The New York Herald Newspaper, February 19, 1859, Page 3

**affidavits there has been piled up the bills ‘was a right to the use of any renewed (or een eee ger ert it r ea eeed tnd ia wed he hight have an inte- rest, was then or might thereafter be issued. In this point of view, out taking any other view of the clause in question, the language of the t is broad enough to include a renewal (or ex- mn) of apatent issued to him. For “all pa- tents in which he might have an interest” include nt issued to him. the deed to the Naugatuck Company there is @ covenant by Goodyear as follows:—‘And the waid Charlies Goodyear does hereby, for himself, his heirs, executors, administrators and 1 C0" venant and agree to and with the said Naugatuck India Rubber Company not to make, use or vend. or to grant to any other person or company whatever other license to make, use or vend said prepa- fade or improveménts in the preparation of India rubber, or to apply the same to any of the c sto which the same can be usefully ap- Pies, daring the continuance of the lincense here- efore specified and granted to the Naugatuck Company.” reservations. The covenant admits that the rights granted by the license to the Naugatuck Company might come to an end before the expiration of right secured to Goodyear by patent, when Goodyear would be permitted to goon and make grants, And it is argued that if the license granted to the company by the terms of the grant was to continue during term of any extended patent, that Goodyear could not grant a right to use “said preparations” to any other person at any time; that there would be no time, after the time that the license to the Nangatuck Company was to continue, when grants to such other persons could be made unless such a construction is put upon the length of time that the grant to the company is to be enjoyed, as_ will limit it to the unexpired terms of the patents then in existence, and will not extend it for the term of @ renewed patent. In the indenture entered into between Goodyear and the Naugatuck Company, there are several covenants on the part of the company, which if they did not observe and perform, the license was to be void and of no effect. It is expressly provided that if the company shall for the term of one year neglect or refuse, or be unable from want of means, to prosecute the busi- ness contemplated, or to stamp the articles manu- factured, so that the object of the instrument should fail for said term of one year, then at the expira- tion of the year the license shall become and be void, and of no effect, after said year. When it thus becomes void and of no effect, Goodyear would have the right to grant licenses to use “said prepa- rations or improvements” named in the covenaat to whomsoever he pleased. When, therefore, the deed of the 24th of May, 1858, was executed, the license to the Naugatuck Company was in full force. While it remained in fall force Goodyear wos precluded from the right to make such a license as the laft mentioned deed to Day purported to make. He had, indeed, the right to sell for a stipulated price, or sum in gross, the exclusive right of making, using and vending said preparations or improvements, or of appl, the same, to or for any specitic purpos provided that before the sale the ga pany should have the right to become the pur thereof at and for such price or sum in gross; and such sale to a third person could not be made, ex- cept on the neglect or refusal, as aforesaid, of the Naugatuck Company to become the purchasers thereof. Goodyear never attempted to exercise this latter right. At the time the deed of the 24th of May was executed, the Union Company had succeeded to all the rights which the Naugatuck Company had acquired from Goodyear. And on the 28th of September, 1858, the said Union Company, for the consideration of the gross sui of thirty thousand dollars paid to Goodyear, and of certain tariifs eed to be paid, received a conveyance from him of a full and exclusive license, right and privilege to use the invention of vulcanized rabber, origiual- ly patented June 15, 1944, and extended tor seven eurs from the 15th of June, 1858, in the manufac- re of “all braided, woven, cemented or sewed fabrics, or such as are or can be covered or protect- ed, on one or both sides, with substances other than rubber, and in all smooth elastic shirred goods; and also to make and sell India rubber threads of vul- canized rubber, and all threads or sheets of rubber which are or can be made or finished by union with or are to be covered by fibrous substances.” Having disposed of this question, the necessities of the case do not require me to determine the other question, whether the deed of the 24th of May, 1858, is sufficient to convey the equitable right which it purports to convey, provided at the time it was executed such equitable right was vest- ed in Goodyear. And this opinion has already been so extended that I must avoid the discussion of any questions which have been presented, the determi- nation ot which is not necessary to a just disposi- tion of the case. From these views it follows that the motion for an injunction must be dismissed. THE OTHER SIDE. rgument of Hon. B. R. Curtis, on Motion 63 for Injunctions, January 8, 1859. UNITED STATES CIRCUIT COURT. Before Hon. Judge Ingersoll. Horace H. Day and others vs. Cary, Howard and Sanger. The Same vs. Peter Murray. The Same vs. Edwin A. Brooks. May it please your Honor: I believe it must be within your Honor’s judicial experience that par- ties, in their eagerness to appear to stand right be- fore the Court, not infrequently exhibit a great deal ofevidence which, when it comes to undergo a ee examination, is found to have very little, any, bearing upon the true merits of the case. And, it seems to me, that this case presents an eminent instance of this habit. The case turns upon the construction of certain deeds, and upon eir construction and legal effect, exclu- sively. And yet there is in the case what I may call amass of ex parte affidavits, concerning matters wholly extraneous to those deeds, numbering, I be- lieve, when taken all together, something upwards of one hundred; and upon this mass of giles ud an- and proofs, and accountings, and dicta, and opinions of @ past litigation between some of these parties