Adams v. Turner , 73 Conn. 38 ( 1900 )

One of the important questions in this case is whether the words "new and useful improvements," in the written contract, include improvements in Howe's machine to be invented by him after the execution of the contract, or only those then actually embodied in the machine, and those then existing in his mind. The plaintiff contends that only the latter kind are included, while the defendant contends that the former as well as the latter kind are included. If this question can be answered in favor of the plaintiff's contention from an inspection of the contract itself, it will dispose of most of the questions in the case; and we are of opinion that it can be so answered.

In the written contract Howe agrees (1) to make application in certain foreign countries as assignor of the defendant, for letters patent "for certain new and useful improvements in hat pouncing or finishing machines"; (2) to execute any other writings which may be necessary to transfer to the defendant any foreign patent obtained on such application; (3) to furnish to the defendant "a complete set of blue-print drawings" of the foreign patents so applied for; (4) to confer upon the defendant "the sole and exclusive privilege to build said machines" in this country for export to foreign countries.

For these things the defendant agrees to pay to Howe $5,500, in effect as follows: one half at the date of the contract, and the other half, part within one year and the remainder at the end of one year from the date of the contract.

All that Howe agrees to do under the contract clearly relates, we think, to improvements existing and known to the parties when the contract was made, and not to those thereafter to be invented.

The applications he is to make for foreign patents are clearly such as can be made substantially at once after the date of the contract, for he is to make them at once as assignor of the defendant, and the parties contemplated that most, if not all, of the foreign patents would be issued within one year from the date of the contract; and such applications could be made only for then existing improvements and inventions, and not for inventions to be made in the indefinite future. He is to furnish "a complete set" of blue-print drawings of the improvements described in said applications, and to do this within the year, and this could not be done as complete performance if the agreement included improvements thereafter to be invented at any time.

He agrees absolutely to confer upon the defendant a certain "sole and exclusive privilege," and this clearly refers to a then existing right in Howe to confer such a privilege, and not to any right of this kind which he may chance to possess in the future.

Then, again, all that Howe is to do under the contract is to be, or may be, by him done within one year or a much shorter time from its date. His performance within that time is full performance, and entitles him to all the money due on the contract; and this could not be true if the contract covers any and all improvements to be invented at any time after its date. In short, the language of the contract clearly applies only to improvements existing when it was executed, and if it was the intention of the parties to cover after inventions as well, they have utterly failed to express that intention.

The contract itself, read as a whole, clearly shows that Howe agreed to sell, and the defendant agreed to buy, rights which Howe then possessed to improvements which then actually existed. Had the parties intended to include future inventions, they could easily have said so, and the fact that they have not said so is conclusive against the defendant's claim.

It thus appears that the words "new and useful improvements" in this contract, when read in connection with the rest of it, and without the aid of extrinsic evidence, mean actually existing improvements, and that their meaning in this respect is neither ambiguous nor uncertain.

Under such circumstances the evidence extrinsic to the writing, offered to show that the parties attached a different meaning to the words in question than the one expressed in the writing, was properly excluded, for it was both unnecessary and immaterial; it was unnecessary, because the writing itself is the primary evidence of what the parties meant, and if that of itself clearly shows what they meant there is no need of resorting to the inferior evidence; it was immaterial, because the meaning expressed in the writing as ascertained from the writing itself is controlling and must prevail over any meaning that could be established by extrinsic evidence.

It is only in cases where the words of the writing are, when read in connection with the entire writing, ambiguous or of doubtful import, that resort can be had in aid of their interpretation to the kind of extrinsic evidence which was offered and excluded in this case. Hall v. Rand, 8 Conn. 560; GlendaleWoolen Co. v. Protection Ins. Co., 21 id. 19, 37; WoodburySavings Bank v. Charter Oak Ins. Co., 29 id. 374, 381;Bailey v. Close, 37 id. 408, 411; Hotchkiss v. Higgins, 52 id. 205, 213; West Haven Water Co. v. Redfield, 58 id. 39, 40.

The court did not err in sustaining the demurrer to the second defense. The written contract appears to be, and for aught that appears to the contrary was intended to be, the final memorial of the agreement of the parties with respect to the improved hat machine, and the rights which the defendant was to acquire in it.

The second defense sets up an antecedent oral agreement, relating to the same matters covered by the written agreement, and utterly inconsistent with the terms of the latter. By the written agreement Howe is to have the $5,500 if he performs his part of that agreement, while by the oral agreement he is not to have this same money unless he performs his part of the written agreement and much more; by the former he is to have his money whether his machine is capable of "pouncing" hats in the English manner or not, while by the latter he is not to have it unless he makes it capable of doing this.

In short, the two agreements cover the same matters, and are so inconsistent that they cannot stand together. Under these circumstances the defendant cannot avail himself of the oral agreement, and the demurrer to the defense setting it up was properly sustained. Beard v. Boylan, 59 Conn. 181.

With reference to the general objections made by the defendant to certain answers of the witness Newman, and to certain evidence given by the defendant upon his cross-examination, it is sufficient to say, that upon the record it is not clear that the court erred in overruling the objections and admitting the evidence, but that if it did, the error is not such as to warrant a new trial.

The claim made by the defendant that the plaintiff had failed to prove any grant by Howe to the defendant of "the sole and exclusive privilege" to build the Howe machine for export, is not warranted upon the facts found. He offered to convey such right to the defendant, and has always been ready to do so, but the defendant refused to receive such conveyance, and such tender, upon the facts in this case, must be regarded equivalent to performance. As a general rule "if he who is to be benefited by another's performing his agreement, is the occasion why it is not carried into execution, the party bound to performance will be in the same condition as if the agreement had been literally fulfilled."Champion v. Hartshorne, 9 Conn. 564, 568.

The defendant in this case made a motion to the trial judge for a correction of the finding, and an application to this court for a rectification of the record.^* The finding as made presented fairly and fully all the facts necessary for presenting before this court every question which the defendant could properly present upon this appeal, and the motion and the application were alike unnecessary. Taking this view of them it is unnecessary to say more about them here.

There is no error.

In this opinion the other judges concurred.