Squires v. Wason Mfg. Co.

• Citation: 65 N.E. 32,182 Mass. 137
• Parties: SQUIRES v. WASON MFG. CO.
• Decision Date: 29 October 1902
• Court: United States State Supreme Judicial Court of Massachusetts

182 Mass. 137

65 N.E. 32

SQUIRES v. WASON MFG. CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 29, 1902

COUNSEL

Elva

H. Young, for plaintiff.

J. B Carroll and W. H. McClintock, for defendant.

OPINION

HOLMES C.J.

This is an action for an alleged malicious libel on the plaintiff's title under patents for an electric switch by reason of which certain persons who were in treaty with him for a purchase of an interest in it withdrew and refused to deal with him further. The facts necessary to be stated are few. The plaintiff having a patent, earlier than those referred to, for a switch operating mechanism, had granted to the defendant an exclusive license to make, use and sell the mechanism throughout the United States, and covenanted, in case he devised 'further improvements in Switch Operating Mechanism for Railway Cars,' to disclose the same to the defendant, and on its request to grant a like exclusive license to make, use and sell the same, without further consideration, except such sum 'as shall be necessarily expended for patenting such further improvements in Switch Operating Mechanisms in the United States.' The parties who were bargaining with the plaintiff caused a letter to be written to the defendant by the super-intendent of an electric railway, stating that a device had been placed on one of the railway's switches 'with a view of selling, provided it proves satisfactory,' and that the defendant was said to be interested 'in the device which is patented by a Mr. Squires of Springfield,' and asking for an answer. The defendant replied: 'The Wason Mfg. Co. own the right to the manufacture and sale of the Squires' Electric Switch. We shall be pleased to consider an offer for the sale of said right.' This is the libel complained of. At the close of the evidence the judge directed a verdict for the defendant and the plaintiff excepted.

We assume for purposes of decision that the defendant understood itself to be writing about the switch mentioned in the declaration, a different switch from that covered by its express license, although whether it did so or was bound to do so perhaps may be doubted. Also we assume that the defendant might be answerable for the communication of the letter to the possible purchasers, by the railway superintendent to whom it was addressed, within the principle of Elmer v. Fessenden, 151 Mass. 359, 362, 363, 24 N.E. 208, 5 L. R. A. 724.

We have stated the plaintiff's special damage as it appears on the evidence. Swan v. Tappan, 5 Cush. 104; Lowe v. Harewood, W. Jones, 196. It will be seen to consist in the withdrawal of an offer, or breaking off of negotiations that might never have ended in a sale even if the letter had not been written. No doubt the plaintiff would not be prevented from recovering merely by the fact that the third persons were not bound to the plaintiff and that therefore the act induced by the defendant was lawful. Moran v. Dunphy, 177 Mass. 485, 487, 59 N.E. 125, 52 L. R. A. 115, 83 Am. St. Rep. 289. But it might be questioned perhaps, whether the plaintiff must not go so far as at least to make it reasonably probable that but for the defendant's conduct a sale or contract would have been made. See Dicks v. Brooks, 15 Ch. Div. 22, 40. Nevertheless we assume that the jury would have been warranted in inferring facts sufficient to satisfy the law, whatever it may be. But upon all these assumptions we think it plain that the ruling of the court below was right.

We do not propose to determine the validity of the defendant's claim. It is enough to say that it was a reasonable one and one which the defendant had a right to try if it saw fit, and therefore was privileged to assert. Wren v. Weild, L. R. 4 Q. B. 730; Steward v. Young, L. R. 5 C. P. 122; Halsey v. Brotherhood, 19 Ch. Div. 386; Gassett v. Gilbert, 6 Gray, 94, 97. It is true that the license refers to 'the Switch Operating Mechanism for Railways described' &c., and that the covenant refers to 'further improvements in Switch Operating Mechanism for Railway Cars,' using capitals, which might give some color to the contention that the latter words were used as a proper name to describe the former invention and that therefore the improvements were improvements only in that. But the words are not a proper name and are not preceded by the definite article as they had been before, and in the same paragraph, later, the word 'Mechanisms' is used, in the plural, thus giving additional strength to the argument that the improvements meant were improvements in switch operating mechanisms generally. The plaintiff seems to have assumed this to be the meaning until he broke with the defendant. If the covenant had the meaning last supposed, we perceive no objection to it in point of law, on grounds of public policy, as being too broad or smacking too strongly of slavery. It was no broader than was necessary to guard against the chance of the first invention being made useless and unmerchantable by a later one. Manufacturing Co. v. Gill (C. C.) 32 F. 697, 700. This consideration is a further ground in favor of the plaintiff's claim.

It is said that in any event the defendant did not own the right which it asserted. For purposes of decision, we assume that the defendant had not done enough to be entitled to the present execution of a further instrument applying to the present patent, or to bring into play the principle now governing anticipatory assignments. Smith v. Edwards, 156 Mass. 221, 222, 30 N.E. 1017. Therefore we assume not only that it did not own the patent, but that it did not own in...