Simmons, C. J.
1. The contract declared on in the plaintiff’s petition was one whereby the plaintiff was to design, construct, and obtain letters patent upon a machine which would automatically perform three separate and distinct things, to wit, print cloth in three or four colors, cut it into specified lengths, and fold it. If the machine designed was satisfactory to the defendant, it agreed to pay for the letters patent $2,500. The meaning of the contract is, in our opinion, that the plaintiff was to design, construct, and patent a machine combining the three elements specified, and that the defendant was to pay for the letters patent on such a machine. The plaintiff’s evidence shows that the machine was designed and constructed according to contract; that the stipulated compensation was paid for building it; but that plaintiff patented, not the entire machine or all of its elements, but only two of these elements, the patent being for “ An alleged new and useful improvement in Machine for Cutting, Folding, and Piling Cloth, Paper, or Other Fabrics.” The evidence also shows that the plaintiff did not even apply for a patent on the entire machine or combination. It is claimed by the plaintiff that it was impossible for it to patent the printing-machine, as such machine was old and no material part novel or patentable. This, in our opinion, does not relieve plaintiff of its’difficulty; for it contracted to obtain letters [790]*790patent upon a machine of which the device for printing was a part, and it can not recover upon the contract without showing a compliance with it. The patent obtained may be such as to protect the defendant, and do it just as well as the one which the defendant contracted for; but the defendant can still stand upon the contract and demand that it be complied with before it be forced to pay for the patent. It can legally decline to accept the letters patent as a compliance with the contract, because they do not cover the machine and are not what it contracted for. If plaintiff could not procure the patent on the portion of the machine which did the printing, this was its misfortune. It should not have made a contract to do so. Having made the contract, it can not enforce it without a compliance on its part. See Westervelt v. Fuller Mfg. Co., 13 Daly, 352. It will be seen that there was a fatal variance between the petition and the evidence as to the compliance of the plaintiff with the contract. The court, therefore, did not err in granting a nonsuit.
2. Under our view of the law of the case, if the rejected evidence had been admitted it could not have changed the result.
Judgment affirmed:
All the Justices concurring.
Free access — add to your briefcase to read the full text and ask questions with AI