and some other persons. The learned counsel for the defendants have set themselves down, very gallantly, before this heap, and have raked it over and extracted out of it a bit here and a bit there; here an act and there a declaration, something that has been done, or said, or thought, or intended, during a period of twelve years, by somebody or other, in some way or other connected with this subject matter, or something that some- body or other has omitted to do, or say, or think of; and out of these they have constructed, with very little aid, as it seems to me, of the deeds themselves, the work they present for the examination of your Honor. . Now, if this were a matter to be submitted to a Jury, to be decided by them upon some general, vague but forcible impression made upon their minds, 1 should look with great respect npon the skilful effort which has been made by the learned counsel on the other side, andto the best of m humble ability I should probably proceed, as well as I could, to imitate their example. But, inas- much as, according to my perceptions of what this case requires, it can never undergo a judicial inves- tion by your Honor, according to this method; and, inasmuch ek humble duty here consists in en- deavoring to aid the Court, to examine the case ac- cording to some true method, 1am forced to pur- sue a very different course. yaoi Certainly there is yo rule of law which is botter settled, or more impSrtant for the security of titles, than that which requires that deeds shall speak for themselves; that they alone are to be listened to, in order to ascertain what the parties meant in ‘transactions reduced to and evidenced by sealed instruments; that if their language can be under- stood, it is to be read and received in its natural sense. When difficulties arise in interpreting their language, those difficulties are to be solved by the application of those rules of interpre. tation whlch the long and varied experience of Judges has settled as safe and convenient; and if after the application of these rules doubts should still remain, then, with great caution, and under many restrictions, the Court may recur to a certain class of extraneous facts, not for the purpose of saying something which the deed has not said, but to to aid the Court to ascertain what the deed really means. These are familiar rules, and I shall endea- vor, so far as I can, to present this case to the Court in accordance with them. f The first of the deeds which comes in question is the earliest in point of time, and, in some aspects of this case, the most important, though in others it is unimportant. It is the deed of the 29th of October, 1846, in which Charles Good ar is the grantor and Horace H. Day the grantee. ow, I think it most important in considering this and before adverting to its language—to ask your Honor to apprenend what is the pre- cise point in controversy between the learned counsel and ourseives on the interpretation of this deed. That point in controversy respects ‘trae meaning and legal effect of the words which describe the subject matter of the t, viz, “the exclusive right, license and privi- jege to make, use and vend shirred or corrugated be renewed, This covenant was subject to certain goods.” The question is upon the true meaning and legal effect of those words, as they stand in this instrument. The learned counsel for the de- fendants maintain that these words, in this instru- meut, are to be read as if the grantor had said “my said shirred or corrugated goods.” That is, that this is a grant of one particular species or kind of shirred or corrugated goods, identifed and de- scribed by a silent but effectual reference to some- thing which precedes them in the deed. By a si- Jentbut sufficient reference—such is the argament, to thove terms which precede the granting part of NEW YORK HERALD, SATURDAY, FEBRUARY 19, 1859, the deed, the legal effect is the same asif the grant- or had said “my said shirred or goods.” On the other hand, we maintain these words mean what they say—shirred ar _corcnaea 0003. generally, and without restric this , the precise question between us. The learned counsel yesterday said that he did not deem it necessary to go out of this deed for the means of interpreting these particular words; that the deed itself contained a definition of those words; that they meant only what he (Goodyear) had de- nominated in his patent, shirred or corrugated ce Now, I am entirely prepared to concede, I ‘ink it must be admitted, tif Mr. Goodyear, at the time when he made this grant to Mr. Day, had only been the owner of the two patents for a par- ticuiar kind of shirred cr corrugated goods, and had proceeded to make the grant in the terms which are ere given, of “shirred or corrugated goods,” I think it must in fairness be conceded that the learned counsel’s argument would have been sound and cor- rect, and that, unless that interpretatiou could be in some way controlled by the other portions of the deed, the argument would have been conclusive as to this part of the case. Because, it would seem to be unanswerable that, inasmuch as it is the purpose of this deed to make a grant of an exclusive privi- lege—and the only exclusive privilege which the pom had and could convey was one arising under ese two shirred goods patents—his intent was to convey a privilege under those two patents, and an- der those alone, That would be, under those circum- stances, the only subject matter within his control upon which his grant could operate; and, therefore, the construction would be that it was designed to operate upon that, and upon nothing else. Far other- wise it is, however, upon the facta recited in this deed; for here it is recited that, besides these two patents named in the recital for whathe denomi- nated shirred or corrigated goods, Mr, Goodyear is the inventor and patentee of vulcanized rubber, which is capable of being applied, not only to shirred or corrugated goods made in pursuance of Goodyeas’s patent for the method and means of making those goods, but is also capable of bein; applied to other kinds of shirred or corrugate ods. ‘4 Thic vulcanized rubber is an essential part not merely of that kind of shirred goons which he himself had invented, but of any which he, or anybody else, either previously had or