
    Brookins v. The National Refining Co.
    
      Contracts — Advertising scheme invented by former sales agent —Evidence of reasonable compensation sufficient to submit case to fury — Testimony as to invisible and visible value of property admissible — Nominal damages not precluded by difficulty in ascertaining value of invention — Expert testimony admissible as to fair compensation to inventor —Notwithstanding inability to estimate value of scheme as advertising medium — Assignment of inventor’s interest in scheme, not a release.
    
    1. In action by former sales agent for compensation for advertising scheme, development of which was completed by defendant when plaintiff was drafted into army, evidence that invention was valuable and defendant expended $40,-000 in distributing it, and that fair consideration should be 15 per cent, of such sum, held sufficient to take plaintiff’s case to jury.
    2. In action by sales agent to recover compensation for advertising scheme, plaintiff’s testimony that invention was valuable, that defendant had expended $40,000 in distributing it, and that fair consideration would be 15 per cent, of such sum, held admissible, since he had right to testify to value of invisible property as well as visible property.
    3. In action by sales agent to recover compensation for advertising scheme conceived by him and used by defendant, fact that value of invention was difficult or incapable of ascertainment held not to preclude recovery of at least nominal damages.
    4. In action by sales agent to recover compensation for advertising scheme conceived by him and used by defendant, testimony of expert on value of advertising schemes, as to what custom would be as to fair price to inventor of scheme, where user expended amount which defendant expended, held admissible, notwithstanding former statement that he could not tell value of plaintiff’s scheme as advertising medium.
    5. In action by sales agent for compensation for advertising scheme, development of which was continued by defendant after plaintiff was drafted into army, plaintiff’s assignment of interest to defendant, with understanding that he would be paid fair value if scheme could be patented and used, held not release, and issue as to release should not be brought into case.
    (Decided June 13, 1927.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. J. B. Dworken, for plaintiff in error.
    
      Messrs. Tolies, Hogsett & Ginn, for defendant in error.
   Vickery, J.

This case came into this court on a petition in error to the common pleas court of Cuyahoga county.

In the court below plaintiff in error was plaintiff and brought his action against' the defendant to recover the sum of about $6,000, which he claimed by virtue of circumstances which hereafter will be detailed.

In the trial of the action, the court, at the close of the plaintiff’s testimony, directed a verdict against the plaintiff and in favor of the defendant, and plaintiff below prosecutes error to reverse that judgment.

From the record we learn that the plaintiff in error, prior to the transactions hereinafter detailed, was a sales agent for the defendant company, selling oils, greases, etc., the products of said company. While in such employment, he conceived an advertising scheme called “En-Ar-Co Automobile Tour Game,” and it consisted of certain devices which could be used, as he claimed, advantageously in advertising. He had a talk with a Mr. Smith, who seems to have been the sales manager of the company, and outlined his plan to him. He and Smith had some talk whereby the plaintiff was encouraged to go forward and produce drawings for the purpose of procuring a copyright, and the company promised that, if it could make use of his plan, it would pay him the reasonable value for such services.

The plaintiff went on and perfected his drawings and preliminary sketches, when he was drafted into the Ordinance Department of the United States Army, this country being then at war with Germany and its allies. Before he entered into the war, however, a conversation took place between him and Smith, whereby Smith advised him to assign his rights to the patent or copyright to the company, so that it could proceed to perfect the work he had started, and, in the event that the scheme was a success, and the company could procure a copyright, when he returned from the war he should have his old position back and the company would pay him the value of his ideas with respect to the advertising. This is the testimony of the plaintiff in this action.

Thereupon Brookins made the assignment that is set up in the answer of the defendant and went to war, and when he returned the defendant not only refused to reinstate him in his old employment, but refused to settle with him, denying that it had secured a patent, or copyright, or had done anything with his invention, so called. Subsequently he learned that the defendant company had procured the patent or copyright, and had proceeded to manufacture and put into circulation more than 1,300,000 of these advertisements, the idea of which was wholly his own, the right to procúre the patent for which had been assigned by him to the defendant company, as detailed above.

