In substantiation of plaintiff's claim, its treasurer, one Adler, testified that on July 23, 1918, he was in the city of Syracuse, representing the plaintiff as a traveling salesman, and that he was informed that the defendant had advertised for sale a quantity of white cotton cloth, which the salesman conceived might be used by his principal. Accordingly, in company with a resident of the city of Syracuse, with whom . he had been doing business, and who was acquainted with the officers of the defendant, plaintiff visited defendant's place of business. He testified that samples of the cloth which he desired to purchase of the defendant were exhibited to him, and that he then entered into an agreement for the purchase of 15,000 yards thereof, and that it was agreed that said goods should be immediately delivered to the plaintiff upon a credit of "net cash 10 days." Adler testified that defendant's representative told him that the goods would be shipped immediately, and that thereupon an order was made out, which was signed by Adler. Adler further testified that the goods were not delivered as agreed, and that the defendant refused to deliver the same, although delivery thereof was thereafter repeatedly demanded by the plaintiff.

The defendant's representatives, who were present at the time Adler claims to have purchased the goods and at the time he testified defendant's representatives agreed to make immediate delivery thereof, testified that the sale was to be "net cash 10 days, subject to the credit of the Success Waist Company being satisfactory" to the defendant. Defendant's secretary and treasurer, Greene, testified that on the occasion. when Adler called he told him that, if he found the plaintiff all right, they would be very glad to ship the goods; that Adler then asked Greene when the goods would be shipped, and that the latter replied that it would take probably five to seven days to look up the basis of credit of the plaintiff. The assistant manager of the defendant, one Germain, also testified in defendant's behalf as to the terms of the agreement, and that in the presence of said witness defendant's secretary and treasurer, Greene, told Adler that the defendant would ship the goods on credit, provided that plaintiff's credit was satisfactory.

Upon the evidence a sharp question of fact arose as to whether or not the defendant agreed to ship the goods, which, under the agreed price of 11 cents per yard, amounted to $1,650, immediately upon a 10 days' credit, as claimed by Adler, or whether, as claimed by defendant's representatives, delivery of the goods at the price mentioned was to be made only in case the financial condition of the plaintiff was, after investigation, satisfactory to the defendant.

The plaintiff introduced upon the trial the order for the goods, signed by its representative, Adler, and claimed that the order constituted the entire contract; whereas, it was the contention of the defendant that it was agreed that delivery was only to be made after the defendant and its representative, Greene, were satisfied as to the financial standing of the plaintiff. The evidence indicates that the defendant, both through the efforts of its treasurer, Greene, and others, made investigation as to the financial ability of the plaintiff, and that the defendant. was not satisfied from such investigation that the plaintiff should be

(188 N.Y.S.)

accorded the credit which it desired. On July 27, 1918, the defendant wrote the plaintiff, concerning plaintiff's order for the goods in question, that it had received reports concerning plaintiff's financial standing, and that upon the arrival of Mr. Greene, its treasurer, who was then out of town, the plaintiff would be advised regarding the same. Four days later, and on July 31, 1918, the defendant again wrote the plaintiff as follows:

"July 31, 1918.

"Success Waist Co., 101 Greene St., New York City-Gentlemen: Referring to the order which your Mr. Adler placed with us for 15,000 yards white goods, we hasten to advise you that, upon receipt of New York draft or certified check for the amount of this order, shipment will be made immediately. The Wigwam Company,

"Yours very truly,

"OHG-R.

Treas."

This letter very pointedly advised plaintiff that as the result of its investigations defendant had not been satisfied of plaintiff's financial ability and that defendant would not ship the goods on credit. The following day the plaintiff replied to defendant's letter as follows:

"Success Waist Co., Inc.,

"Cotton Waists Exclusively,

"101 Greene Street, Bet. Spring & Prince Sts.

"New York, Aug. 1, 1918.

"The Wigwam Co., Inc., Syracuse, N. Y.-Gentlemen: Your kind favor of the 31st inst. to hand, and in reference to same wish to state that we would like you to send us one piece, each, of the material bought, special delivery. Upon receipt of same we will send you a certified check for the entire shipment. Thanking you for your prompt attention, we beg to remain,

"Very truly yours,

Success Waist Co., Inc."

