PENDLETON v. FERGUSON (1940)

Respondent has petitioned for a rehearing or a modification of our decision to the extent of affirming the judgment of the Superior Court quieting respondent's title to two of the five patents which are the subject of this action. The two patents referred to are No. 1837669 issued December 22, 1931 and No. 1872801 issued August 23, 1932. Neither of these patents is mentioned in the agreement of May 15, 1924, under which agreement defendants Ferguson and Automatic Deep Well Pump Company claim to have acquired the rights asserted by them to the remaining three patents. Said agreement, however, granted to defendant Ferguson the exclusive right to manufacture, lease, use, sell and distribute all pumps and improvements thereon in the State of California and Mexico covered by the patents mentioned in said agreement.

No issue was raised at the trial nor on this appeal as to whether the patents issued on December 22, 1931 and August 23, 1932, respectively covered improvements on said pumps and therefore passed to defendants Ferguson and Automatic Deep Well Pump Company under the terms of the agreement of May 15, 1924, and the record in this case is insufficient to enable us to pass on this issue.

We did not purport to pass upon this issue in our decision, and in the event of a retrial of this case it will be within the province of the trial court to determine the same. Respondent's petition for a rehearing or modification of our decision is therefore denied.

PER CURIAM.