Supreme
Court of Canada
Penman
Manufacturing Co. v. Broadhead, (1892) 21 S.C.R. 713
Date:
1892-06-28
Penman
Manufacturing Co.
and
Broadhead
1892: February 5, 8, 9;
1892: June 28.
Present:—Sir W.J. Ritchie C.J. and
Strong, Taschereau, Gwynne and Patterson JJ.
Contract—Patent—Agreement for manufacture—Substitution for new
agreement—Evidence.
APPEAL from a decision of
the Court of Appeal for Ontario affirming the judgment of the Divisional Court
in favour of the plaintiff.
The
action was brought by the respondent to recover the amount of royalties claimed
to be due to her under an agreement by which appellants were to manufacture
certain goods on a machine patented by respondent. Before the patent expired
and while the agreement was in force respondent patented another device for
making the same class of goods, and after some correspondence with appellants
as to the same the latter agreed to take both patents for a year paying a
specified sum for royalty, which the appellants accepted. At the end of the
year the appellant, claiming that the original agreement was still in force,
brought an action for royalties thereunder and obtained a verdict which was
affirmed by the Divisional Court and the Court of Appeal.
The
Supreme Court reversed the decision of the Court of Appeal and held, Taschereau
J. dissenting, that the correspondence and other evidence showed that the
agreement by the respondents to take the two patents for a year was in
substitution for and superseded the original agreement and appellant could not
claim royalty under the latter.
Crerar Q.C. for the
appellants.
F.C. Moffatt and Masten for
the respondent.
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