Sanborn v. Rodgers

33 F. 851, 1888 U.S. App. LEXIS 2197

• Court: U.S. Circuit Court for the District of Western Michigan
• Decided: February 21, 1888
• Status: Published

Opinion

Severens, J.,

(after stating the facts as above.) The facts fairly and sufficiently stated in the declaration are, for tho present purpose, to be taken as admitted. This being so, the court holds and rules as follows:

1. The power of attorney set out in the declaration, if standing alone, would be revocable.

2. But, being contemporaneous with an agreement relating to the same subject between the same parties, it must be taken as part thereof, and, when accepted, or anything had been done by tho plaintiff toward the execution of the contract, with defendant’s knowledge, the power was not revocable, at least in respect to those cases in which the plaintiff had rendered service. Whether it was revocable at all, in view of the allegation that the defendant stipulated that the plaintiff’s service should be exclusive of any interference in that territory, it is not necessary to determine. Perhaps the contract and the power were alike irrevocable from their date if the plaintiff at that time gave notice to the defendant of his acceptance of the offer or promise. Probably the latter is correct.

3. It was necessary that the plaintiff should, within a reasonable time, either have expressly notified the defendant of his acceptance, or have entered upon the performance of the undertaking and given notice thereof to the defendant. The contract alleged in the declaration is wholly unilateral, and continued so until acceptance, either expressed, or implied from entering upon the service with the knowledge of the defendant. The declaration is faulty in this particular.

4. It is alleged that the defendant assigned his patent and “all interests acquired thereunder” to another without the consent of this plaintiff, and without providing for payment of plaintiff. The court is inclined to hold that this disabled the defendant from doing those things in respect of his contract with the plaintiff,—if the contract was closed by acceptance, —which are fairly implied from the contract, and put such obstruction in the way of its execution, as to justify the plaintiff in treating it as repudiated by the wrongful act of the defendant. But as the demurrer is sustained on other grounds, no definite opinion is now declared.

5. In respect to the objection that the alleged contract was within the statute of frauds, and so should have been alleged to be in writing, the ruling is that this question is not before the court. It is not necessary to allege that it was in writing, but only that the contract was made. The point can only arise upon an offer of testimony, where the declaration does not allege it was by parol.

The demurrer must be sustained. Leave will be given to plaintiff to amend his declaration, otherwise there must he judgment for the defendant.