The New Ixion Tyre and Cycle Company, Ld. v. Spilsbury would have asserted that he was entitled to that with the 15,000 shares, and I do not see how the Company could have been heard to say that he was not competent to bring it in that form and to prove the collateral agreement for the consideration. So far, therefore, the agreement, in my judgment, was capable of specific performance; so far, therefore, it was the foundation of the title of 5 which the Defendants had notice, and by which, therefore, they were bound. But then there is the other head of the same argument. It is said that the agreement had come to an end, that it had lapsed, and it seems that the Defendants believed that; if they believed it wrongly, it is their misfortune. I think that some of them believed it. They certainly were told by Mr. 10 Walters that it had come to an end. Probably he believed it too; but it is no ground for refusing the Plaintiffs' relief because Mr. Walters said honestly what was not correct in law. Why should it not be performed? The answer is this, the agreement was entered into in June 1896, some thirteen months had elapsed, and no assignment was forthcoming, and, although it was not 15 mentioned, no consideration had been paid, it had not even been part performed, and therefore specific performance might have been resisted on that ground. It might have been said that the agreement had lapsed. That is perfectly true. I am not sure it is not forgotten nowadays when we are very lax about our pleadings, but it is a defence to specific performance that the Plaintiff has not 20 been prompt in coming for relief. I remember, very well, although it was not a case of my own, a suit in which a very learned pleader demurred to a Bill for specific performance merely on the ground that the agreement which it was sought to perform was dated a year before the filing of the Bill, and he succeeded so far as to oblige the Plaintiff to submit to his demurrer and get 25 leave to amend his Bill, because on the face of the Bill originally there was no explanation of the delay which was forthcoming afterwards. That is so, and that is the law still. A man must be prompt, and if he is not prompt he cannot succeed in getting that specific performance which has always been held to be a matter of discretionary jurisdiction. But delay may be explained; 30 and there is no such thing as fatal delay where it can be explained, unless, indeed, time has been made the essence of the contract, and that position has not been waived. It is insisted upon here that the agreement shows that the assignment was meant to be completed and everything was intended to be done within a reasonable time. No doubt that was so, and that was in the con- 35 templation of the parties, but it was perfectly proper by express contract to extend the time, and to waive the right, which otherwise either party would have had, to resist specific performance if not sought within a reasonable time. It is impossible for me now to say whether, if the Ixion Company had commenced proceedings for specific performance at or about the time 40 when this negotiation with the Defendants was taking place, and when they were informed of the agreement, they would have succeeded or failed. I cannot try that action; but, so far as my view of the facts goes, I do say that the Ixion Company would have had a perfect right to insist upon that agreement. It is quite obvious that the performance of the agreement had 45 waited for some little time in consequence of the action which was tried before Mr. Justice Wills. I know from Mr. Walters' own statement in the witnessbox that that action was defended by the Company; they instructed Counsel, and that means that they provided the funds. It is difficult to conceive that when that was going on it would have been competent to Mr. Walters to say "this 50 agreement of ours is entirely at an end; it is quite true you are acting under "the agreement as if you were absolute assignees of my Letters Patent, and I am assenting to your doing so for your own benefit if not for mine, except so "far as I shall receive the consideration, and yet I insist that the agreement is "entirely at an end." I agree entirely that it would have been impossible for 55 him to do so. There are some other facts that point the same way; but, so far 66 66 66 The New Ixion Tyre and Cycle Company, Ld. v. Spilsbury and Others. as I can see, there was nothing in the delay which could not have been explained, and nothing, therefore, which would have been prevented the Ixion Company from insisting on specific performance. As a matter of fact, the agreement was performed. To that the Defendants demur. They say "No, it was an entirely 5 different agreement, there are divers clauses introduced, and variations in the "assignment." But, more than that, in addition to the 15,000 shares, which do not appear in the original agreement to which I have already referred, and I will not say more about, and in addition also to the other odd shares which are not referred to in the assignment any more than in the agreement, but which appear 10 to have been satisfied, 6501. was paid to Mr. Walters, and that makes it a new agreement that was a new provision according to the Defendants' argument. I listened to Mr. Powell's argument on that point with attention, because I think it deserved full attention. If this assignment