Skinner v. Walter A. Wood Mowing & Reaping Mach. Co.

Per Curiam. Defendant insists that the contract under which plaintiff claims was single, and its breach constitutes but a single cause of action, and plaintiff, having in a former action chosen to sue for and recover what he . now claims was only part of his damage, cannot recover the balance. We are of the opinion that the learned referee has reached the correct conclusion as to this position of the defendant, and,.referring to his opinion in that regard, deem it unnecessary to further discuss the matter. 2 Pars. Cont. 29-31; Oil Co. v. Brewer, 66 Pa. St. 354; Sickels v. Pattison, 14 Wend. 257; Per Lee v. Beebe, 13 Hun, 89; Tipton v. Feitner, 20 N. Y. 423. Defendant also claims that, plaintiff’s patent being in fact void after the notices claimed to have been given in October, 1880, and June, 1882, all liability to pay for the use of plaintiff’s patent ceased. It concedes that the invalidity of plaintiff’s patent, alone, is no defense to the action as to defendant as licensee, (Marston v. Swett, 66 N. Y. 207, 82 N. Y. 526,) but it insists that at the time mentioned notice was given to plaintiff that it would pay no more under the contract, and that the invalidity of the patent after such noti.ce should prevent a recovery. The referee held that no notice was given by defendant to plaintiff sufficient to terminate the contract. We coincide with his views, and, again referring to his opinion in that regard, will not discuss the matter, except to make a single suggestion. We are unable to see that "any valid action was taken by defendant with a view of terminating the eon- . tract with plaintiff, or giving him notice of such termination. The defendant could only act through its trustees. Beveridge v. Railroad Co., 112 N. Y. 22, 19 N. E. Rep, 489. It does not appear that the trustees ever met, acted, or voted in the matter. It is not shown that the auditing board had any authority to cancel or annul the contract made by the corporation, or to serve any notice upon the plaintiff; and, if such board, had this power, it does not appear that it attempted to exercise it. Fio vote was taken, nor any action, except an expression of opinion by the individual members of the board. The evidence, we think, sustains the finding of the-referee. The first action was commenced in July, 1883. The alleged notices were given by defendant in October, 1880, and June, 1882. Therefore, although, if in fact any proper and authorized notices were given to plaintiff by defendant, it had a complete defense to any action of the plaintiff since October, 1880, no such defense was asserted in its answer, or claimed on the trial, in the first action. This failure on the . part of the defendant to claim such a defense in the pleadings or on the trial of the first action is virtually an admission that no such defense existed, and tends to show that the conclusion of the learned referee was correct. The judgment in the first action necessarily determined that plaintiff’s license to defendant continued until September 1, 1884, two years after the alleged notices; "and-this fact was not controverted by defendant in the pleadings or on [259] the trial. It follows that, as the former judgment does not prevent the plaintiff from recovering for the use of his patent since September 1, 1884, and the invalidity of the patent alone is no defense to the action, and no sufficient notice was given by defendant to plaintiff that it would pay no more under the contract or license, the plaintiff is entitled to judgment in the action. It is not then necessary to consider also the position taken by the learned referee, that the former judgment was a bar to the defense asserted by defendant, based upon the invalidity of the plaintiff’s patent, and the notice to Mm, alleged to have been given by defendant. Judgment should be affirmed, with costs. All concur.