As a matter of fact, Adler, plaintiff's representative, had already been furnished with samples of each of the two grades of goods embraced in the order. It seems to me that the correspondence above quoted substantially supports the claim of the defendant that the delivery of the goods ordered was to be made only upon plaintiff's credit being established to the satisfaction of the defendant, and from plaintiff's reply to defendant's letter of July 31, 1918, it is apparent that the plaintiff did not claim to be entitled to the goods under other terms than as claimed by the defendant. The testimony of the plaintiff's witness Adler is quite improbable. Business houses do not usually sell and agree to deliver goods to entire strangers upon credit, without some investigation as to the financial ability of the purchasers. The probabilities are all in support of the version of defendant's representatives, Greene and Germain.

The court submitted to the jury the question of fact arising upon the opposing claims of the parties, and the jury found with the defendant. The court thereupon, upon motion of the plaintiff, set aside the verdict, and directed a new trial of the issues, because of certain alleged errors which the court conceived had occurred upon the trial. During the course of the trial the plaintiff sought to introduce in evidence a letter from the defendant to York Manufacturing Company, Incorporated, a New York corporation, making inquiry as to the financial re

sponsibility of the plaintiff, and the reply thereto from the York Manufacturing Company to the defendant, to the effect that the York Manufacturing Company had extended to the plaintiff a credit of $2,000 on 70 days' time, and that the plaintiff paid its obligations as agreed, and to the effect that it had an up-to-date financial statement from the plaintiff, showing an increase in plaintiff's capital, and to the effect that it regarded plaintiff worthy of credit to the extent of $2,000. These letters were excluded by the trial court upon the trial.

The court, in granting a new trial, conceived that error was committed in the court's refusal to receive such evidence offered by plaintiff, upon the theory that the jury was entitled to such evidence of plaintiff's actual financial condition, from which it might determine whether the claimed dissatisfaction of the defendant was genuine. The court, in setting aside the verdict, held that error had also been committed in charging the jury in effect that, if the sale was made upon the understanding and agreement that delivery was only to take place after defendant had examined into plaintiff's affairs, and after defendant's treasurer had found the credit of the plaintiff to be satisfactory, then the jury could not hold the defendant liable, as the transaction involved the judgment of the seller, and that no one could oblige the defendant to be satisfied if, after investigation, it felt itself justly dissatisfied.

I think no error was committed by the court, either in the exclusion of the testimony offered or in the instructions to the jury. I know of no rule of law which compels a seller of merchandise to accept as a customer any one whom he does not desire to trust. I do not think the question here depends at all upon whether the defendant arbitrarily refused credit to the plaintiff or not. If the defendant's witnesses are to be believed, delivery of the goods was to be only in case the defendant was satisfied upon investigation as to the financial responsibility of the plaintiff. Under the contract it remained entirely with the defendant to say when and under what conditions it would extend to plaintiff the credit which it desired. The correspondence which the plaintiff sought to introduce in evidence, and from which plaintiff claimed the defendant should have been satisfied with relation to plaintiff's financial responsibility, really proved nothing. The fact that some other business concern had had satisfactory business dealings with the plaintiff, and that in the opinion of such other concern the plaintiff was worthy of the credit which it sought, was not any evidence of plaintiff's sound financial standing, and might well have fallen far short of satisfying defendant with relation thereto.

After its investigations the defendant was, in fact, dissatisfied with plaintiff's financial standing, and promptly advised the plaintiff that it would ship the goods ordered upon receipt of cash payment therefor. I think the defendant was entirely justified in assuming such position, and in refusing to deliver the goods upon the credit which the plaintiff asked. Crawford v. Mail & Express Publishing Co., 163 N. Y. 404, 57 N. E. 616. I think a fair question of fact arose from the evidence, and that the issues were fairly presented by the trial court to the jury, and

(188 N.Y.S.)

that no substantial error occurred upon the trial which required the verdict of the jury to be set aside.

I think, therefore, that the court erred in granting the order appealed from, and that the same should be reversed, with costs and disbursements, and the verdict of the jury reinstated, and plaintiff's complaint dismissed, with costs, and that the defendant should recover of the plaintiff the costs of this appeal.

Order reversed, with costs, verdict reinstated, and judgment directed on verdict, dismissing the complaint, with costs. All concur.

(196 App. Div. 546)

SHUR-LOC ELEVATOR SAFETY CO., Inc., v. PURCELL et al. (Supreme Court, Appellate Division, First Department. April 29, 1921.) 1. Patents 183-Assignment of right to inventions held not to prevent use of inventions not patentable for lack of novelty.

