Rubsam Corp. v. General Motors Corp.

279 N.W. 96, 281 Mich. 716, 1937 Mich. LEXIS 955

• Court: Michigan Supreme Court
• Decided: November 10, 1937
• Docket: Docket No. 41, Calendar No. 39,357.
• Status: Published

Opinion

(On Motion por Behearing.)

Per Curiam.

Our attention has been directed, on application for rehearing, to an error in our original opinion reported ante, 691, in that we did not determine whether defendant had used plaintiff’s inventions therein designated as the “second,” “third” and “fourth” patents, numbered and dated as follows: 1,576,225 — March 9, 1926; 1,576,226— issued the same day, and 1,622,846- — March 29, 1927.

Be-examination of the findings, upon which judgment was entered below for defendant, shows that the circuit judge did not determine whether defendant ever used plaintiff’s “second,” “third” and “fourth” patents.

The above question was covered in appellant’s statement of “reasons and grounds for appeal” and in its ‘ ‘ statement of questions involved. ’ ’ See Court Bules Nos. 66, § 3, and 67, § 1 (1933).

Our original opinion of November 10, 1937, should have included consideration of this matter and must be modified to provide that the judgment for defendant be affirmed only as to Patent No. 1, and that the cause be remanded to the circuit court for determination of the claimed use of the second, third and fourth patents.

Plaintiff having prevailed upon its application for rehearing, the original order as to costs must be vacated as plaintiff should recover costs.

It is ordered that the judgment below be affirmed in part and reversed in part, with a new trial as to patents 2, 3 and 4, and costs to appellant in both courts.