Dalzell v. Fahys Watch Case Co.

28 Jones & S. 293, 60 N.Y. Sup. Ct. 293

• Court: The Superior Court of New York City
• Decided: January 11, 1892
• Status: Published

Opinion

“Sedgwick, Ch. J.

The demurrer should be sustained on the following grounds:

“ The complaint does not show the performance of the agreement on plaintiff’s part, which was to be the consideration of the obligations of defendants on which the action was brought. It is as follows : ‘ The said Allan C. Dalzell hereby agrees to assign, etc., all the right, title and interest in all inventions and Letters Patent, etc., in consideration of which the said Fahys Watch Case Company hereby agrees, etc., etc.’ There is no allegation of any assignment of inventions.

“ The condition of the obligation to assign was to he a request in writing to Dalzell so to assign said Letters Patent. Upon such request being made as to Letters Patent, Dalzell was to assign inventions as well as patents.

“ The complaint does not sufficiently allege that the letters patent and inventions which the plaintiff had procured or made at the time of the alleged assignment were assigned. The averment of being the ‘ same Letters Patent mentioned in the contract ’ may he descriptive of the letters patent said to have been assigned, but does not express or imply that such letters were all that the plaintiff had procured at the time of the supposed assignment.

“ The averments as to assignments by plaintiff are not sufficient. They are that ‘ on, etc., plaintiff did duly assign, etc., unto defendant or for its use and at its request the letters patent aforesaid.’ The legal effect of a written instrument or of a verbal transfer may be sufficient without setting forth the words of the assignment or transfer. On the face of the complaint such legal effects are not averred, for it is stated to be to the defendant, or if not to him, then to his use. The branches of the alternative are not identical. Assuming that the transfer was to the use of defendant, even if requested, that is not by the contract set forth the assignment that was to be made. The statement that it was under and by virtue of said annexed contract ’ is contradicted by the face of that contract, unless facts are supposed which are not set forth, which would make a transfer to use a compliance with the terms of the contract. Otherwise there would be an expression of opinion by the complaint as to the transfer for the use being made under and by virtue of the contract.

Wilber & Oldham, attorneys and of counsel, for appellant. Wetmore & Jenner, attorneys, and William A Jenner of counsel, for respondent.

“ The general allegations of the performance of conditions precedent are not to be deemed to embrace matter as to which the plaintiff has specifically pleaded, even if the payments of consideration and the transfer are conditions precedent within the meaning of § 533 of the Code.

“ Judgment for defendant that demurrer be sustained, .with leave to amend on payment of costs of demurrer.”

Per Curiam.

The judgment .should be affirmed, with costs, upon the opinion rendered by the learned chief judge at special term, with leave, however, to the plaintiff to amend upon payment of costs.