A, the owner of a patent for a fibre decorticating machine, entered into an agreement with B, the owner of an estate in Borneo, whereby it was stipulated that A should supply and erect one of the machines on B’s estate, and if it proved satisfactory that B should pay for it a sum to cover cost, freight, and cost of erection, that terms should be arranged for the use of decorticators on the estate, and that the area under fibre cultivation should be increased by 25 acres per three months up to 1000 acres. A decorticating machine was supplied and erected by A. within a year after the date of this contract he assigned the patent to a limited liability company together with ‘licences concessions, and the like,’ receiving certain shares in the company, inter alia, for this patent and for ‘contracts and concessions.’ Thereafter the company with consent of A brought an action against B, in which they sued as assignees of the contract between A and B, but ultimately restricted their claim to the sum due for the machine which was in fact supplied and erected by A. In defence to this action B pleaded ‘no title to sue.’ Held that, even if the contract was included under the assignation by A to the company (which was doubtful), it was not assignable, and that the plea of ‘no title to sue’ must be sustained.
Grierson, Oldham, and Company, Limited v. Forbes Maxwell and Company Limited, June 27, 1895, 22 R. 812, followed.
Opinion ( per Lord Kincairney (Ordinary) that, A having consented to the action brought by the company upon the contract, the fact of his consent might be taken into account in determining whether the contract had in fact been assigned by him to them, and that if the decision in this case had depended upon that question only, the plea of ‘No title to sue’ could not have been sustained without inquiry.
References: [1900] SLR 37 – 451
Links: Bailii
Judges: Lord Kincairney, Ordinary
Jurisdiction: Scotland
Last Update: 23 September 2020; Ref: scu.611714 br>