Jenkins v. Abbotts

Jenkins v. Abbotts.

The plaintiff, by a memorandum in writing, sold to the defendants the right to lay or put down concrete paving within a certain territory for a term of years, the defendants agreeing to pay a royalty of eight cents for each square yard of paving so put down by them. The only right the plaintiff owned was a right under a patent, which, as a patent, was worthless. Held, that the agreement was without consideration, and that the plaintiff could not maintain an action against the defendants to recover the sum agreed to be paid as royalty.

Assumpsit, commenced December 4, 1872, upon a written agreement made on the fifteenth day of October, 1870, by which “ said'Joel Jenkins agrees to let, and the said N. Abbott & Son agree to lease, for the term of two years from the fifteenth day of November, 1870, all the right and privilege of laying or putting down concrete paving in the town of West Roxbury, Mass., in consideration of the sum of eight cents per square yard royalty, to be paid to the said Joel Jenkins or his assigns, to be paid on the first Monday of each month for all that has been put down the month previous to said Monday. Said N. Abbott & Son shall return to said Joel Jenkins a monthly statement of all persons’ names that have received concrete, with a correct amount of the number of yards to each and every person named therein. The said Abbott & Son are to carry on the business under the name and sign of N. Abbott & Son, and furnish everything relating to the business in the shape of money, labor, stock, and tools, and all expenses pertaining to the business, without any expense or liability to the said Joel Jenkins or his assigns. If the business lies idle, and no returns or compensation made to the said Joel Jenkins for the space of time, to witness, forty days during the months of May, June, July, August, September, October, and November of each year, then this contract shall become null and void, and the said Abbott & Son shall relinquish all claims to the business, and turn the same over to Joel Jenkins without any expense to him, and forfeit all rights to work in the same business in the said town of Roxbury for the space of time mentioned within, viz., two years from date.” At the time this agreement was made, the plaintiff w'as engaged in laying what was known as Scrimshaw’s patent concrete paving in West Roxbury, and had been engaged in that business at that place for about one year, having, under date of July 19, 1869, received a conveyance under seal from Charles W. Lyman, Gilbert S. Foster, and Nelson Abbott of all their right, title, and interest in the above named invention, as secured to George Scrimshaw, for the towns of West Roxbury and Hyde Park, and paid them therefor the sum of eleven hundred dollars. Nelson Abbott, one of the above grantors, became, was, and is the active partner in the firm of N. Abbott & Son, the defendants in this action, to whom the before recited lease was made. All the right and title said Jenkins has or ever had was derived from the above named grantors, which right and title was by him reconveyed by the lease in question, as to the town of West Roxbury. Tne Scrimshaw patent, as a patent, is worthless. The defendants, during the summer of 1871, carried out the provisions of the lease with full knowledge that said patent was worthless, and that other persons were doing the same business in said town. During the second season under said lease, the defendants carried on the business mentioned, but made no return according to the lease, and paid no royalty according to the terms of the same, and this suit is brought to recover damages therefor. For the purposes of this case, and no other, the said parties agree to the above statement of facts, each reserving the right to go to the jury on any question of fact by them deemed material.

Morrison, Stanley Siland, for the plaintiff.

Marshall Qhase, for the defendants.