Opinion
20214.
SUBMITTED SEPTEMBER 10, 1958.
DECIDED OCTOBER 10, 1958.
Equitable petition. Fulton Superior Court. Before Judge Pharr. June 30, 1958.
Alton T. Milam, Lucile I. Milam, for plaintiff in error.
Henry M. Hatcher, Jr., Johnson, Hatcher Meyerson, contra.
The judgment of the court below was not error for any reason assigned.
SUBMITTED SEPTEMBER 10, 1958 — DECIDED OCTOBER 10, 1958.
Homer C. Hayslip, who was the owner of a patent, sold a one-half undivided interest in said patent to Talmadge M. Black in 1950, both parties covenanting as follows: ". . . that neither of them shall under any conditions or at any time issue any rights, franchises or licenses for the manufacture or sale of the above system and or patents to any party, parties or corporation whatsoever without the written consent of the other party, and
". . . that in the event either parties desires to sell or transfer his interest that the other party shall have the first rights to purchase said interest; he shall have a right to agree to the party or parties desiring to buy, which agreement shall be in writing, and
"Further, in the event of the deceasement of either party hereto the legal representative of said party shall give the other party the first option to purchase his interest and in the event of a dispute as to the value; and the same shall apply to the preceding paragraph; the fair value of the undivided interest shall be the reasonable book value at the time of the contingency and in the event either party is dissatisfied to such a settlement the dispute may be settled by an agent of the parties or their representatives, and
"Further, it is agreed to by both parties that neither party hereto shall enter into any form of competition involving the manufacture or sales of the hereinbefore described articles. . . "
In 1951, Black gave Hayslip a franchise to operate under his one-half interest in the patent, which franchise was canceled in the same year.
In March, 1952, Hayslip's trustee in bankruptcy sold to the defendant Long, along with other articles, "all right, title and interest" of the bankrupt both in the patent and in the franchise, and "all other and further manufacturing rights owned and enjoyed by the bankrupt in his business." Long immediately assigned the patent interest and franchise to Goddard and Murphy, who immediately assigned same to the Speed Check Company, Incorporated, which has been operating under the patent ever since.
In June, 1952, Black "along with others" brought suit in the United States District Court for the Northern District of Georgia against Goddard and Speed Check Company, Incorporated, for infringement of the patent, and a "judgment and decree" was entered, in which the court reserved judgment on the "rights" of Black, if any, to an accounting by virtue of his interest in the patent.
Later, Black offered to sell his one-half interest in the patent to the defendants "in compliance with the duties and obligations resting on him by reason of the contract" of January 25, 1950, and upon the refusal of the defendants to buy, he has sought without success to sell the patent interest to others for six years. In January, 1958, Black purported to sell to Hayslip his interest in the patent "subject to retention of title hereinafter contained" by an instrument, the provisions of which will be set out in the following opinion.
The defendants filed to the petition their general and special demurrers, which were renewed after amendment. The general demurrers of all defendants were sustained. The exception here is to that judgment.
Hayslip sues as assignee of Black. The instrument sued upon provides that Hayslip covenants to buy a one-half interest in the patent in question for $15,000, which is to be paid in one year from the date of the instrument. In the meantime, Hayslip is to pay Black a royalty of 2 1/2 % on all tags sold, and title is to remain vested in Black "and this agreement shall in said interim be construed as a license from party of the first part to party of the second part to manufacture and sell pursuant to said patent." The instrument executed by Black on January 17, 1958, acknowledges receipt of $1, for which Black conveys to Hayslip "any and all rights and causes of action which I may have against any person or persons for violation of my interest in, for infringement of my rights under, and/or for damages to my interest under patent No. 2,455,009."
It is clear that the plaintiff in error at this time owns nothing in so far as this patent is concerned except the right to manufacture the product upon the payment to Black of a royalty upon the units manufactured, together with an attempted transfer by Black to Hayslip of a cause of action for violation of his alleged patent rights. It therefore follows that plaintiff in error does not have such title to the patent as will authorize him to bring suit for the patent as against the defendants in error.
In so far as infringement of the patent rights is concerned, it is clear that the Federal courts and not the State courts have jurisdiction. Cinema Patents Co., Inc. v. Columbia Pictures Corp., 62 F.2d 310.
In so far as the suit is based upon an attempted assignment or transfer of a mere naked cause of action, this court has said: "A bare right to file a bill or maintain a suit is not assignable." Marshall v. Means, 12 Ga. 61 (56 Am. D. 444). "A right of action for injuries arising from fraud can not be assigned." Morehead v. Ayers, 136 Ga. 488 (1) ( 71 S.E. 798). "A right of action for injuries arising from fraud is not assignable." Couch v. Crane, 142 Ga. 22 (8) ( 82 S.E. 459). "A bare right to file a bill in equity or maintain a suit is not transferable." Security Feed c. Co., v. NeSmith, 213 Ga. 783 ( 102 S.E.2d 37).
It follows, the petition of the plaintiff in error was properly dismissed on general demurrer.
Judgment affirmed. All the Justices concur.