Wilson v. Stolley

30 F. Cas. 227, 5 McLean 1

• Court: U.S. Circuit Court for the District of Ohio
• Decided: October 15, 1849
• Status: Published

Opinion

MeLEAN, Circuit Justice

(charging jury). This is an action at law, to recover damages for the infringement of Woodworth’s patent for planing boards, which has been assigned to the plaintiff. The defendant sets up a license in his defense. Plaintiff alleges that the license was forfeited by the defendant. The license was given by Brooks & Morris, in whom the right to the patent was vested, but they have since assigned to the plaintiff. In that assignment the license to Stolley and others is referred to, and Wilson, the plaintiff, bound himself to do what Brooks & Morris were bound to do. In the license it is stated that Stolley has two planing machines, and he was authorized to run either. Stolley agreed to pay one dollar and twenty-five cents to the lessor, or his assigns, for every thousand feet of boards by him planed, to be paid every Monday morning, during the term of the lease; and that he will work for cash only. He bound himself to keep regular books, to be inspected when required by the licensor, and that he would make his return under oath, when required. Among other provisions of the contract, it was agreed, if said Stolley elect to abandon the running of his machines as aforesaid, or cease for two weeks to run the same, then such neglect to run shall be considered an abandonment on his part, and said Brooks & Morris may consider this contract at an end.

Under the contract. Stolley had a right to abandon it without cause. The neglect, for two weeks, to run the machine, might be considered an abandonment by the plaintiff. A formal notice was not necessary by the plaintiff, that he considered the failure to run the machine two weeks as an abandonment. Any unequivocal act, showing a waiver of the right to put an end to the contract, such as an-expressed determination to enforce it, would be sufficient; or an acceptance of rent subsequently. A refusal to receive the rent would show, that he considered the contract terminated.

It seems, from the testimony, that Stolley sold his license to Garrard. The license, we suppose, was assignable, as it could not be considered a personal privilege. Garrard purchased the machine of Stolley, and commenced running it the 1st of June, 1846. Inquiry was made of Garrard, by Wilson, jun., by what right he was running the machine; and he was informed that he was running under Stolley’s license, which had been assigned to him, and that his father, the plaintiff, . had promised to give him a license if Stolley would abandon his license. Young Wilson then gave Garrard notice to cease running the machine. Stolley was then in the shop, and told Garrard to go on,—that he would stand between him and Wilson. Witness ran the machine from 1st June to October, 1846. In September, Garrard informed Stolley, that he had made an agreement with Wilson, to run the machine. Stolley proposed to Garrard to rescind the sale of the machine, and refund the money, and give him the use of the property up to that time, but Garrard refused to cancel the contract. On the 30th of September, 1846, Stolley commenced an action of replevin for the machine, until which time Garrard continued to run it. About two weeks before this, Stolley commenced running a new machine. Gar-rard was induced to purchase in the first, by the representations of Stolley, that he would give his custom in that business, as far as he could by sending his customers to him. When the sale was made to Garrard, Stolley stated as a reason for selling, that his saw mill and the planing machine afforded more business than he could attend to.

Prom these facts, gentlemen of the jury, it will be for you to say, whether there was not an abandonment of his license by Stolley. He sold his machine, agreed to transfer his license, and ceased to run a machine from some time in May till- some time in September. To cease two weeks was an abandonment under the contract. But here was an abandonment of more than three months, under a declaration that he intended to quit the business, as he had more to do than he could attend to. Under these facts, it will not be difficult for you to render a verdict in the case, and you will find such damages in favor of the plaintiff as you shall think the circumstances require.

Verdict for the plaintiff.

[For other cases involving this patent, see note to Bicknell v. Todd, Case No. 1,389.] WILSON v. STOLLEY. See Cases Nos. 1,-962 and 1,963.