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2d 860
This is an appeal from a judgment of the United States District Court for the
Southern District of New York, Milton Pollack, Judge, dismissing an action for
breach of contract to pay royalties on a toy called the Water Basketball Game.1
Judge Pollack concluded from the "unambiguous" terms of the license
agreement that no royalty payments were due, and gave summary judgment for
the defendant. We reverse. We think that the license agreement is ambiguous
on its face, and that a trial is necessary to clarify this ambiguity.
patent applications. A patent did in fact issue on the Water Basketball Game,
which is admittedly not an "inflatable target toy," and when Ideal refused to
make royalty payments on this toy, plaintiff commenced this action for breach
of the license agreement.
3
Whether royalties are due on the Water Basketball Game depends on the
meaning of paragraph 7(a) of the license agreement, which provides that if any
patents should issue from the then pending patent applications, then Ideal
shall receive an exclusive license under said patent or patents for the life thereof
without any further payments other than those provided for hereunder, and
under the same terms and conditions as set forth herein. [Italics added.]
second is that royalties are due on all licensed items, at the same rate and under
the same terms as provided for inflatable target toys. The phrase "without any
further payments other than those provided for hereunder" seems to
contemplate that Ideal will make some sort of payment in return for the
exclusive license, and the phrase "under the same terms and conditions as set
forth herein" might well mean that royalties are to be paid on the Water
Basketball Game at the same 5 percent rate applicable to inflatable target toys.
8
Since both are possible interpretations, we think there was a factual question as
to the parties' intent which could not be resolved on a motion for summary
judgment. Union Insurance Society of Canton, Ltd. v. William Gluckin & Co.,
353 F.2d 946, 950 (2 Cir. 1965); Cram v. Sun Insurance Office, Ltd., 375 F.2d
670, 674 (4 Cir. 1967); Socony Mobil Oil Company, Inc. v. Humble Oil &
Refining Co., 387 F.2d 155, 157 (10 Cir. 1967).
10
Where, as here, the contract is ambiguous on its face, extrinsic evidence may
be introduced to show what the parties intended at the time they entered into
the contract. Union Insurance Society of Canton, Ltd. v. William Gluckin &
Co., supra, 353 F.2d at 951; Interpublic Group of Companies, Inc. v. On Mark
Engineering Co., 381 F.2d 29, 32-33 (9 Cir. 1967). It is unclear from the
agreement whether there is an obligation to pay royalties on the Water
Basketball Game, and we think that the parties were entitled to have the trier of
fact hear evidence as to their intent before deciding the question. We therefore
reverse and remand for trial.
11
Notes:
Notes:
*
Still pending is a claim by plaintiff for patent infringement on a toy called the
Elephant Ring Toss Game. This toy is specifically excluded by the "defining
clause" of paragraph 2, although Ideal is apparently licensed to make it under
paragraph 7. Judge Pollack denied Ideal's motion for summary judgment on the
Elephant Ring Toss Game, holding that the two paragraphs were
"irreconcilable" without extrinsic evidence as to the parties' intent. Since the
denial of a motion for summary judgment is not a "final decision" under 28
U.S.C. 1291, Chappell & Co. Inc. v. Frankel, 367 F.2d 197, 199 (2 Cir. 1966)
(en banc), the ruling on the Elephant Ring Toss Game has not been appealed
and is not before us. The ruling on the Water Basketball Game, however, is
properly appealable under Rule 54(b), since this is a situation where there are
multiple claims, see Gottesman v. General Motors Corp., 401 F.2d 510 (2 Cir.
1968), and since Judge Pollack made the requisite certification of finality.
which contain claims covering said inflatable target toys as manufactured, used
or sold by Ideal, shall not pay royalties in the minimum amount of Five
Hundred Dollars ($500.00), or make a minimum payment in said amount, then
Lemelson shall have the right to make the license granted hereunder nonexclusive.