Court of Canada(1), dismissing the plaintiffs', appellants', action with costs.
The action was for an alleged infringement of a Canadian patent of invention held by the plaintiffs for improvements in weather strips and guides for windows. It appeared that the defendants had manufactured metallic weather strips in Canada which were more nearly similar to those described in an American patent of a date prior to the Canadian patent owned by the plaintiffs than it was to any of the forms shewn and described in the Canadian patent. The court below held that, if the plaintiffs' patent was good, it was good only for the forms of weather strips particularly specified therein of which the evidence failed to shew any infringement by the defendants, and the action was dismissed with costs. After hearing counsel on behalf of the appellants and without calling upon counsel for the respondents, the Supreme Court of Canada dismissed the appeal with costs.
Masten for the appellants.
Staunton K.O. and Logie for the respondents. New Brunswick refusing, by equal division, to set aside a verdict for the plaintiffs and order a new trial.
The W. H. Thorne & Co. brought action to recover from Bustin the price of goods sold on his alleged guarantee to one Segee. Bustin had given a guarantee to pay for goods so sold to the extent of $1,000 and had paid over $900, thereunder. The first of the goods sued for were supplied some six months after those paid for by Bustin had been delivered and were charged in plaintiffs' books to Segee to whom all the accounts were rendered.
On the trial the secretary of the W. H. Thorne & Co. swore that Bustin had authorized the further supply to Segee on his account and had requested that they be charged to Segee to keep them separate from his own account with the company.
This the defendant denied and testified that he had notified the company that he would no longer be responsible but neither the notice nor a copy of it was produced nor any proof except a stenographer's notes on. dictation by defendant.
The jury answered questions submitted by both counsel and the court on which a verdict was entered for the plaintiff company for the amount claimed. Motion was made for a new trial on numerous grounds of improper reception and rejection of evidence, misw. direction and improper direction and remarks by the & presiding judge. The court being equally divided the motion for a new trial failed and the defendant appealed to this court.
The formal rule or judgment appealed against drawn up by the clerk of the court on the motion for new trial, after the formal portion as to hearing counsel, stated that "the court having taken time to consider, and being equally divided, the said rule drops and the verdict entered for the plaintiff on the trial stands."
On the appeal being called Hazen K.O. and H. Harrison for the respondents moved to quash on the ground that the said formal rule or order was not a judgment from which an appeal would lie.
Pugsley K.O., Attorney-General for New Brunswick, was not called upon to support the jurisdiction of the court and the motion to quash was overruled. Counsel were then heard on the merits after which the court gave judgment ordering a new trial, on the ground that the charge of the trial judge to the jury shewed passion and bias and was improper. Davies J. dissented as follows:
J. (dissenting).-I have carefully read the charge to the jury of Chief Justice Tuck and while some remarks relating to the several counsel engaged in the case might have been better unsaid I cannot find anything in the charge taken as a whole to justify a new trial being granted.
w.
It is not now open to the Attorney-General to & complain that a pyrticular question was not put to J the jury relating to the delivery of a letter from the defendant to the plaintiff company's manager terminating any further liability on his part for goods supplied to one Segee. It was open to him to have had the question put at the trial. He did not elect to do so and cannot now complain of its not having been put.
The evidence while conflicting was fully sufficient to justify the findings and the findings ample enough to justify the entering of the verdict.
I would dismiss the appeal.
Appeal allowed with costs.