Summary
In Jones v. Reynolds, 120 N.Y. 213, the buyer took the model into his possession, retained it for a year without returning it or offering to return it, and solicited a patent on the basis of it. Of course the court held that there was evidence of acceptance for the jury; but the ruling is obviously inapplicable to the case before us.
Summary of this case from Shrimpton Sons v. DworskyOpinion
Argued March 18, 1890
Decided April 15, 1890
William Townsend for appellant. Edward H. Risley for respondent.
The plaintiff invented and applied to a metal shoe-last a device which both plaintiff and defendant believed to be an improvement.
Such device was the individual property of the inventor, and as such the subject of sale by him. (2 Kent's Comm. 366; 50 How. Pr. 194; Palmer v. De Witt, 47 N.Y. 532; Tabor v. Hoffman, 27 N.Y.S.R. 756.)
By an oral contract the plaintiff sold the invention to the defendant and at the same time delivered to him a model, which he took and retained.
The parties differ as to the terms of the contract. The plaintiff testifying that the defendant agreed to pay him $500 for the invention if he made any use of it. And the defendant, that he contracted to pay $500 if he used it on all his lasts, $250 if he used it on one-half of them, * * * and nothing if he did not use it on any of his lasts.
This difference is of consequence in view of the fact that, up to the moment of the trial, the defendant had not used the device on any lasts whatever. If his version of the agreement, therefore, be the true one, it follows that he is not indebted to the plaintiff.
But it appears that the defendant, after receiving the model, applied for and obtained a patent for a combination of the several elements or parts of a metal shoe-last, which included the device sold him by the plaintiff. This act, the plaintiff claims, amounted to a use of the invention sold defendant within the terms of the agreement, as testified to by him.
Thus was presented, as we think, a question for the jury, for upon them, and not upon the court, devolved the duty of determining which party correctly stated the terms of sale. A reversal of the judgment is, therefore, required, unless the nonsuit can be supported on other grounds. Three grounds were assigned for nonsuit and pressed upon our attention here, which we shall briefly consider. First, the objection that, because the agreement is not in writing, it is void, within the provision of section 4898 of the United States Revised Statutes, is not well founded. ( Barr v. De La Vergne, 102 N.Y. 415; Walker on Pat. § 274.) That section has reference solely to patents or an interest therein. It does not relate to an invention which has not been and may never be patented. Second, the assertion that a recovery cannot be had for that the invention is valueless, is not supported by the evidence.
It does not appear that the device was known to the prior state of the art upon the subject of metal lasts, or that, for any reason, it was not patentable, and, therefore, not an invention in a legal sense. The defendant's evidence, in effect, is that the device in its present condition is impracticable; that "the idea is there," and, with some alteration, might be used. The device was, therefore, the subject of bargain and sale.
And the purchaser, in agreeing upon the price to be paid, may have erred as to its value. But the consequences of his error of judgment, if such there were, could no more be avoided in this than in other contracts. This the defendant evidently understood, for he provided that the agreed price should be payable only in case he "made use of the invention," as testified to by the plaintiff, or in case he "used it on his lasts," according to the evidence adduced by the defendant. Third, it is insisted that inasmuch as the contract was not "made in writing" it is void, because the defendant did not "accept and receive" the thing sold; or, "at the time, pay some part of the purchase-money," as required by the third section of the second title of the Statute of Frauds. It will be observed that the plaintiff did not undertake to procure or sell a patent. He sold the device merely. The defendant was at liberty to make such use of it as he saw fit. And the plaintiff, at the time, made the only delivery possible of the thing sold. He delivered to defendant a model of the invention. By that act he placed him in possession of the device in condition for practical use. As no part of the purchase-money was paid, the question presented is, whether the defendant accepted and received the thing sold so as to take the contract out of the statute? The act of acceptance is something over and beyond the agreement of which it is a part performance and which it assumes as already existing. It is a fact to be proven as are other facts. Acts of ownership constitute strong evidence of acceptance. (Reed on Stat. of Frauds, § 261.) So, too, does a long and unreasonable delay in returning goods. (15 Q.B. 428, 442; 39 Conn. 31.)
If a vendee does any act with reference to the thing sold, of wrong if not the owner, or of right if he is the owner, it is evidence that he has accepted it. ( Parker v. Wallis, 5 El. Bl. 21.)
The rule may be broadly stated, that any act from which it may be inferred that the buyer has taken possession as owner presents a question for the jury to determine whether the act was done with intent to accept. ( Barnes v. Jevons, 7 C. P. 289; Pinkham v. Mattox, 53 N.H. 605; Gray v. Davis, 10 N.Y. 285; Browne on Stat. of Frauds, § 321.) In this case the defendant took the model into his possession; retained it over a year without returning or offering to return it; and made an application for and obtained a patent for a combination of elements which included the plaintiff's device.
In view of these acts on the part of the defendant it cannot be held as a matter of law that he did not accept and receive the thing sold. For each of the acts enumerated were of right to be considered as evidence upon that question. Whether there was an acceptance constituted a fact to be determined from the evidence we have referred to, considered in connection with all the other facts and circumstances proven. That question was properly for the jury. The nonsuit is not, therefore, sustainable on the ground that the oral contract is within the condemnation of the Statute of Frauds.
The judgment should be reversed.
All concur, except FOLLETT, Ch. J., not sitting.
Judgment reversed.