Davis v. Tingley

[118] Opinion, Mr. Justice Trunkey: The defendant asserts that the attachment was dissolved for the sole reason that no cause of action was shown. At the hearing the two contracts referred to in the plaintiff’s affidavit were before the court, and subsequently, by order of the Court, copies of said instrument were filed. Davis and Tingley, on January 1, 1871, agreed “to form a copartnership for the manufacture and sale of articles under their patent, known as Tingley’s Patent Contracting Band for Casks and other vessels.” It is stated in the instrument that “said Tingley has recently added the very important improvement known as the New Revolving Ice Cream Machine ”; and they further agree “ that, in view of the important addition of the freezer to the original list of articles made under the said patent, the said Samuel L. Davis agrees to furnish, |600, free of interest, as additional capital for the business.” They also stipulate that “Davis shall act as a silent partner, and that his name shall not be used or known publicly in connection with this partnership.” And Tingley agreed to carry on the business for a named compensation. On June 6, 1871, Davis and Tingley granted to Blatchley the exclusive right to use both patents referred to in the articles of copartnership, in the manufacture of ice cream freezers within the United States for a royalty or license fee of five per centum of the sales of said freezers to be paid to said Tingley. The recital in this grant shows that Davis was a patentee in the first patent, and hence the necessity that he should be a party to the grant to Blatchley. The grant stopped the manufacture of freezers by Davis and Tingley, but it made no other change in their business so far as appears at present. Davis was a joint owner in the first patent, and for a valuable consideration he 'had an interest in manufacturing under the second; and, unless he was to share in the royalties and license fees paid by Blatchley, he gave away his interest so far as related to the use of the 'patents for manufacturing said freezers in the United States. Nothing appears to indicate a gift. The affidavit sets forth that the grant was made in consideration that the royalties were to be paid to Davis and Tingley, and that Tingley received the same for their joint benefit. x Tingley was to carry [119] on tbe business of the partnership in his own name, and the provision that he should receive the royalties or license fees was consistent with the terms of their partnership. It is hardly probable that the silent partner in the firm which was using both patents would have joined in a sale of an important part of the business, as well as of the right to use the patents, without any real consideration for himself. We think the plaintiff’s affidavit, and the agreements, show cause of action. The judgment dissolving the attachment is reversed, and procedendo awarded.