Whitcomb v. Whitcomb

Powers, J.

These parties were partners in the operation of a large machine shop in Barre. Dissension arose and the orator brought a bill for an accounting and for a dissolution ■of the partnership, therein praying, among other things, that a receiver be appointed and that the propertjr of the firm be ordered turned over to him. The defendant answered the bill and therein admitted the necessity of a receiver, and one was duly appointed, and he is now in charge of the affairs of the firm. The defendant’s answer asserted, among other things, that a -certain patent standing in the name of the orator was obtained ,at the expense of the firm under an agreement that an undivided half of it should be assigned to the defendant, and that it should be used for the benefit of the business. The orator filed a replication joining issue on this answer. Thereupon, a hearing was had before a chancellor, who found and filed a statement •of facts. The chancellor found that the patent referred to is the property of the co-partnership. No exceptions to the chancellor’s findings were filed, and a decree was rendered fixing the interests of the respective partners in the assets of the firm, .and. establishing the firm’s ownership of the patent in question, and ordering the orator to assign the same to the receiver within *79 :a time fixed, and in default thereof appointing a trustee to make such assignment. From this decree, the orator appealed. The only question raised pertains to the ownership of this patent.

The orator says in his brief that the finding as to the ownership of this patent is not warranted by the evidence, and that all evidence relating thereto was taken subject to objection and exception. Both these claims are outside the record and consequently they cannot be considered. The évidence is not sent up, (Williams v. Wager, 64 Vt. 326 , 24 Atl. 765 ; Holt v. Howard, 77 Vt. 49 , 58 Atl. 797 ; Child v. Pinney, 81 Vt. 314 , 70 Atl. 566 ;) and no exception to the finding was filed. In these circumstances, all this Court can do is to assume that the finding was upon competent and sufficient evidence. Martin v. Wells, 43 Vt. 428 ; Sargent v. Burton, 74 Vt. 24 , 52 Atl. 72 . It must stand, therefore, unless it appears on its face to be erroneous. The orator says that a patent cannot be owned by a partnership. But this cannot be so, for a patent right and the privileges thereby granted are incorporeal personal property, De La Vergne Refrigerating Mach. Co. v. Featherstone, 147 U. S. 209 , 37 L. ed. 138, 13 Sup. Ct. 283, and are entitled to the same rights and sanctions which attend other property. Cammeyer v. Newton, 94 U. S. 225 , 24 L. ed. 72, Densmore v. Schofield, 102 U. S. 375 , 26 L. ed. 214. They may be transferred by oral agreement, as was here done, and such agreement is not within the Statute of Frauds, nor within U. S. R. S. 4898 requiring assignment to be in writing, and will be specifically enforced in equity when properly proved. Dalzelle v. Dueber Watch Case Mfg. Co., 149 U. S. 315 , 37 L. ed. 749, 13 Sup. Ct. 886; Harrington v. Smith, (N. J.) 42 Atl. 579 ; Searle v. Hill, 73 Ia. 367 , 35 N. W. 490 , 5 Am. St. Rep. 688 ; Hammond v. M. & H. Organ Co., 92 U. S. 724 , 23 L. ed. 767.

And while it is true that the partnership did not acquire title to the patent simply by reason of the fact that partnership funds were used in obtaining it, Burr v. DeLaVergne, 102 N. Y. 415 , 7 N. E. 366 ; Belcher v. Whittemore, 134 Mass. 330 , it did become, as it lawfully might, Fresno Home Packing Co. v. Fruit Cleaning Co., 101 Fed. 826 , 42 C. C. A. 43 ; Button Holeing Co. v. Somerville, L. T. (N. S.) XXXVIII, 878, the equitable assignee thereof by force of the agreement.

*80 A compulsory assignment is within the jurisdiction of the court of chancery, and the decree below ordering such an assignment by the orator and appointing a trustee to act in case of his refusal was correct. Ager v. Murray, 105 U. S. 126 , 26 L. ed. 942.

Decree affirmed and cause remanded. Let a new time be fixed by the court of chancery within which the orator shall assign to the receiver the patent in question.