[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 287
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 288 The complaint is clearly sufficient. It contains a plain and precise statement of facts constituting the plaintiff's cause of action. It specifies five patents which were issued to him at the dates mentioned, and avers that those patents are the same that are mentioned in the contract annexed to the complaint; that under the contract the plaintiff did at a date mentioned duly assign, transfer and set over to the defendant, or for its use and as its request, the patents mentioned; that it has manufactured and sold under the patents and contract a large quantity of the commodities covered by and referred to in the patents; and that after all the deductions authorized by the contract, there remained net profits received by it amounting to the sum of $150,000; that he has demanded his half of such net profits; that it has refused to pay that share to him, and he demands judgment. So far as we can perceive this complaint is absolutely unassailable. It is quite true as contended by the defendant that the plaintiff was bound to assign to it not only the letters patent, but all the inventions. We may assume that the *Page 290 plaintiff has not assigned the inventions, but we cannot assume that he has refused to do so. The averment in the complaint is that upon the request of the defendant he assigned the patents, and that it has used them and made the net profits by the use of them. It has, therefore, had the substantial benefit of the agreement thus far. If the plaintiff's assignment was not as full and complete as it was entitled to have, it should have refused to accept it, or to use the patents, and then it could have compelled him to perform his contract, or have sued him for damages. But having taken an assignment of the patents under the agreement, and used them, it cannot refuse to pay the share of the profits stipulated in the contract. If it now wishes an assignment of the inventions, it must demand it, and if refused, it may compel the assignment by suit or recover damages for the refusal; or it may retransfer the patents to the plaintiff and refuse further to use them. But it cannot retain the patents and use them without any liability to pay the stipulated compensation for their use. So too if the defendant has suffered any damages because the plaintiff has refused to assign the inventions it may interpose a counterclaim for such damages in this action.
The agreement requires the plaintiff to assign the patents to the defendant, and it is claimed that the complaint is defective because it alleges that he assigned, transferred and set over the patents "to the defendant, or for its use." But it is alleged that the assignment was thus made at its request. It certainly would be a performance of the contract on the part of the plaintiff if, at the request of the defendant, it assigned the patents to some person for its use, and it thereafter used them and had the benefit of them. It is quite hypercritical to say that the letters patent mentioned in the complaint are not those referred to and contemplated by the contract. It is alleged that they were issued to the plaintiff; that they are the same letters patent mentioned in the contract; that the patents were assigned to the defendant at its request, in pursuance of the contract, and that it used them. What further allegations were needed? *Page 291
This complaint cannot be condemned as insufficient without applying rules for its construction more stringent than have ever prevailed in this state, in despite of the provision of the Code (§ 519), which requires the allegations of pleadings to be liberally construed, with a view to substantial justice between the parties.
The judgments of the General and Special Terms should be reversed and judgment given for the plaintiff upon the demurrer, with costs, with leave, however, to the defendant, within twenty days after the filing of the remittitur in the court below, upon payment of all the costs subsequent to the demurrer, to answer the complaint.
All concur.
Judgment reversed.