Geist v. Stier

Opinion,

Me. Justice Stebeett :

This suit was brought to recover the amount of two promissory notes made by defendant to the order of plaintiff, one for 1550, at one year from October 25, 1880, and the other for $250, at six months from October 30, 1880, both with interest. The making and delivery of the notes being admitted by defendant, they were put in evidence by the plaintiff, and thus a clear prima facie case in his favor was made out.

In substance, the defence was that the notes were given for a certain business, stock, and fixtures sold by plaintiff to defendant, the principal value of which business was a peculiar process of etching on glass; that, a few months after his purchase, defendant was notified by a person who claimed to be the patentee of said process, to discontinue using the same, or he would “be dealt with according to law;” and, thereupon he informed plaintiff of the fact that he had been so notified, but the latter neglected to do anything, and defendant was obliged to give up said business, because its only value consisted in the said process of etching on glass, etc.

For the purpose of maintaining the. defence thus alleged, the defendant gave in evidence two letters, notifying him to cease using said process, or suit would be brought, etc. The admission of these letters, and the use made of them by the learned judge in his charge, constitute the subjects of complaint in the first and second specifications, respectively.

There was no evidence tending to show that any suit was ever brought by the alleged patentee, or any further steps taken by him or any one else, to deter defendant from using said process ; nor was there a particle of evidence to show that the said process was ever patented, or even patentable. The only evidence, bearing on that subject, tended to show that the process had been in general use, and was, therefore, not even patentable. The sum and substance of defendant’s evidence, in relation to the process, is that he Avas notified to cease using it and threatened with suit if he did not do so.

Standing alone, the letters above referred to, and quoted at length in the first specification, were incompetent; and there appears to be no testimony in the cause connecting them with anything that would make them competent evidence. In other Avords, as the case stood, it was error to receive them. If they had been followed by evidence showing that the party claiming to have a patent for the process had brought suit, and established his right thereto, the case would have been different; but no such offer of evidence was made, in connection with the letters or otherwise.

Again, the use that was made of the letters by the learned judge in that portion of his charge covered by the second specification was unduly prejudicial to the plaintiff. Referring to the letters, the learned judge said: “ Some time after the purchase by the defendant, a notice was received from a lawyer notifying him to discontinue the process of etching then in use by him ; that he was infringing on a patent. The defendant says he informed Mr. Geist of this notice, but that he did nothing in the matter, and that he could get no satisfaction from him. If Stier’s story is correct, and he was forbidden to carry on the business, and so notified Geist, and he failed to do anything, Stier was not bound to pay. Where a man sells personal property, a horse, merchandise, etc., he is bound to warrant the title. If Mr. Geist undertook to sell this business, he was bound to guarantee the title to what he sold, and, if the title is not good, he is responsible.”

Conceding the correctness of the general proposition that a warranty of the seller’s title is implied in every sale of personal property, where there is no understanding to the contrary, it is not applicable to the facts of this case. At most, the defendant’s right to use the process was challenged, and suit threatened; but no suit was brought, nor was the defendant prevented in any way from continuing to use the process. A purchaser of personal property, in full possession thereof, cannot refuse to pay for it because a third party has asserted a superior title and threatened to bring suit for the recovery of the property or its value. The notice and threat to sue, without more, did not absolve the defendant from his liability to pay his notes.

We think the learned judge also erred in construing the memorandum appended to the receipt, quoted in the third specification. The only purpose of the provision therein contained was to afford additional security to the plaintiff, in case the note was not paid at maturity. All that was intended by the provision was that if defendant did not pay the note at maturity, etc., the plaintiff should have the right to repossess himself of the business, property, fixtures, etc.

Thus far, the questions involved have been considered mainly in the light of the defendant’s testimony. The plaintiff’s version of the transaction is materially different, and should not be ignored in submitting the case to a jury, if it is found necessary to do so. He testified, in substance, that at the instance of the defendant, and as a matter of accommodation to him, he advanced the money and purchased Holtzman’s interest in the business, etc., expressly for defendant, and that the notes in suit were given for the money thus advanced.

The last specification is not sustained, for the reason that it does not appear that the court was requested to give any such instruction; nor was the plaintiff entitled to it, if he had made the request.

Judgment reversed, and a venire facias de novo awarded.