Schwarzenbach v. Odorless Excavating Apparatus Co.

Ritchie, J., delivered the opinion of the Court. This is an action for money had and received. The plaintiff having withdrawn all the counts of his declaration but the ninth, the defendant demurred, and the demurrer being sustained, the plaintiff appealed. The cause of action is, in substance, that the defendant being possessed of a patent, originally issued to Henry C. Bull and another jjerson, in 1871, for the cleaning of privies, and of a patent re-issued in 1876, claiming to contain combinations omitted by mistake in said original patent of 1871, although embraced in the specifications filed therefor, and which letters patent and specifications were recorded in the office of the Commissioner of Patents in Washington; the plaintiff relying wholly on the representations of the defendant, that the re-issued patent was valid and did contain only matters contained in the said original specifications, and being wholly ignorant of the contents of the said letters patent and specifications, did agree with defendant to pay it the sum of twenty-five cents for every load of excrement excavated by the machine he then used, which was constructed under patents issued to Scarf and Frazier in 1875, and did pay defendant the sum of six hundred and seventy-nine dollars and thirty-three cents; but that the said re-issued patent of defendant was wholly void by reason of containing improvements not in the specifications of the letters patent of 1871, and made for the purpose of covering improvements which had been patented to Scarf and Frazier; whereby the consideration of the contract wholly ³⁸ failed, to the great loss and injury of the plaintiff, who had demanded repayment of the sum aforementioned but which the defendant had refused to make.

It is not alleged that the representations of defendant were made with fraudulent intent, or that it did not correctly state the actual contents of the patents and specifications; the misrepresentations complained of, were -therefore virtually of the legal effect of the papers, or in other words, were of the purport that the re-issued patent was valid as against those of Scarf and Frazier, and that the latter infringed the former ; which infringement is denied in the narr. Whilst this denial or averment of the narr. is to be taken as true in passing upon the demurer; it is shown to be so in fact from the case of Clements against this defendant in 109 U. S. 641 , to which we were referred by both sides in the argument. From this case, decided in January, 1884, it appears that the defendant had obtained below in the United States Circuit Court a decree for injunction and damages against Clements on the ground that its re-issued patent, in question in the present case, had been infringed by him in operating under the Scarf and Frazier patents; but which decree was reversed on appeal by the Supreme Court. From a fair construction of the narr. with which that case is