Upon reconsideration of this case on petition for rehearing, my view is that the petition should be granted on one ground.
When this case was before this Court in March, 1943, on an appeal by the State, et al., from a final decree rendered *Page 330 by the chancellor in favor of the appellees on that appeal, who are the appellants here, the general law of the case was settled and should be adhered to, as the Court has done; but the opinion of the court on the former appeal closed with the following paragraph:
"The decree appealed from is reversed with directions to the chancellor to enter an appropriate decree for appellants. He is further directed to enter such decree as justice and equity may require as to Louisville Drying Machinery Company and as affecting it and W.M. Neal and Citrus Patents Company."
Said appeal was taken from a final decree of the chancellor, holding that Dr. Neal was employed under a general contract of employment and was under no obligation to assign his patent to his employer; that he at no time held it in trust for his employer and that Citrus Patents Company was a bona fide purchaser for value and without notice. This court reached a contrary conclusion. See State, et al., v. Neal,12 So.2d 590, 152 Fla. 582. But I think the record discloses that the Citrus Patents Company honestly believed that their purchase of the patent from Neal was a valid and binding assignment, although, as this Court held, they were, on the real facts and the law, mistaken in that belief. The decree of the chancellor was reversed with directions as above quoted.
After the case went back to the lower court, the defendant Citrus Patents Company filed a motion for leave of the court to amend its answer in certain particulars, one paragragh of which reads as follows:
"10. Further answering, this defendant says that after this suit was filed, a three-party interference was declared (No. 79789) in the United States Patent Office as between the application of said Neal (the subject matter of this suit) and a patent produced by one Daniel Vicent and another application by one Finley; that it was necessary, in order to secure an adjudication of the fact that Wayne M. Neal was the first inventor of the invention placed in issue in said interference, for this defendant, as assignee of said Neal, to employ counsel and participate in and prosecute said interference; *Page 331 that this defendant as a result thereof, through its counsel, filed a brief and argued a motion on behalf of the Neal application and did brief, successfully oppose, answer and argue motions filed on behalf of Vicent and Finley, and did attend numerous hearings for the taking of testimony and depositions relative to said interference in Florida, Kentucky, New Jersey and California, all of which, together with the preparation of the transcripts in said interference, entailed expense to this defendant of over $20,000.00 and as a result thereof, said interference has almost been completed and adjudicated and nothing further remains to be done except the printing of testimony taken in behalf of the Neal application, preparing and printing of a brief and arguing the case in the United States Patent Office; that had it not been for such participation by this defendant in said interference, the said application would have been lost or else the plaintiffs would have had to bear this expense; therefore it would be inequitable for the plaintiffs to become thus unjustly enriched at the expense of this defendant and therefore this defendant says that before any decree is entered in behalf of plaintiffs, they should be required to reimburse this defendant for such sums so expended."
The court below denied the motion for leave to amend in toto.
I am inclined to the view that the trial court erred in denying that portion of the motion to amend above quoted, and that on this petition for rehearing we should enter an order amending our previous order of affirmance so as to reverse the action of the court below in denying the motion to amend the answer in so far as paragraph 10 above quoted is concerned, and affirm the action of the court below in all other respects, with directions to permit said defendant to amend its answer as above pointed out in paragraph 10 of the motion and take testimony thereon, and grant such relief, if any, as the evidence adduced might support.
My views in this regard are founded upon the familiar equitable maxim that "he who seeks equity must do equity."
TERRELL, CHAPMAN and ADAMS, JJ., dissent. *Page 332