Russell v. Lathrop

• Decision Date: 16 February 1876
• Citation: 119 Mass. 531
• Parties: Charles W. Russell v. Horace A. Lathrop
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 531

Charles W. Russell v. Horace A. Lathrop

Supreme Court of Massachusetts

February 16, 1876

[Syllabus Material] [Syllabus Material]

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 in the case, reported 117 Mass. 424, the case was tried in the Superior Court, before Dewey, J., who reported the case, for the consideration of this court, in substance 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 plaintiff 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 inequity, 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. The records of said suits may be referred to. Upon this evidence, the defendant in review contended that he was entitled to recover. The judge declined so to rule.

The defendant in review then offered parol evidence to prove that the decrees in one or all three of said suits in New York were the decree or decrees contemplated by the parties to this action, understood and intended by them to be the "decree" named in the contract upon the making or "obtaining" of which the $ 3000 would become payable. The defendant in review also offered to prove that before and at the time of the making the contract sued on, the said Russell declared to the said Lathrop that the decrees to be made in these three cases, or any one of them, was or were the decrees upon the making of which the requirement of the contract for a decree would be...