Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-06-25
OP MON
BY Btlknap, J.

Action to collect a call upon a subscrlI- |
ton TO plaintiffs stock.
In his answer defendant, among other
things. sets up as an equitable defense TO
the action, that during the month of
February, 1893, and prior to the 25;h day
of March, John p. Fuulks falsely repre-
scented to the defendant and others that
he WAS the inventor and the owner of a
certain patent for an iini rovement IN
wind mills. the letters patent of which
had not been iSsu q, but would shortly
be issued. and when issued would cover
all the mechanical features described in
the answer in this case. That defendant
relying upon said representations sub
scribed for certain Number of shares of
the capital stock Of the plaintiff. That
defendant first learned upon the dates
mentioned in the answ err that the letters
patent issued to Foulks and sub>e-
quently assigned to plaintiff d d not en-
brace the mechanical principles claimed
for it by F"ulks in his representations or
in his application for a patent.
At the trial the District Court found
that upon March 8, 1892. Mr.. Foulks filed
provement in air motors and appointed
Dewey & Company of San Franci>co
California, and A. II. Evans Il Company
of Washington, ID. c., his attorneys to
prosecute the same, and to alter or amend
his specifications, to receive the letters
patent when issued, and to transact al
business in the Patent Office connected
Herewith. That upon December p, 1892
the attorneys of Mr.. Foulks transmitte,
to him a copy of a notice from the Paten
Off e to the effect that his application TO
patent had been examined an allow ed
That while his application was pending
several amendments ere made 10y hi
attorneys. but no reference thereto w"
made by the notice. and Mr.. FoulkS Wa
not Informed of the particulars in whicl
his application had been amended unit
after the patent was granted. 1t was ais
found that until subsequent to July l;
1893, Mr.. Foulks believed, and did IL"
have any reason for no, believing hat hi
application for patent had not been IA
lowed 10y the Patent Office as original
made and filed; that he believed his req
reservations to the defendant as to tn
out any Knowledge that they were untru
and without intent to deceive. 1t WA
also found that the contents of the patei
mate, tally differed from the represent,
tions made concerning it by Mr.. Foull
Upon these facts the question is wheth,
or not the representations were fraudl
lent in law.
The notification to Mr.. FoulkS that h
application had been approved should
cons idered in connection with his autl
OriZation of Dewey Il Company of S.,
Francisco and \. IL. Evans Il COmpaI
of Washington to alter or amend ii
specifications. Under the authority give
his attorneys no one could have know
prior to final action by the Patent Oil,
the extent to which the Speciticatio
had been altered or amended. He knt
that amendments had been made. TE
fact may well have excited his inqull
and investigation would have readily r
vealea the fact that the Patent Office h
determined that Mr.. Foulks' appicati
infringed upon the Kirk wood pate
and that his attorneys had disclained
rights conflicting with it. Instead
making the inquiry which the circu
stances suggested, he made no effort
inform himself further. Afterwa
when a patent was allowed instead
ascertaining the extent to which his Sp