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cretion of the court and upon principles of justice and equity.
We think the Consolidated company, though not falling strictly within the category of bona fide purchasers, should not be required to surrender the patents in question to the Bates Machine Company, but that the Bates Machine Company, if it has any right of action in the premises, should be remitted to its remedy (legal or equitable, as it may be advised,) against the said A. J. Bates or Robinson and the Standard Railroad and Farm Fence Company.
It is not contended the Consolidated company, when it entered into the contract to purchase the said patents and paid the sum of $40,000 on said contract, had any notice or knowledge of the claim of the Bates Machine Company to the inventive services and skill of the said A.J. Bates. The Consolidated company at the same time, and clearly with full belief it had the right to do so, and without notice to the contrary, employed said A. J. Bates to complete and perfect the said machine and the said fence to be manufactured upon it, and to complete the invention for it, and the inventions and the patents thereon to be the property of said Consolidated company. While the law inclines to the rule that an invention shall be the property of the inventor, yet a man of inventive mind may, for a consideration, legally contract to devote his skill and inventive genius to an invention to be the property of his employer when completed and patented, and under a specific contract to that effect the invention may, in equity, become the property of the employer. (Joliet Manf. Co. v. Dice, 105 Ill. 649.) Any other rule would deny inventors the full benefit of their peculiar gifts and powers.
The Bates Machine Company was, when the Consolidated company made this contract, engaged, under a contract with Robinson or in fulfillment of an order given by Robinson, in building and making the machine in
question to make the fence. The contract between the said A.J. Bates, Robinson and the Standard Railroad and Farm Fence Company and the Consolidated company, provided said Robinson, A. J. Bates and the Standard Railroad and Farm Fence Company should defray the expense of building the machine. The Bates Machine Company rendered bills for the work to Robinson and received payments in checks, some of which were signed by Robinson individually, but many of such checks were signed by "The Standard Railroad and Farm Fence Company, by A. J. Bates." In presenting one of the itemized bills for the work to Robinson, before the contract was made with the Consolidated company, the Bates Machine Company included a charge for the time of A. J. Bates. The superintendent of the Bates Machine Company was then informed that A. J. Bates was practically the owner of one-half of the capital stock in the Standard Railroad and Farm Fence Company, and was under obligations to render his services about the work without charge, and the result was the time charged for his work was stricken out. A similar question arose after the contract was made between A. J. Bates, Robinson and the Standard company with the Consolidated company. The time of A. J. Bates was included in bills or a bill rendered by the Bates Machine Company for work done for the Consolidated company, and on complaint the item was stricken out of the bill. W. O. Bates, secretary and treasurer of the Bates Machine Company at the time of the hearing below, and prior to September 25, 1895, superintendent for said Bates company, would not, on his examination as a witness, deny but that such charge was withdrawn because A. J. Bates was receiving an annual salary as the employee of the Consolidated company and that the company was entitled to his services by reason of such employment. The Bates Machine Company made no claim to any right or interest in the machine, or the fence to be manufactured thereon, until after the said A. J.
Bates, as an employee of the Consolidated company, had, in the plant of the Bates Machine Company, under the circumstances as aforesaid, constructed the machine, tendered it as completed, and until after the officers of the Consolidated company had been for some days engaged, in the works of the Bates Machine Company, in inspecting the workings of the machine in the actual operation of building the woven wire fence out of wire supplied by the Consolidated company for the purpose.
What duty or course of action should equity require to have been taken by the Consolidated company on receiving the notice of July 7, 1896, that said Bates Machine Company claimed the right to the machine and the invention of the fence to be constructed by the machine? It had in good faith contracted for the machine and the inventions; had paid a large sum of money on the contract; had caused the work of making the machine and of planning and devising the invention of the fence to be carried forward by A. J. Bates, as its salaried employee, without objection or complaint on the part of the Bates Machine Company, though under circumstances well calculated to demand action on the part of the Bates Machine Company if it intended to advance any claim to the machine or the fence or the patents thereon. When the notice was received an actual test of the machine was in operation, and the officers of the Consolidated company were then, and for some days had been, at the works of the Bates Machine Company superintending the work of the machine and the test thereof. No principle of equity or rule of law or morals would justify a decree declaring it became the duty of the Consolidated company to abandon the test then being made of the machine, refuse to make payment of the remainder of the contract price, and decreeing that the Consolidated company should assign the patents afterwards obtained on the fence, and the machine to make the same, to the Bates Machine Company. The Bates Machine Company has
no just grounds upon which to base a bill for a decree
F. J. BERRY et al.
192 154 194 1574 192
154 202 1450
Opinion filed October 24, 1901.
1. SPECIAL ASSESSMENTS—what does not show that an estimate was not made ten days before public hearing. Under section 9 of the Local Improvement act of 1897 the recommendation of the improvement board is prima facie evidence that an estimate of cost was made ten days before the public hearing, as required by section 7, and such prima facie evidence is not overcome by the fact that the estimate accompanying the ordinance and made under the provisions of section 10 bears the date of the passage of the ordinance.
2. SAME—that vicw of the facts which will support the ordinance is preferred. If the facts shown are susceptible of two constructions, one of which will support and the other defeat the ordinance, the for mer will be adopted.
APPEAL from the County Court of Cook county; the Hon. W. T. HODSON, Judge, presiding.
SAMUEL J. Howe, for appellants.
CHARLES M. WALKER, Corporation Counsel, and ROBERT REDFIELD, for appellee.
Mr. JUSTICE HAND delivered the opinion of the court:
This is an appeal from a judgment of the county court of Cook county confirming a special assessment for defraying the cost of curbing, grading and paving Michigan avenue from Ninety-ninth street to One Hundred and Ninth street, in the city of Chicago.
It is urged by appellants that the ordinance providing for said improvement is void, first, because said ordinance is unreasonable; and second, because the board of local improvements did not cause an estimate of the cost of the proposed improvement to be made ten days before the public hearing.
The first contention is not covered by the objections filed in the county court, nor is it included in the assignment of errors. In Skakel v. People, 188 Ill. 291, on page 294 we say: "Every error must be specifically pointed out in the assignment of errors (Swift & Co. v. Fue, 167 Ill. 443,) so clearly that from the showing error is manifest, (Gibler v. City of Mattoon, 167 Ill. 18,) and an error not assigned is not open to review.-Gilbert v. Maggord, 1 Scam. 471; Jackson v. Warren, 32 Ill. 331; Thayer v. Peck, 93 id. 357; Diversey V. Johnson, id. 547; Page v. People, 99 id. 418."
And in our opinion the second contention is not supported by the record. Section 7 of the act concerning local improvements, passed June 14, 1897, (Hurd's Stat. 1899, chap. 24, p. 362,) requires that an estimate of the cost of the proposed improvement be made and that it be incorporated in the resolution passed by the board, which resolution shall be passed ten days before the public hearing. There is no evidence in the record to show that the estimate required by said section was not made and incorporated in the resolution which was passed ten days before the public hearing, and therefore ten days before the passage of the ordinance. Section 9 of said Improvement act provides: “With any such ordinance, presented by such board to the city council or board of trustees, sball be presented also a recommendation of such improvement by the said board, signed by at least a majority of the members thereof. The recommendation by said board, shall be prima facie evidence that all the preliminary requirements of the law have been complied with, and if a variance be shown on the proceedings in the court, it shall not affect the validity of the proceed