Question for jury. 10. As to the patent suit prosecuted in the name of the Owatonna Manufacturing Company, the evidence is sufficient to require submission to the jury of the question whether the prosecution was malicious, and probable cause is not conclusively proven. Letters patent presumption of validity-burden of proof. 11. A patent is presumed valid until the contrary is proven beyond a reasonable doubt, and its issuance, when fairly procured, justifies suit by the patentee for infringement against one using the same device; but, when it is proven that an invention was in use prior to the issuance of the patent, the burden of proof is on the patentee to establish its validity. Prior letters patent- evidence. 12. There is evidence that after commencement of the suit for infringe ment of the "two speed" patent, a conference was had and defendants' attorney showed to the attorney and an officer of the complainants other letters. patent which had been issued prior to the complainants'.. This evidence was insufficient to show that the complainants thereafter continued such suits. with knowledge that their patent was void, in the absence of proof as to the nature of the prior patents which were so produced. Advice of counsel - question for jury. 13. Advice of counsel is a complete defense to an action for malicious. prosecution of a civil action only when it appears that the prosecutor fully and fairly stated all the facts within his knowledge, or which by reasonable diligence he might have learned, to a reputable attorney, and that in bringing the action he, in good faith, acted on the advice given him. The question whether in this case these defendants acted in good faith and in reliance on the advice of their counsel, was, under the evidence, for the jury. Limitation of action-governing statute. 14. A claim for malicious prosecution of a civil action is ruled by Revised Laws, § 4076, subd. 5, allowing six years for commencement of an action for any injury to person or rights not arising on contract and not by § 4078, limiting action for libel, slander, assault, battery, false imprisonment or other tort resulting in personal injury, to two years. Prior action not res judicata. 15. A judgment for defendants in a prior action in the Federal courts to recover treble damages for alleged combination in restraint of trade, in violation of the Sherman Anti-trust Act, was not res judicata of plaintiffs' right to maintain a common-law action for interference with their business. by false representations, threats, and malicious prosecution. Same. 16. Combination in restraint of trade was the gist of the action in the Federal court. It is not the gist of the common-law action. Joint tort. 17. A joint tort may be committed without the existence of any conspiracy or combination in restraint of trade. 18. The false representations charged in this case were all made by officers or agents of the defendant Creamery Package Manufacturing Company. The infringement suit which failed was in the name of the defendant Owatonna Manufacturing Company. There was evidence to go to the jury as to the liability of both defendants, under the rule that all who actively participate in the commission of a tort, or who procure, command, direct, advise, encourage, aid or abet its commission, or who ratify it, are jointly and severally liable even though they act independently or without concert of action or common purpose, provided their acts concur in tending to produce one resulting event. Evidence-verdict excessive. 19. There was evidence that plaintiffs owned some patents. There was none that their value had been destroyed by the alleged wrongs or as to the extent to which it had been injured. There was evidence that plaintiffs owned a manufacturing plant, but none as to the amount it had been damaged. There was evidence that plaintiffs expended time and money in the defense of the infringement suit. The evidence is vague as to the necessity thereof, and there is no evidence of the value of plaintiffs' time. Plaintiffs claim damages for injury to their business and its good will. Their total sales from the inception of this business were less than $8,000, and the total profits less than $3,000. Held, a verdict awarding $57,500 was so excessive as to indicate passion and prejudice. Proof of damage. 20. Damages must be proven with reasonable certainty. To recover damages for injury to property, there must be fair proof of the existence and amount of damage. To recover for expenditure of time and money, there must be evidence of the necessity thereof, and of the value of such time; upon proper proof there may be a recovery for injury to business, its reputation, standing and good will. Such damages must not be speculative and conjectural; yet, where it is certain that damages have accrued to plaintiffs from defendants' wrongful acts, plaintiffs will not be denied a recovery of any damages whatever, solely because of uncertainty as to the amount of damages sustained. Admissible evidence. 21. An exclusive sales contract existing between defendants was admissible to show the relation between them at the time of the acts complained of. The prior contracts between them were immaterial and inadmissible. Inadmissible evidence. 22. Evidence of defendants' prices and profits on churns, and evidence that plaintiffs did not intend to infringe defendants' patents and believed they were not doing so, was inadmissible. Same. 23. A copy of a writing not shown to have emanated from either of the defendants was inadmissible. Same. 24. A judgment of dismissal is not evidence in a subsequent suit between the same parties for the same cause. Election of remedies. 