A ROYALTY CASE.

Wairarapa Daily Times, Volume XI, Issue 3735, 13 February 1891, Page 2

A ROYALTY CASE.

Rival "Woolpresses.

D. Donald v. Ross ani> Muir.

In the R. M.Court yesterday, before Colonel Roberts, R,M., MrD. Donald brought an action to recover from Messrs Ross and M uir the sum of £72, royalty on a patent wool press. Mr Beard, for plaintiff, stated that in 1887 Mr Donald invented a press known as the "Solway Eccentric Grip Wool Press," and patented the same in New Zealand and Australia. The same year he entered into a verbal agreement with Messrs Ross ?nd Miur to manufacture his press and pay him a royalty. Defendants admitted manufacturing wool presses and selling the same, but stated that the press manufactured and sold by them was not Mr Donald's, but another patent. Mr Beard said he would endeavor to produce evidence, which would show that the press sold by Ross and Muir was in point ot fact the Sol way. D. Donald deposed that in November, 1887, he obtained letters patent for the Solway Eccentric Press in New Zealand and Australia, and on the 110 th November in the same year saw Mr Ross, and entered iuto an arrangement with him to manufacture the press and pay a royalty of £3 on each one sold. Particulars of cost of manufacture were entered into, the cost being about £B. It was also estimated that the presses could be sold at £l6 or £l7 made up as follows :—cost of manufacture £B, royalty £3, profit £3, commission on sales £l-. Nothing was s.tid at that time about flax presses. Subsequently Messrs Ross and Muir manufactured flax presses from the same patent and principle. Had seen the one supplied to Wellington Harbour Board. Had frequently applied for statement of accounts, but had never received any. Nb royalty had been paid in respect to the agreement made. To Mr Pownall: Gave the defendant's rough drawings, but no copy of specification, or duplicate of patent. They had not asked for any. Had seen the press in use by Mr Tatham. Gave them wooden models of all principal parts to work upon. The press was the same as near as he knew without practical experience. If the models had been faithfully followed, he would guarantee that the machine would work. Had put one together in wood. The special novelty of the patent was that the leverage was applied differently, the eccentric gripper having a great deal to do with it. The principle of the machines constructed by Messrs Ross and Muir were the same as his specifications. Had seen a number of the machines with the eccentric gripper. Only one machine was made before construction was slightly altered. The alteration was in the rods which pulled the wool down. He had made that alteration, The subsequent alterations were slight and were made by Ross and Muir subject to wooden models. Some machines were returned. In some cases there were complaints, in others none. In one instance a press of another design was converted into one of his. Had known one to work three years, pressing 100 bales a year, without breaking. Did not recollect Mr Ross saying that the presses were not paying cost of construction. Remembered the conversation with Mr Ross re royalty. Believed he mentioned tbe sum of £3 as royalty in Mr Ross' office and made an entry in his diary on that date. Could not swear Messrs Ross and Muir were partners at the time. Mr Ross made no objection, but did not remember his exact words. He as« sented to pay the sum proposed. Eccentric movement was on the flax press and wool presses. They could not be identical in detail, but were in principle. Anything Messrs Ross and Muir made similar to his models he considered to be part of his patent. Models of the principal parts were supplied to Ross and Muii and they constructed the whole thing. Had nothing to do with defects of manufacture or strength of the machine. Had had conversation with Mr Muir, but he had never suggested to bim that he was not in partnership with Mr Ross. Hugh George Williams, residing at Lansdowne, stated that about three years ago he saw Mr Ross about a wool press. Told him he required one of Donald's presses. Ross said he bad not made up the price, but guaranteed it would not exceed £l4. Did not think he demurred at cost. At one time had told Ross that if he wished to make tbe press popular he would have to make it cheap. Ross said then that there was the cost of construction and a royalty to pay. James Muir, the next witness called, produced the firms books to show that certain persons had been supplied with presses entered as the ' New Solway.' Witness stated he had joined Mr Ross as partner, in January, 1888. Knew nothing for certain in reference to royalty for machine. They had designed tbe flax presses themselves, without the assistance of Mr Donald, that was as far as his knowledge went. Mr Donald obtained order for Harbor Board press. The wool presses were altered from the original design. AL I the working plans they had from Mr Donald were a few " rough sticks " brought in from time to time. To" Mr Beard : Did not mean to say that they solely invented the machine, but had something to do with it. Mr Donald had taken out a patent for the Solway Eccentric 12 months before he came to them. The machine they manufactured was not Mr Doaald's invention, but he had brought in the rough idea. Considered they had a right to manufacture and sell the press without paying a royalty, the principle of the press patented by thnir firm not being the same as the one patented by Mr Donald. Their " Zealandia " was not similar to Mr Donald's, in certain parts which were dissimilar to all other presses. It was understood by bim on going into partnership with Ross that something had been said about a rpyalty. Mr Donald wa§ frequently in their shop during cpnstruction. Held no conversation at all with him re presses. Described the press as the new Solway because Mr Donald brought in the first idea.

