In Banc. It would seem to be necessary to state succinctly what each party was to do under the terms of this contract; at least, so far as it respects the fact relating to the discharge of plaintiff. In the first place, plaintiff must show that he was an inventor, mechanic and machinist, and, as a matter of law, it should appear that he was possessed of reasonable skill and ability in the line of work in which he proposed to offer his services as an employee.
In the second place, he was bound to furnish to the second party the sketches, ideas and information evolved by him in the course of his employment, and to aid the second party in every possible way in securing letters patent from the United States government of a contemplated and improved blanket brushing machine and textile fabric washing machine then being developed by the party of the second part, and any and all improvements to either or both of said machines as might be developed by him from time to time as long as he remained in the employment of defendant.
Third, it was agreed by both parties that should either said blanket brushing or washing machine be nonpatentable or impractical after building, or should the plaintiff for any reason fail to be capable of performing his part of the contract, that the agreement should automatically become null and void, and the party of the second part was to reassign and convey by a proper instrument of conveyance letters patent *Page 207 No. 1,374,456 to the first party, which it is admitted was offered to be done in the present case.
There is nothing in the bill of exceptions to indicate that plaintiff failed to use his best efforts to carry out his part of the contract. It is to be observed that nothing in the defendant's contract obliged plaintiff to produce a perfect machine. He was employed principally as an inventor and deviser of certain machines upon which the defendant hoped to obtain patents, and in that respect the contract was carried out if he brought to the work a reasonable degree of skill and efficiency. Whether he did this or not would be a question of fact for the jury. He was not bound to produce a patentable machine, but to use his best efforts in that direction. If, after building the proposed machine, it should prove to be nonpatentable, or if, after using his best efforts, the machine should prove to be nonpatentable or impractical, then his employment should cease automatically.
The bill of exceptions is not very complete as to his ability, but the burden of proof is on the defendant to show that he was incapable, after a fair trial, to perform the work which he proposed to do. Just exactly what he did, so far as the bill of exceptions shows, is described by Laing one of the officers of the defendant, which description is as follows:
"Lambert told me that he had a great idea on a proposition in connection with a blanket brushing machine and which involved the use of two brushes instead of one, which was already in existence and being operated by the Laundry Equipment Company and the main proposition was that by using two brushes he could brush the blanket by one operation on both sides; well I knew of this blanket brushing machine, of its first inception; they had tried to get a patent on a blanket brushing machine before I ever *Page 208 saw Mr. Lambert; Mr. Fred Smith (?) of the State Laundry and I worked on that machine myself and I knew all about that; when he explained that two brush principle to me, I was interested, very much interested * * I gave him some rough sketches which are on the table and which Mr. Lambert and I went over very thoroughly * * I wrote out the mechanical papers and with these few sketches he gave me I drew up a patent drawing * * we were rushing it as fast as possible because Mr. Lambert was anxious to get this through and urging me to get it through, consequently I worked at home nights, and I drew a design of the machine at the time and before I sent that he was there and saw the drawing and he approved of it * * after the application was made I immediately started working up, what we call in mechanical terms a `lay out'; that is drawing out the machine and finding out where he could get certain wheels, brushes and bearings and all those kind of things; no time was lost in starting on that `lay out' because I was just as anxious as Mr. Lambert was to go ahead with it; we were anxious at that time to enlarge our business, the machine business and it was something I thought which was very good and I made the lay out; in the first lay out we had considerable trouble; we had no room for this thing — no room for the eccentric. * * We had the lay out and still decided on this eccentric adjustment — well, on making the first lay out, we found we could not do that, or put that on properly, and have a proper machine put on the market; it would look unmechanical; the arrangement on the frame would be so out of proportion and unmechanical, that it was entirely out of the question, that eccentric adjustment, and at Mr. Lambert's suggestion, the two of us together, we decided to abandon it * * he says `according to that, Jim, we will go to work on this principle of the bell crank lever,' and that lay on the table for a month before there were any sketches given or made as to what the bell crank lever would be. * * We were *Page 209 talking about that, and I told him his ideas were not practical. * * To draw up these two rolls (indicating) these are supposed to be rolls governed by a lever; there is a certain amount of friction coming from this roll; this is the double blanket; the blanket goes up; it is doubled and is immediately caught by the friction between these two rolls; as Mr. Lambert explained this morning, this roll winding up or operating by this bell crank lever system around this way the bottom roll being here and then around this way (indicating) that is a mechanical motion — now when the blanket gets up here (indicating) it comes in contact with this brush revolving at a speed of about 300 (?) revolutions * * And then down here (indicating) are another two rolls; well the distance between this center and this center (indicating) I think we decided on ten inches * * When the blanket comes here — gets down between these two rolls and comes to this part (indicating) — as soon as the end of the blanket leaves the contact of these two rolls, what becomes of that adjustment or mechanical motion — there is nothing there to hold it, isn't that right? * * The effect is that the blanket immediately falls down on top of the two rolls in a bunch, and the machine is not a practical mechanical job; that is what I saw when he explained this thing to me and wanted me to get a patent on it; I knew it wouldn't work and I told him my reasons why it wouldn't at that very time."