were really a new assignment, an assignment intended to be in form, but not in truth, in pursuance of the origiral 15 agreement, I should not hesitate to say that the Defendants could not be affected by such an assignment. It would be impossible-it would be morally wrongto allow the Plaintiffs to say :-"We have now obtained an assignment which in "form is in pursuance of the agreement, but which is really something quite "different, and having got that assignment we will defeat the rights of those 20"Defendants who take subject only to an agreement which in fact and in truth "and honesty has not been performed." The question, therefore, is whether those variations of the agreement, and in particular the payment of the 6507., make any difference? Now, as regards the variations of the agreement, I do not attach very much importance to them. 25 It was competent to Mr. Walters and the Ixion Company to frame their assignment in any form which they pleased, to vary the provisions of it, and the conditions of it so long as they did not touch the real substance, which was, of course, an absolute out and out assignment by Wallers to the Company, and that seems to have been done. The variations do not touch the substance. The 30 6507. is something different. It appears that Mr. Walters had quarrelled with the Company; he quarrelled with the Company so far as to invite or provoke an action against him, and he had incurred considerable costs. He insisted that they had not performed their part of the agreement, and, in fact, at that time they had not issued the shares which they had agreed to give him. He 35 therefore stipulated for something more than the original consideration. If I had found that that really was as compared with these others, having regard to all the facts, a thoroughly new consideration, and an extravagant stipulation, I should have hesitated to say that it was not such a large addition as destroyed the identity between the agreement and the assignment; but he had been 40 engaged in litigation, he had been out of his patent for a long time, that is to say, he had been out of the profitable working of it, and he had been waiting, and was clearly entitled to some solatium. There was no delay as far as regards the assignment then, and I think he was entitled to say, and the Company were entitled to admit, that he might claim a fair and reasonable sum to pay his 45 costs, and by way of consolation for the delay which had occurred, and 6501. does not seem to me to be a large sum to pay a man under those circumstances. In 1897 he knew, or at any rate he thought he knew, and the Ixion Company agreed with him, that he was the owner of a valuable patent which had stood the test of an action before Mr. Justice Wills, and was threshed out for several days; 50 and, although the validity of that patent was not really decided, I think he was entitled to say that he would do nothing without their paying his costs. Probably, if he had insisted upon it, he would have had great difficulty in getting anything at all; but by way of compromise, "to make peace," as I put it to him myself, it seems to me a fair arrangement, and I think it would be 55 wrong to say that there is a new agreement now merely because the 6507. was paid. The New Ixion Tyre and Cycle Company, Ld. v. Spilsbury and Others. Although the other points are of much interest, that point, to my mind, is the most difficult in the case, and it was very well put by Counsel, both Mr. Powell and Mr. Cartmell; but for the reasons I have given I think it does not avail the Defendants. The result is, that I must hold that the licence, although on the Register, and although on the Register prior to the registration of the agree- 5 ment of the 24th of June 1896, does not interfere with the Plaintiffs' rights, and that as against them it is not binding. Whether I ought to say it is invalid, as I am asked by the Statement of Claim, I am not quite sure. I see it is put there "void as against the Plaintiff Company." I do not like saying that it is invalid, but it is void as against the Plaintiff Company. In addition to the Declaration, the learned Judge granted an injunction, and gave the costs of the action to the Plaintiffs. 10 The Dunlop Pneumatic Tyre Company, Ld., and Others v. The New 5 IN THE HIGh Court of JUSTICE.-CHANCERY DIVISION. Before MR. JUSTICE KEKEWICH. April 28th, 29th, and 30th, and May 3rd and 4th, 1898. THE DUNLOP PNEUMATIC TYRE COMPANY, LD., AND OTHERS v. Patent.-Action for infringement of two patents.-Validity.—Infringement.-Plaintiffs partly successful.-Costs. In 1890, a patent was granted to W. for "Improvements in rubber tyres and "metal rims or felloes of wheels for cycle or other light vehicles." In the same 10 year a patent was granted to B. for " Improvements in tyres or rims for cycles "and other vehicles." In 1897, the D. P. T. Company, in whom both the patents had become vested, commenced an action against the N. I. T. Company for infringement of both patents. The Defendants denied infringement and also the validity of both patents. Before the trial, B.'s patent had been upheld and 15 construed by the House of Lords (The North British Rubber Company, Ld., v. The Gormully and Jeffery Manufacturing Company, 15 R.P.C. 245), by whom it was held that the first claim was for the method described in the Specification and any method substantially the same of connecting the outer cover of a tyre with the rim so that the ends of the cover are gripped. 