Opinion
Docket No. 41, Calendar No. 39,357.
Submitted April 27, 1937.
Decided November 10, 1937. Rehearing denied May 4, 1938. Reconsideration denied October 3, 1938.
Appeal from Jackson; Simpson (John), J. Submitted April 27, 1937. (Docket No. 41, Calendar No. 39,357.) Decided November 10, 1937. Rehearing denied May 4, 1938. Reconsideration denied October 3, 1938.
Action by Rubsam Corporation, a Delaware corporation, against General Motors Corporation, a Delaware corporation, for damages for breach of a license agreement. Judgment for defendant. Plaintiff appeals. On motion for rehearing, affirmed in part, reversed in part and new trial granted.
Whiting Kleinstiver ( Harness, Dickey Pierce, of counsel), for plaintiff.
Milburn Semmes ( Prewitt Semmes, Drury W. Cooper, and C. Blake Townsend, of counsel), for defendant.
(ON MOTION FOR REHEARING.)
Our attention has been directed, on application for rehearing, to an error in our original opinion reported ante, 691, in that we did not determine whether defendant had used plaintiff's inventions therein designated as the "second," "third" and "fourth" patents, numbered and dated as follows: 1,576,225 — March 9, 1926; 1,576,226 — issued the same day, and 1,622,846 — March 29, 1927.
Re-examination of the findings, upon which judgment was entered below for defendant, shows that the circuit judge did not determine whether defendant ever used plaintiff's "second," "third" and "fourth" patents.
The above question was covered in appellant's statement of "reasons and grounds for appeal" and in its "statement of questions involved." See Court Rules Nos. 66, § 3, and 67, § 1 (1933).
Our original opinion of November 10, 1937, should have included consideration of this matter and must be modified to provide that the judgment for defendant be affirmed only as to Patent No. 1, and that the cause be remanded to the circuit court for determination of the claimed use of the second, third and fourth patents.
Plaintiff having prevailed upon its application for rehearing, the original order as to costs must be vacated as plaintiff should recover costs.
It is ordered that the judgment below be affirmed in part and reversed in part, with a new trial as to patents 2, 3 and 4, and costs to appellant in both courts.