Davis v. Tingley

Citations

• 2 Monag. 54
• 1889 Pa. LEXIS 1349

Syllabus

<p>Davis and Tingley, in 1868, by a written agreement, agreed to form a partnership to manufacture and sell, under their joint patent-right, .a contracting band for casks. It was stated in the agreement that Tingley “ has recently added ” a revolving ice-cream machine, and that, in view of this important addition, Davis agrees to furnish $600, free of interest, as additional capital for the business. Otherwise they were to share equally the profits and losses. It was also stipulated that Davis should act as a silent partner, and that Tingley should carry on the business, and, further, do the mechanical work of the shop for a named compensation. In 1871, Davis and Tingley granted to Blatchley the exclusive right to manufacture an ice-cream machine, and the exclusive right to use the contracting bands in such manufacture, upon the payment of a royalty to “Tingley or his assigns.” In an action by Davis’s administrator, against Tingley, in 1888, to recover one-half of the royalties paid to Tingley by Blatchley, Tingley filed an affidavit of defence in which he averred that the agreement was never carried out; that $600 was not furnished by Davis; that the ice-cream freezer was never added ; that the expression “ has recently added ” was a mistake ; that the machine granted to Blatchley was not the same machine mentioned in the partnership articles ; and that Davis had no interest in the machine granted to Blatchley. The court discharged a rule for judgment for want of a sufficient affidavit of defence. Held, not to be error.</p>