Marsh v. . Dodge

Bapallo, J. We think that the exclusion of the instrument providing for a drawback was error, for which a new trial must be granted, without regard to the other questions in the case. The plaintiff set up in his complaint a written license and agreement between him and the defendants, whereby they agreed to pay him a license fee of ten dollars upon each of the Marsh’s self-rakes which should be made and sold or disposed of by the defendants, or by their authority or procurement during the term of the license. The answer contained a general denial of the agreement alleged. On the trial the plaintiff proved the instrument set forth in the complaint and the defendants proved that another instrument was executed at the same time, and between the same parties, which recited the license and agreement set forth in the complaint, and provided, among other things, that the defendants should be allowed a drawback of three dollars on each self-rake made and sold by them and attached to machines, other than Marsh’s self-rake harvesters. This instrument, although not dated, stated upon its face that it was made on the same day with the license, and it was proved that all the papers were executed at the same time. When offered in evidence by the defendants it was objected to on the ground that it was inadmissible under the pleadings. The defendants’ counsel expressly stated that he offered it for the purpose of reducing the price from ten to seven dollars. This was, in substance, an offer to show that the machines sued for, or some of them, came within the terms of the instrument offered in evidence. USTo objection was taken to the form or sufficiency of the offer, but the only objection was that the instrument was inadmissible under the pleadings. The court sustained the objection and exception was taken. It is a familiar rule that several instruments made between, the same parties at the same time and relating to the same *538 subject-matter are to be read as one instrument. Here the parties were the same. It was proved that both instruments were executed at the same time. The second refers to the first as a paper executed the same day, and recites it in part, and contains an important modification of one of its provisions. It clearly relates to the same subject-matter. Both instruments should, under the rule before referred to, be read as one. The case then stands as if the complaint had set out only a part of the agreement, omitting another part, which materially qualified the part set out Under a denial of the allegation that the agreement was as set forth in the complaint the defendants were clearly entitled to read in evidence the part which had been omitted. Upon the merits we are inclined to concur with the court below, that the evidence was sufficient to charge the defendants for the royalty on the machines made by the Dodge & Stevenson Manufacturing Company from the material transferred to them by the defendants, provided the rakes so made were sold by the company. The defendants transferred to this company their entire stock, material and machines finished, on hand and in hands of agents, and their good will and patents. The property thus transferred embraced a large number of rakes in pieces, ready to be put together, which were afterwards put together and sold by the corporation; all the valuable assets of the defendant’s firm, including articles in process of manufacture, and all the rakes finished and unfinished and the good will of the business were transferred to the corporation, which continued the same business, the defendant Dodge becoming the president and manager of the corporation. We think there is enough to show that the rakes made and sold by this corporation were so made and sold by authority and procurement of the defendants, and that the corporation would have been protected by the license granted to the defendants against any claim for infringement. There are numerous other exceptions in the ease, but as the same questions may not arise on a new trial, we have not considered it necessary to pass upon them. *539 The judgment must be reversed and a new trial ordered, with costs to abide the event. All concur; Andrews, J., taking no part. Judgment reversed.