Russell v. Lathrop
| Decision Date | 07 March 1877 |
| Citation | 122 Mass. 300 |
| Parties | Charles W. Russell v. Horace A. Lathrop |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Norfolk. Writ of Review of a judgment recovered by the defendant in review against the plaintiff in review on the following contract in writing, dated January 22, 1870, and signed by the plaintiff in review and James T. Frary:
"It is agreed between H. A. Lathrop of Sharon, and James T. Frary and Charles W. Russell of New York, that for services heretofore rendered by said Lathrop to said Frary and Russell, they shall procure from the Lamson & Goodnow Manufacturing Company for him a license to manufacture at his said Lathrop's works, in Sharon aforesaid, and not elsewhere, and sell three thousand dozens of cutlery, under the patent granted to Joseph W. Gardner in 1859, and assigned to the said company during the unexpired term of said patent which license the said Lathrop has applied to and requested the said Frary and Russell to procure for him from said company; and further that they will pay the royalty charged for said license by said company; and they also agree to pay said Lathrop three thousand dollars when and as soon as said company shall have obtained a decree or judgment establishing the validity of said patent; and said Lathrop agrees that he will use his best endeavors to aid in establishing the validity of said patent whenever he shall be called upon to do so by said Frary and Russell, or said company."
After the former decision, reported 119 Mass. 531, the case was tried in the Superior Court, before Allen J., who ordered a verdict for the plaintiff in review, and reported the case for the consideration of this court, so much of which, as is material to an understanding of the point decided, was as follows:
The execution and delivery of the agreement, and a demand of payment by Lathrop upon Russell before bringing the present suit, were proved. The defendant in review also introduced in evidence the records of three suits in equity brought by the Lamson & Goodnow Manufacturing Company, in the United States courts, in the city of New York, to restrain the use of the invention described in the letters patent referred to in said agreement. The suits were brought against J. Russell & Co., Landers, Frary & Co., and Clement, Hawks & Co., respectively, by bills in equity, each of which was dated April 17, 1867. The several defendants respectively filed answers therein, setting up, among other matters, that the letters patent were invalid; that the invention was not new. In May, 1870, the defendants in said suits respectively, filed their written consent that said bills might be taken pro confesso, evidence on both sides had been previously taken, and on June 9, 1870, an order was entered in each case, that the bills should be taken pro confesso; and no further decree, order or judgment was ever passed or entered in either of them.
Judgment on the verdict.
E. R. Hoar & A. Churchill, for the defendant in review.
C. Allen & R. C. Lincoln, for the plaintiff in review.
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