Wilch v. Phelps

• Decision Date: 22 March 1883
• Citation: 14 Neb. 134,15 N.W. 361
• Parties: WILCH v. PHELPS.
• Court: Nebraska Supreme Court

14 Neb. 134

15 N.W. 361

WILCH

v.PHELPS.

Supreme Court of Nebraska.

Filed March 22, 1883.

Error from Colfax county.

N. H. Bell and J. H. Brown, for plaintiff.

Phelps & Thomas, for defendants.

LAKE, C. J.

The action in the court below was brought to foreclose a mortgage executed to secure the payment of a promissory note given in the purchase of a patent-right; “that is to say, an exclusive right to use in said Colfax county a brick-machine of a certain make or patent, known as Kennedy's patent brick-machine, claimed by the plaintiff to be patented.”

The petition is in the common form, and states a good cause of action. The question to be decided was raised by the demurrer of the first count of the answer. This count, after stating the consideration of the note as above given, avers, substantially, “that prior to the time of said transaction, and the execution of said note,” the plaintiff had not, in any particular, complied with the requirements of section 2, c. 66, Comp. St. p. 3711. This section provides particularly what steps must be taken by the vendor of a patent-right in order to make a valid sale. It requires that every person “desiring or intending to sell or barter any patent-right, or any right, which such person shall claim to be a patent-right, * * * before offering to sell or barter the same in any county within this state,” to submit “the letters patent, or a duly-authenticated copy thereof, and his authority to sell or barter the right so patented,” to the county judge of such county for his examination. Also to make affidavit before such judge, “stating the name, age, place of residence, and former occupation of the applicant,” etc., “and if such judge be satisfied that the right so entitled to be sold or bartered has been duly patented, and that the letters patent have not expired, or been revoked, or annulled,” etc., then the judge shall record “such affidavit, the date of such letters patent, to whom the same were issued, and the designation or name of such patent-right given therein, with the number thereof, in a book to be kept in his office,” etc.

Section 1 of this chapter makes it “unlawful for any person to sell or barter in any county within this state any patent-right, or any right claimed by such person to be a patent-right,” without having first complied with the requirements of section 2. Section 4 provides that “any person who may take any note or other obligation in writing, for which any patent-right shall form the whole or any part of the consideration, shall, at the time of the taking thereof, insert therein in the body of the instrument, and above the signature thereof, in prominent and legible writing or print, the words, ‘Given for a patent-right,’ and all such obligations or promises, if transferred, shall be subject to all defenses as if owned by the original promisee.” And section 5 declares that “any person who shall sell or barter, or offer to sell or barter, within this state, or who shall take any note, or other obligation or promise in writing, for which any patent-right shall form the whole or any part of the consideration, without complying with the requirements of this act, * * * shall be deemed guilty of a criminal offense, and on conviction * * * shall pay a fine of not more than $500, or be imprisoned in the jail of the proper county not more than six months, or both, at the discretion of the court,” etc.

On the part of the plaintiff it is claimed, in support of his demurrer, that the statute in question is in conflict with the constitution and laws of the United States, and therefore his non-compliance with its requirements is of no consequence, and cannot bar a recovery on the contract of purchase. Numerous authorities are cited in support of this position, and we think it is well taken.

The eighth clause of section 8, art. 1, of the constitution of the United States gives to congress sole authority “to promote the progress of science and useful arts by securing, for limited times, to authors and inventors,...