Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-04-22

OPINION BY MR.. JUSTICE cox. DELIVERED
APRIL 10. 1898
The principal! facts relied in this are as fol-
lows:
On the l4th of June. 1887. DR.. Sanche executed an
assignment, which will consider at large here
after. In which. after recia. to q proposed cor
poration. he says:
hereby transfer all my right, title and interest
In and to all my patents. pending and to be applied
for all manuscripts and drawings relating to said
new means and for the further consideration Of 12S
per centum of the net come from the operations of
said company bind my self. heirs and executors to
transfer to John n. Webb. Birmingham. Ala ;
Timothy Moroney. New Orleans, La. and Cornelius
Doremus, New rieans La. trustees for this pro-
posed company"
The company was then Incorporated. at least &C.
cordinR to the forms of law Whe her the spirit of
the law was complied with o. not. the individuals
who contemplated its organization went through the
forms OF law and secured a certificate of ncorpora-
ton from the Probate Court of jefferson county Ala
bama. The company having been incorporated in
this manner. then. on the 9th day of October these
trustees. Doremus. Moroney and Webb. executed an
instrument in which, after certain recitals. they
DO hereby sell. convey, assign and transfer. and
BY these presents have hereby sold, conveyed, as
signed and transferred all right title and
In and to all patents pending and to be applied for, all
manuscripts and drawings relating to the discov-
cries Of Dr. Hercules Sanche and conveyed by him to
u.s. as trustees. to the said Eectroibration Company
party Of the second part. and il assigns forever"
Then the corporation proceeded to act and to
facturs and sell these instruments and devices which
embodied the discoveries of Dr. Sanche. They used
at rst as trade mark the term ElectToibrator but
they found that too long. and in December. 1887 Dr.
Sanche himself wrote to them and suggested TO them
to change the name to ''ELECTROPOISE." He
says:
'Kyou approve and advise the oh ange write me
at once and also advise Messrs. Mum Co. that if
necessary they change the name in our applications
before too late. Believing that you and ali concerned
will approve begin to write. using the appela-
tion until 1t is re ected."
Thereafter the instruments were marked with the
name 'Electropoise;'' DR.. Sanche proceeded to act
for tine company and supplied the instruments with
the badge OF the company. indicating the ownership
to be in the corpora ion and bear the name Elec-
tropoise " and a. late June 10. 1883. nearly two
years after the organization of the company he sug
Fested to them that this trade mark be registered He
said:
IF it cannot be done in cor Dorate NAME have
it done In my name and send me the assignments to
sign"
1t appears. therefore. that the company, with his
consent. had adopted and used this name as trade
mark. just after that he had difference with the
company and undertook to hts connection with
them. On the 10Th of November 1889. the company
filed an application to we the trade mark electro
poise" registered. DR.. Sanche had made an applica.
ton to register tie name as label! on the same
day the company made its application register te
expression as trade mark. but made suisse
quent application to register the name
as trade mark. BY inauvereuce. as
appears. ana in consequence of overlooking the fact
that an application then pending on the part of
the corpor a ion, the word time registered
IN Sanches name as trade mark, but. upon discov-
cry that this had been done while the application Of
tGe corporation was pending. all in e-.erence de-
ciared good deal If testimony was taken and the
proc eding ted in this Eecropoise" beiuz
registered as the trade mark OF the company Octo
Der D. 1892
These facts undoubtedly think. show prima
race right in the company to the trade mara a right
which is to he protected the defendant shows
some reason to the con rary.
The first ground of defense presented by the de-
PENDANT is that the company have violated their con-
tract with him in several particulars Ihe first
alleged violation is that tie contract with him CON
temp,ated tina. he to receive 800 900 OF stock
paid up and nonas essable. His assignment does rot
use that EXPIRE ssion.
He says:
I'm cons. Iteration Of the premises and for the fur
tner cCnsideralon OF 70 cent of the capital stock
of said COMPANY" 6c,
But when the trustees made the assignment Of the
invention itself to the company, they conveyed
In consideration of 10. 600 shares of the capital
stock OF the company. fully paid up non assess
able"
Sanche's share was one-quarter; we may assume
that lie was to get onequarer of the stock paid up
and non-assess ible. But his instruction Of that
H.,
was incumbent upon these other gentlemen to pay
into the company's treasury $2:IO 900 in order 10
make lis one-iourth paid np stock. ;nat it would
represent tha value i'll the treasury But as ne SAYS
instead OF doing that they merely put tine invention
itself That is the meaning of this az cement ac-
cording to my understanding Of it, understand If
to mean that the sock is fully paid up
aole i. he subscriber Is to lie considered
bound to ray up anything. His subscription ooiisa-
ton between him and the company is TO lie cons;d-
cred as fulfilled. That is all
When it is DESIGNATED to b. -assessable it means
that in addition there further n.s TO be
levied the stock for the PURPOSES of the COMPANY
1t seems perfectly DreDoserOus to suppose that these
gentlemen were to $3.50 600 into the treasury in
order to give DR.. Sanche that value stock for
an invention which vas entirely untried ard hardly
perfected at the time. But in addition tina. the
elusive answer to this is. that Salche himself sub
scribed for this S210. 900 in stock. 1t is not sto,
which the other gentlemen to subscribe for An
pay up in money and then transfer him. but iii
stock which he originally was a subscriber Co., II
subscribed for shares to be paid 6y cOnuet
Gnce to said company Of his Hndirided one-tourth az
terest IN all these deuess. DC. think that disoses
the objection at his stock not paid up stock in
the sense Of the contract.
Then it il further claimed by sanche that sub
stantially. he understood these gentlemen were I.
tyr the other shares of stock in money The argu
ment is that ne had right to suppose that thar
would organize according to the law and under tn.
law they were bound to pay in money or what Wa.
equivalent thereto. be, himself says tina. the in
ventOn not tr ed and of no commercial valre
and yet hs expected that they would pay $3.50 600 in
money fog their three quarters of the stock 1t i'm
probable that they agreed to pay up $3.50 900 I'M
order to give value to his oneQuarter stock II is
trebly improbable that they ever understood they
to pay $780, 900 in money order to give value
to the rest Of the stock and to his In
point Of fact that Is the understanding in
ORGANIZATIONS. conceive. The inventor is ordi.
narily without money credit and his object ia TO
get people to take hold Of his invention who have
money. credit and business ability especially people
who have had experience in promoting and develop
ing invsntons The inventor generally supposes that
there great deal Of money in his invention il he
can get It put upon the market the thing succeeds
1t y expected to pay for itself. 1t il espsr-
| ally supposed that parties whom be takes
| In with him Cor the purpose will advance
| some money. One mssns Of gstttnE money
10 By disposin9 Of the stock. II never II expected
that parties acquiring interest in inventions Of that
sort and putting 1t In part Of the capital stock Of
the corporation should pay In the whole par valus of
the stock in money. And. In fact. such was not. q
It seems to me- the agreement In this case = 10 ap.
sst from the conduet u the dsfsndsnt himself for
In ts paper IN which hs subscybss for his one
fourth intessst n this company tie remaining 500
shares Of the capital stock were divided among the
othsr Subscribers In proportion to their subscrip-
hpps. cd - b fully paid for BY deed Of copvey-
aAes from them Of their undivided thrsequartsrs in
tsssst In other words, In the same Instrument he
| suhscrtbes one-fousth of this iuyeation end the
othsr nshs ef this company subscribe thsi, three.
fovstas, end - y party 10 that fnstrunent much
asthsy ed % 10 esrtv to tbs oct By which they
suhschs thss tasssseusths interest n his iuysetien