Smith v. Ayrault
| Decision Date | 12 October 1888 |
| Citation | 39 N.W. 724,71 Mich. 475 |
| Court | Michigan Supreme Court |
| Parties | SMITH ET AL. v. AYRAULT. |
Error to circuit court, Bay county; S. M. GREEN, Judge.
Assumpsit by George P. Smith and Henry B. Smith, for themselves and for the use and benefit of Eugene H. Smith against Miles Ayrault, to enforce contribution. Judgment was entered on a verdict for plaintiffs, and defendant appealed.
This action was brought in assumpsit in the circuit court for the county of Bay, by the plaintiffs, to recover contribution from the defendant.
The cause was tried by jury, and the plaintiffs recovered a verdict and judgment for the sum of $2,360.54. The defendant brings error.
The facts appearing from the record, and undisputed, are substantially that prior to June, 1876, Miles Ayrault, the defendant, and George P. Smith, Eugene H. Smith, Henry B Smith, and Warren Ayrault, resided in the state of New York. Miles Ayrault and Warren Ayrault are brothers. George, Eugene, and Henry B. Smith are brothers. George, Henry, and Eugene Smith were lumbermen, and prior to that time had no experience in the manufacture and sale of Wyckoff water and gas pipe. The defendant had had experience in that line of business. On June 2, 1876, the parties above named executed a written agreement for the manufacture and sale of Wyckoff patent water and gas pipe; the firm name being Ayrault, Smith & Co. By the terms of this copartnership agreement Miles Ayrault was to have a half interest in the business, the Smiths were to have two-sixths, and Warren Ayrault was to have one-sixth. Under the said articles the copartnership was to continue one year, and the firm at once commenced work under this agreement. On the 28th day of September, 1877, a new written copartnership agreement was entered into for the purpose of carrying on business under the same name. The parties to this agreement were the defendant, Miles Ayrault, George P. Smith, Henry B. Smith, and Warren Ayrault. Under these articles Miles Ayrault was a half owner and had a half interest in the business. George P. Smith, Henry B. Smith, and Warren Ayrault each had a one-sixth interest in the property and business. The business of Ayrault, Smith & Co. was carried on under the last articles until January, 1880, when the firm was dissolved, and that spring its business was wound up and settled. In that settlement no mention was made by either of the parties to the claim of the Hobbies, hereinafter referred to, on account of infringement of the patent.
The plaintiffs in this case made proof on the trial that Ayrault, Smith & Co. had the right to manufacture this water and gas pipe at Bay City, and had a license to sell in the states of Ohio, Indiana, Illinois, Missouri, Iowa, Minnesota, Wisconsin, and Michigan. This right was shown by successive assignments, which were put in evidence. Isaac S. Hobbie and John A. Hobbie succeeded to the right of the patentee for the manufacture and sale under this patent in the states of Maine, New Hampshire, Vermont, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, District of Columbia, Virginia, and West Virginia. The firm of Ayrault, Smith & Co., after the signing of the second articles of copartnership, continued the manufacture of water and gas pipe. They also commenced to manufacture an article known as steam-pipe casing. This was a new article of commerce, the manufacture of which was commenced in the spring of 1878 or winter of 1877 and 1878. They manufactured some of this steam-pipe casing, and sold some of it within the territory reserved to the Hobbies under the Wyckoff patent. All the sales in the territory of the Hobbies was this steam-pipe casing, all manufactured at Bay City, and all sold by correspondence, except one lot. On account of such sales, Isaac S. Hobbie and John A. Hobbie brought suit in the United States circuit court for the Northern district of New York against Henry B. Smith, George P. Smith, Eugene Smith, Miles Ayrault, and Warren Ayrault. Personal service was had upon Eugene Smith, and there was an appearance and answer in the case on behalf of the three Smiths. No service was had upon Miles Ayrault and Warren Ayrault, although Warren Ayrault was a resident of the same town with Isaac Hobbie, one of the plaintiffs. Isaac Hobbie is a brother-in-law, and John A. Hobbie is a nephew, of the defendant. This suit was contested, and resulted in a judgment against Henry B. Smith, George P. Smith, and Eugene Smith, which judgment was paid by Henry B. Smith and George P. Smith.
