Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-11-25

IIol tHITletll years lIOfl ln3t date
reserving to itself the right to
manufacture and sell not exceeding
$4,000 cases of sardines per packing
season, and excepting the right and
license before then granted to the
William Underwood Co., for which
the Seacoast Packing Co., was to nav
the plaintiff five thousand dollars per
annum, the payments to be due and
payable on April list of each year.
This contract was conditional upon
the continuance of the above
mentioned agreements between the
plaintiff and Max Ans.
April 6, 1908, the Seacoast Packing
Co, assigned to the Seacoast Canning
Co, the defendant, all its rights i'm. TO
and under all the patents and pro-
cesses it had acquired from the
plaintiff, and the Canning Co. as
sumed all the obligations of the Sea-
coast Packing Co, under their con-
tract with plaintiff.
| In April 1902, the Seacoast Co.
paid the rental of five thousand dol
lars to the plaintiff, and in April 1909
the Canning Co. the defendant. paid
the like sum to the plaintiff for that
year. 1t has not paid the rental that
fell due April /, 1904, and this suit is
brought for its recovery.
| 1t is not denied that by the terms of
! the contract five thousand dollars
became due April /, 1904, and that
the Canning Go. is liable therefor,
unless the defense set up shall prevail
as to the whole or part Of the amount.
1t is claimed that the plaintiffs in
the autumn of 1903 abandoned the
processes under the patents" and
thereby inyalidated the original con-
| tract with Max Ans, and that as the
continued obligation of the defendant
depended upon the continuance of the
Max Ans contract, the defendant is
relieved from liability. The evidence
relied upon to sustain this claim is
that in the fall of 1903 the plaintiff
found that one of the machines
covered by one or more of the patents.
called liner, did its work imper-
fectly, and for that reason abandoned
its use, and returned the liners to
Max Ans in expectation of receiving
improved liners. This necessitated an
abandonment OF the use of the com
pound which was applied by the
iihNi. Dot II IlluSt ne ODSeGNeu llldt
the liner was only one of the Ans
patented machines used by plaintiff
All the others were retained and kept
in use by the plaintiffs. The plain
tiffs gave no notice to Max Ans of
any claim to be relieved of it's con-
tract with him on this account. and
took no action looking to cancellation
Of their agreement with him, and that
in fact no cancellation or interruption
OF that agreement occurred. There
WAS no obligation of plaintiffs to use
the compound" or the liner. It's
dis-use therefore did not authorize a
cancellation of the contract. Nothing
but an entire abandonment of all
machines and processes under all the
patents authorized the plaintiff to
cancel its contract, and receive back
the consideration, as provided i'm the
seventh article of the agreement
between plaintiff and Max Ans, dated
December Z, 1900. No such abandon
ment ever occurred. That contract,
therefore, remained in force. This
defense therefore fails
There is another ground of defense.
The assignment from plaintiff to the
SeacOaSt Co., and the agreement be-
tween the parties contained the follow
ing provisions:
1t is further understood and agreed
that If anyone except the parties here
to. as expressly authorized hereby,
manufacture i'll the State of Maine
either Sardine cans, or machinery for
making the same. which comes within
the inventions set forth in the above
named letters patent, or causes to be
brought into the State of Maine sardine
cans, or machinery embodying the in
ventIonS covered by the above named
letters patent. then the said Seacoast
Company shall have the right to cancel
this agreement upon giving to the said
Globe Company thirty (3W days writ
ten notice of its election to do So"
1t should be observed that this pro-
vision relates to unauthorized acts of
third parties, infringing upon the pa
fonts.
Tie Globe Company does not cove
nant that such infringemcnts shall not
occur. but authorizes the Seacoast Co..
to cancel. if they do occur, and it
elects 50 to do.
Tho rental became due April T. 1904.
| Prior 10 that time it is not claimed that
| any infringement of the patents had
occurred. But the evidence shows that
| in July, 1901. the Robbinston Packing
| Co. at PobbinstOr, Maine installed and
| afterWard used canning machines
| which are covered by the patents as
| Signed to the Seacoast Co For this in
| lringement Of defendants exclusive
right it had its remedy in the courts
| for prevention and damages
| 1t does. not appear that such use Of
| the patented inventions as was had by
| the Robbinston Co, caused any injury
| to tie defendant. In fact. it may have
been benefited as it afforded the de-
| PENDANT ground for termination of the
| contract and avoidance of payment Of
| rental for the succeeding ten years Of
| the contract time, of which it promptly
! awaited itself, by its written notice Of
| september !. 1904. which operated a
| termination thereof in thirty days af-
ter that date, under the provision in
| the contract. A prior notice of Feb
1uary 23rd was Intellectual. as at that
time the infringement had not oc-
| CURED, nor any condition of things
| which authorized termination of the