He was then asked the following question by defendant's counsel:
"Now then referring to this drawing down here on the board, assuming that the blanket would fall down, as it is claimed (referring to drawing on blackboard) what effect would the falling down of that blanket have on the operation of this machine?"
The question was objected to and the objection sustained, the objection being that the witness did not show himself to be an expert. *Page 210
It is not clear what the intent of this question was, although there is no question but that the witness showed enough expert knowledge to enable him to testify. There was no statement shown by the bill of exceptions as to what was expected to be proven by the witness, or as to what bearing it had upon the question in controversy. In fact, the machines were never built, and so there was no default on the part of plaintiff on that branch of the case which rendered the contract automatically void or capable of being terminated by defendant.
The other question, as to the fact of a patent having been applied for and denied, would have been perhaps sufficient to terminate the agreement, unless, as plaintiff claimed, some of the adjustments and improvements which he suggested were not included in defendant's application. Upon this there is no testimony in the bill of exceptions and we cannot know what the evidence showed on this point. So, upon the face of it, the plaintiff had a case sufficient to go to the jury.
We now come to the objection of certain instructions given by the court, and to other objections as to the refusal of the court to give requested instructions. The first objection is as to the following instruction:
"The burden of proof is upon the defendant to show by the preponderance of the evidence that plaintiff did not possess the skill and ability of a general mechanic."
The general rule is as stated in this instruction, but defendant contends that the following clause in the agreement places the burden of proof upon the plaintiff: *Page 211
"Provided, however, and on condition that the party of the first part shall be physically and mentally capable of performance of his duties which it is understood shall be that of inventing and developing machines and devices with a view to patenting the same, and the general work of machinist and mechanic."
We think this clause adds nothing to what is implied in every contract for doing special work and labor, and that is that the party contracting to do such service shall be mentally and physically capable of performing his duties, and that the burden of proof still remained on the defendant, as in all other contracts, to show lack of capacity or skill to perform it properly.
The next objection is as to the failure of the court to give the following instruction requested by the defendant:
"Defendant in this case charges plaintiff with being incapable of performing his duties as a machinist and mechanic; it maintains that he was inaccurate in his work due to defective eyesight and lack of concentration; that he spoiled a great deal of work assigned to him; and that he was generally incompetent as a machinist and mechanic. These things would be a good defense and if true would justify defendant in discharging plaintiff from its employ under the terms of the contract. So that, if you believe from the evidence that defendant's claim as to plaintiff's incompetency are true, then your verdict here should be in favor of the defendant iron works."
The court gave this instruction word for word excepting that by an evident oversight, it used the phrase "would justify defendant in discharging defendant from its employ." This was evidently a mere slip of the tongue on the part of the court and cannot possibly have misled the jury. *Page 212
The third objection is a refusal of the court to give the following requested instruction:
"If you believe that plaintiff is entitled to recover damages from the defendant you must take into consideration the matter of the plaintiff's time during the period of five months and eighteen days, the unexpired term of said contract. Now, the law fixes a duty upon plaintiff Lambert of reducing his damages as much as possible. The law will not permit him to rest comfortably at home during the five months and twenty days' period I have mentioned. The law requires Mr. Lambert to seek other employment during that period. He must use reasonable diligence to earn something at his trade or other occupation during this whole period of five months and eighteen days. So, I say to you that if you consider that Mr. Lambert is entitled to a verdict you must deduct from Eleven Hundred Twenty Dollars ($1120.00) the maximum amount I indicated above, not only what he actually earned, which he admits to have been Five Hundred Thirty-four Dollars ($534.00), but in addition thereto such amounts as you believe he was capable of earning by the exercise of reasonable diligence throughout the entire period of five months and eighteen days.
"In other words, the greatest possible judgment you can return in this case for the plaintiff, provided you believe he is entitled to anything from the defendant would be $1120.00, less $534.00 or $586.00, and from this latter amount you must deduct any further amounts you believe the plaintiff might reasonably have earned during this period of five months and eighteen days."
In lieu of this instruction, the court gave the following instruction:
"You will take into consideration what Mr. Lambert earned during that period, the rule being in a case of this kind where damages are sought for the breach of a contract of employment, that the injured *Page 213 party, after the contract of employment has been broken by the employer, can recover the amount of the wages agreed upon for the unexpired term, less such amount that he was able to earn during that period of time, so his damages would be reduced by that amount; it is or was his duty to earn what he could during that time."
This instruction gives in concise and tabloid form the whole substance of the longer instruction asked by defendant, and where the instruction requested is given in substance by another instruction, there is no error.
The court also gave the following instruction:
"If you find for the plaintiff and that he is entitled to damages the greatest amount you could allow the plaintiff, taking into consideration the period of time for which he was not paid by the defendant, his earning power during that unexpired term would leave a balance not to exceed $565.00."
When the court told the jury that if plaintiff was entitled to damages, if at all, he was entitled to an amount of wages agreed upon less such amount as he was able to earn during the period of nonemployment by defendant, he practically told them that he was entitled to all that he was capable of earning, or all that it was his duty to earn at that time. In addition to that, the jury was instructed to take into consideration his earning power.
Taken as a whole, we think the trial was exceedingly fair and that the defendant suffered no substantial injury by any ruling of the court during the trial. The judgment is affirmed.
AFFIRMED. *Page 214