CAUSES ARGUED AND DETERMINED IN THE SUPERIOR COURT OF THE CITY OF NEW YORK AT GENERAL TERM. GEORGE W. HART, PLAINTIFF AND RESPONDENT, V. DENNIS M. FITCH, AS SURVIVING EXECUTOR OF THE LAST WILL and TESTAMENT OF STEPHEN A. DENNIS, DECEASED, DEFENDANT AND APPELLANT. Under a contract whereby D., as the owner of one half of a patent, in consideration of the assignment to him of another quarter by the inventor, agreed with said inventor that he would proceed, with funds to be furnished by him, with the construction and completion of a machine according to the plan of said patent, and put the same into operation; and that after such machine had been made and completed, the same should be used and applied to the promotion of the formation of a stock company, the capital of which was not specified, in which D.'s interest in the patent should be incorporated as a part of the capital stock, and that whatever stock in said company, when formed, should be represented by the quarter of the patent still remaining the property of the inventor, should be transferred to said inventor free of all assessment, charge, or expense, etc.; Held that D. was bound to put his interest in the patent into the company under all circumstances, but the inventor might elect whether he would do so or not; that the construction and completion of the machine was a condition precedent to the formation of the company; that the inventor had a right to refuse his assent to the formation of a company, as long as this condition remained unperformed; that after the organization of a company without such previous performance and the refusal of the inventor to join, which refusal resulted in the formation of the company upon D.'s Statement of the Case. three-quarters interest in the patent, the inventor could not, after all the stock had been issued and disposed of, change his mind and insist to come in, but that he might maintain an action for the recovery of the damages sustained by him generally in consequence of D.'s breach of the contract. Before MONELL, JONES, and FREEDMAN, JJ. [Decided December 4, 1869.] Appeal from a judgment entered upon the report of a referee. The action was to recover damages for a breach of two writ ten contracts. The referee found the following facts: That the defendant's testator made the following agreement: "Whereas, Carmi Hart has, this day, by instrument in writing bearing even date herewith, transferred and assigned to me, Stephen A. Dennis, the one undivided equal fourth part of certain letters patent of the United States, issued to said Hart for a machine for cutting veneers: Now, in consideration thereof, and other considerations received, to my full satisfaction, I, the said Stephen A. Dennis, do hereby covenant and agree with said Hart, that in case certain contemplated arrangements agreed upon by and between me, the said Dennis, and Edward White, for forming and organizing a stock company, under the laws of the State of New York, shall not be completed and successfully carried out, which said company is to have the said letters patent and certain other property for its capital, that in such case the said Dennis will proceed with the construction and completion. of a large machine for cutting veneers, according to the plan described in the said letters patent, and will put the same into operation, and that he will appropriate and expend ten thousand dollars ($10,000), if necessary, for such object; and that, after such machine is made and completed, the same shall be used and applied to the promotion of the formation of a stock company, in which the interest of the said Dennis in said letters patent shall be incorporated as a part of the capital stock; and it is understood and agreed, on the part of said Dennis, that whatever stock in the said company, now or hereafter to be formed, |
