Dyer v. Rich , 42 Mass. 180 ( 1840 )

Shaw, C. J.

One objection to the recovery of the plaintiff 's, that his deed to the Rockingham Manufacturing Company bears the date of the 28th of January, 1836, and that the company was not organized until the 10th of February, 1836, though incorporated the November preceding, and in fact this agreement is made the 22d of January, 1836, before the date of the deed and the organization of the company. But we think there are several answers to this objection. A date of a deed may always be controlled by evidence of the actual delivery. Here the agreement recites the deed, and recites that it was then made and so made at their request, and this is conclusive, that the deed was then made, and the date is immaterial. But as to the other part of the objection, that die company was not then organized, we think that was the affair of the defendants, and not of the plaintiff. He made the deed at their request, and that was a good consideration for the promise.

But we have no doubt that the deed thus made to a company incorporated, would enure to their use when organized, at least by way of estoppel, and be good against the grantor, whether it took effect on its delivery, to pass any property, or not.

The second ground of exception is, that there was no demand made by the plaintiff for the shares, previously to the commencement of the action. In answer, it appears to the court, that no demand was necessary ; not upon the company, because the plaintiff had no claim upon the company ; nor upon the defendants, because the conveyance was not to be made by them. But a more satisfactory answer, perhaps, is to be found in the stipulation of the defendants, that the plaintiff should receive the ten shares in the capital stock, made up as therein expressed, and no act seems to have been contemplated to be done on his part. This stipulation was, that the plaintiff should receive ten shares of the capital stock of said company, to be made up to $ 100,000, of which the patent right should be $20,000, and that such stock, so made up, should be divided into shares not exceeding 200 ; so that each share should be of the par value of $ 500. The stipulation on the part of the defendants was, that if within two years die plaintiff did not receive a transfer of ten such shares, they would pay the difference in cash, on demand. No demand of the shares therefore was requisite ; and as to Iha demand provided for in the agreement, it was to pay money on demand. And the smpe requisitus contained in the writ, is all the demand necessary to be averred, and by a well known and familiar rule of law, no other proof of that averment is required.

The defendants further object, that there has been a failure of consideration. To support this exception, the grounds already suggested are relied upon, viz. that the deed was not made till after the agreement, and that the company was organized still later. The answer, which seems to the court conclusive, has already been given. The recital shows that the deed was then given, and the existence and delivery of this deed on request, was a good consideration.

Another exception to support this ground of want of consideration is, that the oatl) taken by the patentees was not taken in the form prescribed by law, one of the patentees being an alien resident. It is said that the form of the oath sho'uid'Be, that the patented improvement has not been known or used in this or any other country. Whether the oath be or be not sufficient in point of form, the court are of opinion that the taking of the oath in due form, is nqy condition precedent to the validity of the patent. It hastien so held by the learned judge of the circuit court for tffi^Krcuit, and we think upon good reason. 1 Gallis. 433. T"Ratute is directory to the officer who superintends the letters patent, but is not a condition to the validity If in truth the invention is not new, and the use original, it will vacate the patent, whether the oath be eral other answers were made to this exception, but we opinion that the one given is decisive, and renders it un« ^ssary to go into the answer more at large.

The contract being to transfer shares of a stock specially described, namely, 10-200th parts of a stock made up to $ 100,000, including the patent right estimated at $ 20,000, the court are of opinion, that the tender of 10-70ths of a stock of a very different description, was not a compliance with the defendants’ con tract, and therefore the plaintiff is entitled to recover.

As to the rule of damages, the court are of opinion, that the plaintiff is entitled to recover the value of the ten shares, such as they would have been worth, had the full $ 80,000 cash capital been paid in, in addition to the $ 20,000, which was the esti mated value of the patent. The question for the jury is, what would have been the value of ten shares, in such a capital stock, raised for and appropriated to such a branch of manufacture, had it been made up at the time stipulated, and the company ready to proceed in good faith to operate upon such capital pursuant to their charter. It might have been worth somewhat more or less than the par value ; so much as it would have been worth in money, we think the plaintiff entitled to recover.

Unless the parties agree upon the amount of damages, the case will be put to a jury on that single point.