The testimony shows that Eugene Smith had a one-third interest in the property and profits of the interest of Henry B. Smith and George P. Smith in the firm of Ayrault, Smith & Co. This was an arrangement by themselves. Having paid this judgment, the plaintiffs brought suit in this cause, and recovered the sum of $2,360.54; being the one-half of the amount so paid by them on said judgment. The contention of defendant's counsel is that the judgment in the United States circuit court for the Northern district of New York has no tendency to establish any liability of Miles Ayrault, defendant, to the plaintiffs in this case, for the reasons that it is incumbent upon the plaintiffs in this suit to show, by proofs outside of the record in that case, that defendant Ayrault is liable for the acts for which the Messrs. Hobbie recovered; that defendant Ayrault was not served with process, or summoned to appear as a defendant in the case, and did not appear therein; that he is not in any way bound by the judgment of that court, and his liability to the plaintiffs cannot be established by the judgment thereof. Certified copies of the record of the proceedings had in the case in the United States circuit court for the Northern district of New York were offered by plaintiffs, and received in evidence, from which it appears that the process issued in that cause was served upon Eugene Smith alone; that George P. Smith and Henry B. Smith subsequently appeared in the cause; and all three of the Smiths defended the action. The two Ayraults were made parties defendants, but no service of process was had upon them, and they did not appear in the cause.
Upon that trial the circuit court of the United States found: (1) That the letters patent of the United States granted to Arcolous Wyckoff, dated November 22, 1864, numbered 45,201, for an improvement in pipe for gas, water, etc., on which this suit is brought, are good and valid in law. (2) That from the 31st day of May, A. D. 1876, to the expiration of said letters patent, on November 22, 1881, the plaintiffs in this cause were vested with the title of, in, and to the said letters patent, within and for the states of Maine, New Hampshire, Vermont, Rhode Island, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, District of Columbia, Virginia, and West Virginia, pursuant to a grant from said Arcolous Wyckoff, dated July 31, 1874, recorded in the patent-office, August 29, 1874,-the interest of Miles Ayrault under such grant having been assigned to the plaintiffs by a transfer in writing dated May 31, 1876. (3) That the defendants have infringed upon said letters patent, and upon the exclusive rights of the plaintiffs under the same, by selling within the above-specified territory, while the said letters patent for such territory were so as aforesaid held and owned by said plaintiff, pipe manufactured in accordance with the specification and claims of said letters patent, and embodying the invention thereby secured to said Wyckoff and his said grantees, in violation of the provisions of said letters patent, and without the license of said plaintiffs. (4) That plaintiffs' damages for such infringement were and are the sum of $3,825. This sum was afterwards increased by $300 for damages, and the interest and costs, taxed at the sum of $225.64,-making a total of judgment against defendants, for damages and costs, of $4,374.85; which was paid in full by George P. and Henry B. Smith.
Plaintiffs in this cause also offered in evidence the several patents under which the Messrs. Hobbie claimed to recover in the suit in the United States court, and the various assignments thereof from Arcolous Wyckoff to the Hobbies. Plaintiffs also gave testimony in the present case showing that sales were made by Ayrault, Smith & Co. during the continuance of their partnership, under their second articles, of this patent pipe-casing, within the territory in which the Hobbies had the exclusive right to sell under the Wyckoff patent. It also appears in the present case that after the commencement of the suit in the United States circuit court for the Northern district of New York against Eugene H. Smith, George P. Smith, Henry B. Smith, Warren Ayrault, and Miles Ayrault, by Isaac S. Hobbie and John A Hobbie, by service of process upon Eugene H. Smith, and the appearance in the cause by George P. Smith and Henry B. Smith, that these plaintiffs requested Miles Ayrault, defendant in this suit, to appear in the suit in the circuit court of the United States for the Northern district of New York, and to join with them in making defense to the plaintiffs' action; giving him full notice of the claim made by the Hobbies in that suit, and urged upon him the necessity of a defense. The defendant utterly declined to appear in the cause, or to assist in any way in its defense. After the cause was at issue in the United States court, it appears that the testimony of the defendant Miles Ayrault was taken in that cause; and he testified to sales made of this steam-pipe casing by Ayrault, Smith & Co. within the state of New York, and other states covered by the Wyckoff patent, in which the Hobbies had the exclusive...
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