25. A suit on an alleged cause of action that does not in fact exist, is not an election of remedies. Charge to jury erroneous. 26. It was error to instruct the jury that their verdict must be for or against both defendants and that the only question for them to determine was whether or not there was a conspiracy between them to injure plaintiffs. Evidence of collateral facts. 27. A trial court may, in its discretion, permit evidence of collateral facts when of probative value, but it is error to receive such evidence to such an extent as to overshadow the real issues. Charge to jury-new trial. 28. The court began its charge with instructions on punitive damages, and, after withdrawing from the jury plaintiffs' claim to recover for violation of state and Federal laws relating to contracts in restraint of trade, followed with a long discussion of the proper construction of those laws. The charge was so given as to furnish insufficient guidance as to the facts necessary to warrant a recovery or as to the measure or elements of damage. There was such failure to charge on vital issues as entitled defendants to a new trial. Upon petition for reargument. October 31, 1913. Warning against infringement of patent-when privileged - when actionable. 29. Notices of infringement and threats of suit made by one holding or claiming an interest in a patent are qualifiedly privileged. If made by one in good faith and in the honest and reasonable belief that his claims are valid, and in an honest effort to protect them from invasion, he is within his rights and will not be liable therefor, even though his patent prove invalid. But if the patentee is pursuing a course which is calculated to unnecessarily injure another's business, and with the intention of so doing, his conduct will be deemed malicious, and, if his patent fails so that his representations are false, they are actionable. Action in the district court for Steele county by D. E. Virtue and the Owatonna Fanning Mill Company against the Creamery Package Manufacturing Company and the Owatonna Manufacturing Company to recover $165,000 actual damages and $60,000 exemplary damages, in all $225,000. The case was tried before Childress, J., and a jury which rendered a verdict for $57,500 in favor of plaintiffs. From an order denying their separate motions for judgment notwithstanding the verdict or for a new trial, defendants appealed. Reversed and new trial granted. Cohen, Atwater & Shaw, W. A. Sperry and A. C. Paul, for appellants. Harlan E. Leach, for respondents. HALLAM, J. Plaintiffs recovered a verdict. Defendants appeal separately from an order denying their alternative motion for judgment notwithstanding the verdict or for a new trial. Together they make 334 assignments of error. It is hardly to be expected that we will take all of these seriously. We will accordingly refer mainly to those argued in the briefs of counsel. The issues in the case are simple. The Owatonna Fanning Mill Company was incorporated in the early nineties, and has since been engaged in the manufacture of fanning mills and some other farm machinery. Plaintiff Virtue has been the principal factor in the company, financially and otherwise. In 1903 or 1904, Virtue and the company, acting together under an agreement, the details of which are not important, commenced the manufacture of a combined churn and butter worker. They claim that these defendants, conspiring together, wrongfully and maliciously interfered with this business by misrepresentation, threats of litigation, and the malicious prosecution of two patent infringement suits, and by these acts caused substantial damage. This action is brought to recover actual damages, and punitive damages as well. Defendants deny these charges, and for a further defense allege that some of the issues have been determined by previous litigation. These simple issues are presented by pleadings, which, with amendments and exhibits, fill a volume of 526 pages. It is needless to say that such plethora of allegation serves few of the useful purposes of pleadings, which are by statute required, on the part of plaintiff, to make "a plain and concise statement of facts constituting a cause of action, without unnecessary repetition" and on the part of defendant to consist of “a denial of each allegation of the complaint controverted by the defendant, or an averment that he has not knowledge or information. thereof sufficient to form a belief," and "a statement, in ordinary and concise language, of any new matter constituting fense." 2 * * * a de There is evidence tending to prove the following facts: In 1903, the defendant Creamery Package Manufacturing Company owned a patent upon a combined churn and butter worker, known as the "Victor." This machine had, as part of the mechanism for working butter, four rolls located in pairs parallel with the drum. The defendant Owatonna Manufacturing Company was engaged in manufacturing a combined churn and butter worker known as the "Disbrow," under several patents originally procured by one Disbrow. This defendant owned another patent, known as the Howe, Ames & La Bare patent, known also as the "two speed" patent. The merit of the device covered by this patent was that it had a "two speed" gear, so that the churn turned rapidly for making butter, and slowly for working butter. This principle was used in the manufacture of the Disbrow churn. 1 [R. L. 1905, § 4127.] 2 [R. L. 1905, § 4130.] |