20 W.'s patent had before the trial been upheld and construed in several actions, and in one of them (The Pneumatic Tyre Company, Ld. v. The East London Rubber Company, 14 K.P.C. 573) by the Court of Appeal, by whom it was held that the feature of the invention consisted in an arrangement in which an arched tyre was stretched over a convex surface and held in position 25 by wires in its edges without any other support or fastening. Two tyres were complained of as infringements by the Plaintiffs, both of them being alleged to infringe B.'s patent, and one of them only being alleged at the trial to infringe W.'s patent. In each there was a rubber tyre with metal bands in pockets at the edges of it; these bands overlapped longitudinally, but the ends 30 were not fastened together. The rim in each case was nearly flat at the bottom, and the bands when lying side by side in the rim met or slightly overlapped. In the alleged infringement of both patents (J.H.) the edges of the rim were turned outwards to some extent, but in the other alleged infringement (J.H.) the edges were somewhat inturned, and in the latter 35 case the pockets were looser than in the former case. The position and action of the bands when the tyres were inflated were in controversy. Held, that the questions as to the validity of the patents were concluded as regards this Court by the judgments in the previous actions on the patents, The Dunlop Pneumatic Tyre Company, Ld., and Others v. The New that J.H., was an infringement of B.'s patent, but that J.H., was not an infringement of either of the patents. A special order was made as to costs, and the costs so far as referring to the validity of either patent were directed to be taxed as between solicitor and client. On the 16th of September 1890, Letters Patent (No. 14,563 of 1890) were granted to Charles Kingston Welch for "Improvements in rubber tyres and "metal rims or felloes of wheels for cycles and other light vehicles." 5 The Complete Specification (so far as material for the purposes of this report) was as follows:-"My invention relates to improvements in the construction of 10 "rubber tyres and metal rims or felloes and methods of securing the same one "to the other, for the wheels of cycles and other light vehicles. 66 "The chief objects of my invention are to produce rubber tyres that will be easy running, reduce vibration and also be securely fastened to the metal rims 66 or felloes. 66 15 "The rubber or elastic tyres hereinafter described are in most cases saddle or "arched (when on the rims) in section and are made to fit either wholly or partly outside the metal rims or felloes which may in some cases be of special "form as hereinafter described, I also construct this form of tyre to fit over "other elastic tyres or wheels at present in vogue or made in the ordinary way, 20 "either for protecting securing, or reducing vibration. In all cases the method "of securing renders the rubber tyre easily attachable or detachable for "repairs &c. 66 "Referring to the accompanying sheet of drawings throughout the several "figures similar parts are marked with like letters of reference. Fig. 1 is a 25 "transverse section of a saddle or arched shape rubber or elastic tyre as fitted "to a round weldless steel tubular rim. Fig. 2 is a transverse section and part side elevation of a similar tyre as fitted to a D-shaped tubular rim in "which the spokes may be suitably secured. Referring to both figures a. "is the rim. c. the saddle or arched shape elastic tyre through which two 30 "longitudinal holes are formed one on each side of the rim, these are lined "with a strong canvas or insertion and vulcanized within the rubber c. as shown "at d. these linings may be separate one from the other as in Fig. 1 or I may "fold a piece of canvas on each side and either stitch or otherwise fasten "" it together and vulcanize the same within the rubber tyre as shown at d. in 35 "Fig. 2. "In order to secure the rubber or elastic tyres to the rims I insert two "wires or cores e. e. (which may be of steel brass, bronze or other sufficiently " inelastic material to answer the purpose) one on each side of the rim, the ends "of the wires may be connected with a nipple f. having a right and left hand 40 "thread screwed thereon, or I may put a thread on one end of the wires a head 66 on the other and connect it with a similar device as shown with reference to “Fig. 21 or in any other suitable way. The nipples may be of hexagon form or may be enlarged at any part in the form of a hexagon collar as shown at ƒ. "Fig. 2 which may be turned by a thin wrench as shown in Fig. 3 pushed 45 "between the ends of the rubber when the tyre is made of a straight length or if moulded in a complete ring small apertures may be made for the 66 purpose as shown at g. Fig. 2. Thus the above described rubber tyres may "be placed on either of the described metal rims or felloes one wire of "which may be connected beforehand the ends of the other wire may then 50 "be connected after the tyre is in place and each drawn together with a "wrench, thus the rubber tyre would tighten on the rim or felloe and the "sides would be drawn in towards the centre of the wheel securing the same σε thereto, the under or inner portion of the tyre Fig. 1. is shown lined with 66 |
