Circuit Court of Appeals, Eighth Circuit.
February 17, 1937.
Appeal from the District Court of the United States for the Southern District of Iowa; Charles A. Dewey, Judge.
Action at law by Guy Young against the Ralston-Purina Company. From a judgment of dismissal, plaintiff appeals.
Allen A. Herrick and Herschel G. Langdon, both of Des Moines, Iowa (D. Cole McMartin, of Des Moines, Iowa, on the brief), for appellant.
William Hossfeld, of Des Moines, Iowa (F. W. Lehmann, Jr., and W. B. Hurlburt, both of Des Moines, Iowa, on the brief), for appellee.
Before SANBORN, WOODROUGH, and BOOTH, Circuit Judges.
WOODROUGH, Circuit Judge.
The petition in this case presented a cause of action at law in two counts within the federal jurisdiction because of diverse citizenship of the parties. In the first count the plaintiff alleged that he had invented a certain toy movie theater for which he had a patent pending during the summer of 1934 and that during that summer he entered into negotiations with defendant to sell the use of the invention to the defendant; that defendant stated it was interested in utilizing plaintiff's idea on the basis of paying plaintiff a royalty on each toy theater used; that at defendant's request plaintiff disclosed all the details of his invention to defendant, and the defendant thereupon utilized the plaintiff's idea and invention and produced and distributed one million of said toy theaters and became thereby indebted to plaintiff for a reasonable royalty, figured at $12,500.
In the second count the allegations were "that on or about October 22, 1934, the defendant offered to purchase the use of plaintiff's invention to use said toy theatre idea" at a certain royalty price; that the plaintiff accepted the offer; and that the "defendant did produce and utilize * * * one million of said toy theatres and thereby became indebted to plaintiff in the sum of $12,500.00."
There was a prayer for judgment in the sum of $12,500, with interest and costs.
The defendant answered that it did cause toy movie theaters to be made and distributed as a premium during the latter part of 1934 and the early part of 1935, but the toys did not embody the plaintiff's invention and they were not made or distributed pursuant to any contract express or implied between plaintiff and defendant; that the structure of the toy movie picture theater was old and well-known to the public prior to plaintiff's alleged invention; and that the structure of those made and distributed by defendant was fully illustrated and described in six...