Majority
p. 57Allah C. Dalzell, App’lt, v. The Fahy’s Watch Case Company, Resp’t. (New York Superior Court, General Term, Filed January 11, 1892.)
Headnote
1. Pleading—Conditions precedent.A general allegation of the performance of conditions precedent will not he deemed to embrace matter as to which the plaintiff has specifically pleaded.
2. Same.
In an action to enforce performance of the consideration for an agreement by which plaintiff was to assign to defendant all his right, title and interest in all inventions and letters patent on request, the complaint al
p. 58Appeal from interlocutory judgment sustaining demurrer to-the complaint The following is the opinion at special term: Sedgwick, Ch. J.—The demurrer should be sustained on the following grounds: The complaint does not show the performance of the agreement on the plaintiff’s part which was to be the consideration of the obligations of defendants on which the action was brought. It is as follows: “ The said Allan 0. Dalzell hereby agrees to assign, etc., all the right, title and interest in all inventions and letters patent, etc., in consideration of which the said Fahy’s Watch Case Company hereby agrees, etc., etc.” There is-no allegation of any assignment of inventions. The condition of the obligation to assign was to be a request in writing to Dalzell so to assign said letters patent. "Upon such request being made as to letters patent-, Dalzell was to assign inventions as well as patents. The complaint does not sufficiently allege that the letters patent and inventions which the plaintiff had procured or made at the time of the alleged assignment were assigned. The averment of being the “ same letters patent mentioned in the contract” may be descriptive of the letters patent said to have been assigned, but does not express or imply that such letters were all that the plaintiff had procured at the time of the supposed assignment The averments as to assignments by plaintiff are not sufficient. They are that “On, etc., plaintiff did duly assign, etc., unto defendant or for its use and at its request the letters patent aforesaid.” The legal effect of a written instrument or of a verbal transfer may be sufficient without setting forth the words of the assignment or transfer. On the face of the complaint such legal effects are not averred, but it is stated to be to the defendant, or if not to it, then to its use. The branches of the alternative are not identical. Assuming' that the transfer was to the use of defendant even if requested, that is not by the contract set forth the assignment that was to be made. The statement that “ it was under and by virtue of said annexed' contract” is contradicted by the face of that contract, unless facts are supposed, which are not set forth, which would make a transfer to use a compliance with the terms of the contract. Otherwise there would be an expression of opinion by the complaint as to-the transfer for the use being made under and by virtue of the contract The general allegation of the performance of conditions precedent are not to be deemed to embrace matters as to which the plaintiff has specifically pleaded, even if the payment of consideration and the transfer are conditions precedent within the meaning of § 533 of the Code.
leged that plaintiff “ did duly assign unto defendant or to its use and at its-. request the letters patent aforésaid.” Held, insufficient in not alleging an assignment of the inventions also, and in stating the fact as to the assignment in the alternative.
Judgment for defendant that demurrer be sustained, with leave to amend on payment of costs of demurrer.
Wilber & Oldham, for app’lt; Wetmore & Jenner, for resp’t.
The judgment should be affirmed, with costs,upon the opinion rendered by the learned chief judge at special term, with leave, however, to the plaintiff to amend upon payment of costs.
Freedman, Mo Ad am and Gtldersleeve, JJ., concur.