinery, the capacity of their mills, etc.; and to furnish the plaintiffs the names and residences of persons to whom he had sold said machinery before January 1, 1884; and the plaintiffs shall give to such persons licenses to use the same. The license fee agreed on was to be, for six months, one dollar per barrel of flour, according to the capacity of the mills using said machinery. The complaint charges that the defendant has failed to render such statement on account of license fees collected, and denied having furnished to any mills such machinery, and, on information and belief, that the defendant has furnished various mills such machinery to the plaintiffs unknown, and has failed to account therefor. The plaintiffs demand an accounting of these transactions, and of the money received by the defendant, and of the mills furnished with said machinery, and the capacity thereof, and that the defendant pay over to the plaintiffs their share of the license moneys so collected by him. The defendant, by answer, denies that he has ever furnished to any one or made or used any machinery which is an infringement of said patent; and avers that he has not collected any license fees therefor; and has tried to induce millers to pay license fees, but has been unable to induce them to do so; and that said patent is worthless and void by reason of the processes thereby secured not being new, but long known and used by the public; and for that reason that he could not induce any one to pay a license fee therefor. These are, in substance, the pleadings and issues upon which the case was tried. The court found all these issues in favor of the defendants, and, as a conclusion of law, that the plaintiffs have no cause of action in equity, and have, if any, an...