Where defendant orally contracted to assign to plaintiff all rights to any patentable invention or device he was employed to work on, or application not yet acted on by the Patent Office, but had not agreed to refrain from divulging any secret process of the plaintiff, the defendant, and the defendant company organized by him could not be restrained from using his inventions, not patentable for lack of novelty, and which could be easily seen and copied, since an assignment thereof would give no rights. 2. Appeal and error 1152-Decree interpreted to carry meaning sought by modification, rendering modification unnecessary.

Where a fair interpretation of a decree would not preclude defendants from using any device which was not patentable by reason of lack of novelty, and which was not a secret device, because attached to an elevator in such a way that it was open to inspection and examination by any one interested, the defendants do not need a modification of such decree to permit their use of such unpatentable articles.

Appeal from Special Term, New York County.

Action by the Shur-Loc Elevator Safety Company, Incorporated, against William F. Purcell and another. From an order of the Supreme Court, denying defendants' motion to set aside an interlocutory judgment herein and granting a new trial because of newly discovered evidence, or in the alternative, that the said judgment be modified in certain respects, defendants appeal. Order affirmed.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ.

Hirsh, Newman & Reass, of Brooklyn (Benjamin Reass, of Brooklyn, of counsel, and Hugo Hirsch and Emanuel Newman, both of Brooklyn, on the brief), for appellants.

Thomas & Houghton, of New York City (Woolsey A. Shepard, of New York City, of counsel), for respondent.

SMITH, J. The plaintiff is engaged in the construction of safety devices upon elevators. In this action the court has found that the defendant Purcell entered into an oral contract to assign to the plaintiff "all his rights to any invention calculated to improve or perfect

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the device he was employed to work on, and to set over any application for patents for such device to the plaintiff." The defendant Purcell entered the employment of the plaintiff, first to give expert advice as to the improvement of the existing devices relative to the construction by the plaintiff of these safety appliances, and he was engaged for nearly a year in this employment. He afterwards entered the regular employment of the plaintiff as a superintendent, and devoted his time and his skill to the perfection and installment of these safety appliances, with the agreement heretofore mentioned to assign all his rights to such inventions to the plaintiff. After having been in the service of the plaintiff for a year, he organized the defendant corporation and gave to the corporation full information as to the devices which he had invented as improvements upon the devices theretofore used by the plaintiff in its work.

Judgment was entered in the action May 13, 1918, which restrained the defendants and each of them "from manufacturing, selling, installing, or otherwise using the device or devices for the safetifying of elevators now and heretofore manufactured, sold, installed, or used by them, or either of them, heretofore invented or devised by defendant Purcell while in the plaintiff's employment," and further requiring Purcell "to disclose and transfer to the plaintiff any and all devices, improvements, or inventions which he might at any time develop, invent, or devise, relating to the mechanical safetifying of elevators," in accordance with his agreement, and that the assignment to the defendant corporation be declared void and that both defendants execute and deliver to plaintiff "a good and sufficient assignment of any interest in any devices, improvements, or inventions or any applications for patents thereon in connection with the mechanical safetifying of elevators, heretofore invented or devised by said defendant Purcell while in plaintiff's employment." That judgment was appealed to this court, and was affirmed. See 185 App. Div. 888, 171 N. Y. Supp. 1099. At the time of the trial of the action defendant Purcell had made application for letters patent covering about 15 claims, 2 of which were allowed, and 13 of which were disallowed, because of lack of novelty. The defendants, thereupon, have made application for a new trial on the ground of newly discovered evidence, or for a modification of the judgment, so that the defendant shall not be restrained from using the devices made by Purcell, upon which patents were refused for lack of novelty.

[1] It will be noticed that this agreement is not an agreement to refrain from divulging any secret process of the plaintiff, but is an agreement to assign to the plaintiff all inventions or devices which he may have made theretofore or which he may thereafter make while in the plaintiff's employ. This clearly gives to the plaintiff the right to an assignment of any invention or device which is patentable, and even to an assignment of any application which had not been acted upon by the Patent Office. But an assigment of a device which is not patentable would give to the plaintiff no rights, and in respect to these elevators, while the devices are subject to inspection and can be seen by any person who should be interested to inspect them, the disclosure to another party of the nature of that device, or the subsequent use