To Mr Powrqll ; Understood from Mr Boss that if the press paid, a royalty would be given to Mr Donald. Never heard of any arrangement in reference to the flax presses.

Mr Pownall here raised a nonsuit point of an express agreement to ffhich the defendant Muir was not a party t not being then a partner. Mr Beard contended that by entering into partnership Muir became responsible in the manufacture of ail article, and rpvalty attache^ Mr Pownall also raised a point that no letters patent had been taken for ft flax press, and as no agreement had been proved the whole thing would have to be nonsuited, because

the action was brought as under an express agreement. The decision on the points raised for the nonsdit were reserved by His Worship. Mr Pownall stated for the defence that Mr Donald's patent turned out to be a perfectly unworkable affair, and after several alterations a press was constructed totally unlike the patent. James Ross, coachbuilder, stated that he had never arranged to pay Donald a royalty, although something had been said. Mr Donald brought in a few sticks, and from them they constructed a press. Mr Donald said " I shall expect a royalty of two pounds on each press." He had answered " very well, I'll see how it will pan out." Consented to nothing that passed between them at that time. Nothing further was said about royalty for some time. L 3 was hever mentioned at all. He had manufactured one " Solway Eccentric Wool press " before Mr Muir joined him. Mr Donald manufactured no more of that kind because it would not work to satisfaction. The next machine was made from an entirely different pattern, which the firm of Ross and Muir converted into something which would work. Had never made another wool press than the one made for Mr Donald under the specification of patent. The " Eccentric grip" was wiped clean out in all subsequently made machines. Mr Donald occasionally called while the firm set to work to put the machine into shape. When they made an improvement Mr Donald always disapproved of it. Had told Mr Donald the presses were not paying at the price, when they were about half through, and he did not see where there was any show of his (Donald) getting a royalty, as they were making nothing out of it. Donald replied that he did not mind so long as they went on. He was prepared to forego the royalty so as to get the press into the market at the present price of £l4 10s, to advertise the press for the time being, and in the future they could raise the price. On the strength of this they went on witb the manufacture. Had made no profit on the machine. Mr Donald had never applied tor any royalty until they started their press. After they had patented the "Zealandia" Mr Donald made a claim for royalty. There never had been any arrangement at all about royalty. On several occasions two pounds had been spent on labor before the press would work. Nearly all the first lot had been returned, The flax presses were Ross and Muir's, Believed they had turned out two or three flax presses before Mr Donald knew that they had turned out anything of the kind. Then Mr Donald finding out, had obtained them an order from Wellington Harbor Board. To Mr Beard: Did not suggest that it was a speculation on Mr Donald's part. Certainly did not think Donald understood a royalty was to be paid. Conversation took place in the office. Nothing elße about the royalty took place. At this stage the proceedings were adjourned till 2 o'clock to-day.