Brookins sought by interviews to get an adjustment of what he claimed was due him. The defendant company refused not only to re-employ him, but to settle for anything, claiming that nothing was due plaintiff, alleging that he had signed a release to the company of his right, title, and interest to the patent or copyright, and declined to pay him anything, whereupon suit was brought, resulting as already stated, in a directed verdict for the defendant.

Plaintiff in error prosecutes error, first, on the ground that there was some evidence, to-wit, his own, to the effect that this invention of his was valuable, that the company had expended something like $40,000 in distributing his so-called patent, and that a fair consideration due him would be 15 per cent, of this sum, amounting in all to about $6,000. It seems that an objection was made to his testimony, and subsequently it was ruled out by the court, because, as the court stated, while he might testify as to the value of his visible property, this being an invisible property he could not testify as to its value. We do not know of any such distinction. If a man could testify as to the value of his visible property, he might with equal propriety testify as to the value of his invisible property; all the more so because in the latter case it would be difficult to get testimony other than his own. We think the court erred in striking this testimony out or in refusing its admission. There was some evidence, which, if the jury believed, would entitle the plaintiff to a verdict for some amount.

It is further argued that, because the value of the invention was not capable of being ascertained, it had no value, and that therefore the plaintiff was not entitled to recover. We do not understand that because the value was difficult of ascertainment, or incapable of ascertainment, the plaintiff would not be entitled to recover at least nominal damages.

But there is still another error. Charles W. Mears, than whom there is no greater expert on the value of advertising schemes, was brought in as a witness, and was asked to testify as to the value of this so-called patent scheme as an advertising medium. He said that he could not tell its value. Of course nobody could. Nobody can tell how much business would come by reason of that advertisement or how little, and so as to that question Mears could not qualify, but it was put to him as to what the custom would be where an advertising scheme was perfected and carried into effect by the defendant, who had expended in publishing and circulating this advertising proposition moneys to the extent of $40,000, or better, and what would be the fair price allowable to the inventor of such scheme, based upon the amount of money expended by the defendant. This was objected to, and the objection was sustained. The plaintiff then read into the record what the answer would be if Mears were permitted to answer, and it was to the effect that under such circumstances the value of the services of the inventor of the idea would be about 15 per cent., or a total of about $6,000.

Now upon what theory this evidence was rejected it is a little difficult to ascertain. It is argued strenuously by counsel for the defendant company that because Mears said be could not tell what this scheme was worth he was not able to testify at all. Now what Mears did say, or would have said, was that it was the custom to pay 15 per cent, of the amount of money that it would cost the distributor, and that 15 per cent, would be a fair price to pay the inventor of the idea. He was not permitted to testify to this, and we think that was error.

It is argued in this case that there was a release of the claims of the plaintiff, and that, in order that the plaintiff might recover, he must prove by clear and convincing evidence that this release was obtained by fraud, or something to that effect, and that the plaintiff did not meet the burden thus imposed upon him, and that I believe was one of the reasons that the court gave for his decision. Now let us see. There was no release here. If the plaintiff’s theory of this was right, he was about to go away and could not look after this invention, and, for the purpose of having it materialized, he made an assignment to the defendant company of all his right, title, and interest, and, if his testimony is to be believed, the distinct understanding and agreement was to the effect that, if it could be patented and could be used, the company would pay him the fair value of his invention. That is not a release of any claim. That is simply an assignment of an interest in a claim based upon a sufficient consideration to be afterwards paid by the defendant company, and there was some evidence, at least plaintiff’s evidence, to substantiate this agreement. What the whole record would show if the defense had gone on the witness stand we do not know, but we do know that at the time the court directed a verdict there was some evidence bearing upon the issues in this case which should have gone to the jury, and the issues should not be muddled by bringing in a release which did not exist by the answer and reply of this case.

We think, therefore, for the reasons outlined, that the court was clearly in error in directing a verdict, and for that reason the judgment will be reversed, and the case remanded to the common pleas court for a new trial.

Judgment reversed and cause. remanded.

Sullivan, P. J., and Levine, J., concur.  