M'Dowell v. Meredith , 4 Whart. 311 ( 1839 )

The opinion of the Court was delivered by

Gibson, C. J. —

It was difficult to describe with greater accuracy, the right sold. The patent was granted for an improvement by the adaptation of a grinding apparatus to a shelling machine; and the subject of the sale is alleged to be a shelling and grinding machine together. Now the defendant disputed not the vendor’s right in respect to the apparatus, but only his right to the original patent; and hence he might strictly describe the subject of his defence as a failure of consideration in the sale of a patent-right for a shelling machine, the title to it being in another. Rut independently of that, the subject of the defence was suggested with sufficient accuracy to put the plaintiff on his guard, which it is the business of a notice of special matter to do; for it certainly is not to be scanned with the severity due to a special plea in bar. The defence was an equitable one; and it is by no means clear that it was not set forth with the certainty required in a bill for an injunction. The exception to the specification of the improvement on the ground of variance, therefore, fails.

But the paper was offered to show what the patentee himself claimed to be his right; and it had been furnished to the defendant several months after the delivery of the conveyance, by the vendor’s agent, who had negociated the sale: whence an objection that the plaintiff is not to be affected by acts or declarations of the agent subsequent to the agency. It is not clear, however, that the agency was closed while any thing remained to be done for the completion of the sale; and it is certain that a delivery of the muniments of title, was as much a part of the agent’s duty as was a delivery of the conveyance. That is not all. The agent testified that he had informed his principal of his delivery of the specification; and if the act were done without his authority in the first instance, he was bound promptly to disavow it. He did not disavow it, and his silence was full proof of acquiescence; consequently there was either an original authority, or a subsequent ratification which is equivalent to one.

But it is insisted, that the deed actually purports to convey no more than the right to the improvement; and that it consequently ought to have been excluded. The descriptive words are, “ all the right, title, and interest of the said Weaver in a certain corn-shelling and grinding machinewhich might well bear the attempted interpretation, were it not for a preceding recital, that “ the said George M. Weaver did forward to the United States patent-offiee his specification of Ms corn-shelling and grinding machine, which invention is secured to him for the term of fourteen years.” Not a word in this to indicate an interest restricted to the improvement; but, in the absence of the specification which had not then been produced, there is every thing to indicate an interest in every part of the invention. What avails it then that he sold only his interest in the machine such as it might be, when the descriptive words were coupled with an assertion, that the whole was his own I

All the answers to the prayers for direction, involve points already disposed of, except the refusal of the Court to submit the construction of the patent and the conveyance to the jury. It evidently, however, belonged to the Court to say whether the patent embraced any thing but an improvement, and whether more was not sold. This comprised the whole case; and whether the jury believed the witnesses or not, the plaintiff was not entitled to recover.

Judgment affirmed.