Van Norman v. Barbeau

• Decision Date: 03 August 1893
• Citation: 55 N.W. 1112,54 Minn. 388
• Parties: VAN NORMAN v BARBEAU ET AL.
• Court: Minnesota Supreme Court

54 Minn. 388

55 N.W. 1112

VAN NORMANvBARBEAU ET AL.

Supreme Court of Minnesota.

Aug. 3, 1893.

(Syllabus by the Court.)

1. In order to sustain the defense of want of consideration in a contract for the sale of a patent right it is not enough that its practical utility be limited, or that the patented article cannot be manufactured and sold at a profit, if it be capable of use.

2. Where one of several sureties named in a bond neglects or refuses to sign the same, if all the others sign it with the principal obligor, and the same is unconditionally delivered to the obligee in their presence, and without objection on their part, they will be deemed to have waived the omission to procure the signature of the remaining surety.

Appeal from district court, Hennepin county; Canty, Judge.

Action on a contract by Minnie E. Van Norman against Charles F. Barbeau and others. Defendants had judgment, and from an order denying a new trial, plaintiff appeals. Reversed.

Babcock & Garrigues, for appellant.

Penney, Jamison & Hayne, for respondents.

VANDERBURGH, J.

The plaintiff and Luther C. Farmer and J. H. White, owners of letters patent for improvements in weighing scales, on the 9th day of March, 1891, entered into a certain license contract with the defendant Charles F. Barbeau, described in the complaint, in and by which he was granted the exclusive right to manufacture and sell the scales therein described, and all the improvements owned or controlled by the parties of the first part, and in consideration of which he agreed to pay certain royalties upon the number of machines mentioned during the life of the patent, and thereby agreed to pay a royalty of $1 each on at least 3,000 scales to be manufactured during the first year after the execution of the contract; and for the purpose of securing the performance of the agreement to pay such royalty for the first year Barbeau and the other defendants in this action executed their bond, also described in the complaint, and running to the plaintiff and Farmer and White, the parties of the first part in the contract first described. It appears that Farmer and White have adjusted their claim under the contract and bond with the defendants, and that the interest of the plaintiff in the royalty secured by the bond is one-fourth thereof, which this action is brought to recover.

The defenses set up in the answer are: First, (a defense in favor of all the defendants,) that the contract and bond are without consideration, on the ground that the patent and alleged improvements in question are of no utility, and that the scales manufactured thereunder were and are practically useless; and, second, in respect to the liability of the sureties in the bond, that one Joseph Barbeau, who was named therein as surety, and who as it was agreed and understood between the plaintiff and remaining sureties should sign the same, did not execute it or become a party thereto.

1. The rule applicable to a defense of want of consideration in a contract for a license to manufacture and sell articles under a patent right is thus stated in Wilson v. Hentges, 26 Minn. 290, 3 N. W. Rep. 338: “If the patent be valid, the right to sell the article is exclusive, and is, in law, a valuable right,...