afterwards might invent. That takes away en- tirely the argument which is predicated on the “nature of the grant and the possible subject matter upon which it might operate. In the actual case before the court, Mr. Goodyear had the power to make a grantof an exclusive privilege to use vulcanized rubber, not merely in the particular kind of shirred or corrugated goods for which he had taken a patent, but in any other kind which he or anybody else might have invent- ed or might afterwards invent. Now, this being so, let us turn back once more to those words of grant. The grantor might have made a general grant of a privilege to use vulcan- ized rubber in any species o} goods. What has he done? corrugated goods,” fixing, identifying and restrict- ing the meaning, by refevenc particular pa- but general Words, “shirred or corrugated se of comprehending an, rwards to be invented. Were these words intended to comprehend an kind then existing or afterwards to be invented? That is the question. ‘The first rule of law which I suppose occurs to the mind of any lawyer, when thus considering general words, is, that any am- biguity ina grant is to be taken most strongly aguinst the grantor. And not only in the old law, but in modern times, has this rule been resorted to and in case which were very striking, certainly, ef by this rule to the judicial mind to conduct it out of difficulty. Thus, in one of the causes to which I have referred, decided in Massa- chusetts,a grant was made of land, bounding it ly on the sea or flats; the sea, under the aw chusetts, meaning low-water mark, and the flats meaning high-water mark; 60 that, in legal in- on, the deed gave one boundary upon mark, and another upon high-water fhe Court said, we cannot tell with cer- y from these words what was intended by these parties if we look merely to the words them- selves; we therefore call in aid the rule of law, that the grantor, if he puts an ambiguity in his deed, must take the consequences of that ambiguity; and e land is bounded by low-water mark. ‘So, in 3 to which I Lave referred your Honor, in Coke Littleton and other books, which I will not stop to detail, the rule itself and many applications of it being familiar to thejmind of the Court. But I do desire, in order to show how applicable this rule is to this case, to ask your attention to a reason which is oe by Blac! née in his Com- mentaries, why the rule has been established, or rather what is one of the reasons for it; and itis this: “That, hereby all manner of deceit in any grant is avoided; for men would otherwise affect ambiguous and intricate expressions.” It is to prevent a grantor, who has a secret knowledge of facts to which the words he be od would apply advan- tageously to himself and disadvantageously to the grantee, from using ambiguous expressions, and thus escaping, by means of them, from the true meaning of the words of the grant, as the grantee had a right to understand them. Now, let us see, may it please your Honor, if this reason has not a direct and immediate wd Mesos to this case. The defendants have put into this case an_affida- vit of one Onderdonk, one portion of which I desire to read to your Honor. He first begins by saying that, “being a licensee, Mr. Goodyear applied to him to get him to surrender his license, in order that he, Goodyear, might carry out an arrangement he had made with - Day; that he was unwil- ling to surrender his license, considering that it was a profitable business, which he desired to retain. Under this impr@pion deponent refused, at the soli- citation of Mr. Bishop, to surrender his license to Mr. Goodyear; that Mr. Goodyear applied qe lly to him at Now Brunswick, and urged him isent to such surrender; that at first this de- ponent persisted in his refusal, and Mr. Goodyear urged various arguments upon it; among others, » produced asmall piece of woven India rubber goods, which he showed to this i fie and said that that class of goods would undoubtedly super- sede shirred goods at some time; and this deponent recollects perfectly the piece of woven goods, and the remarks of Goodyear upon it; and that Good- year, among other things, said that when this woven ood’ became valuable this deponent might have a chance at it.” ‘This was immediately before this man surrendered his license. He surrendered his license on the first day of December, within a short time after the origiual grant from Goodyear to Day, which we are now considering, and béfore the entire transaction was completed between these parties. Now, | pray your Honor to consider this matter for one moment. Here is a grantor, who is settling a controversy with this complainant Day. It was to be an adjustment of a litigation; a species of contract which, as your Honor knows, is upheld by a court of equity, even with a strong hand, and against serious objection. It was a matter in which the parties were called upon, by every considera- tion of law and honor, to exhibit good faith fo- wards each other. Mr. Day, as they have read from his answer in the New Jersey case, and as is clear- ly ivferrable from this deed, had an expectation, rounded on the provisions of the deed itself, that ie was to have a monopoly of this shirred goods business. Mr. Goodyear knew that there was a secret deeply affecting the subject of his grant. He knew that althou, f woven elastic goods had long been known in the market, they were made of unvulcanized rubber, and therefore were of com- paratively little value; that the art of making these goods of vulcanized rubber had not yet been attained and made public; the difficulty being, as was explained to the Court by Mr. Bickerson, that, although you could weave the strands of unvolcanized rubber when they had been extended and their elasticity taken out of them, and restore their elasticity afterwards by the application of hot water, you could not treat vulca- nied rubber in that way. It was necessary to weave the strands while their state of elasticity continued, and the art of doing it had not become known to the public. Goodyear did know it. He knew it had been reached; and—as the defend- ants’ counsel now argue—when making an instru- ment for the purposes of peace, and with a view toa compromise, by gurrendering to Mr. Day the monopoly of the shirred goods business, he em- ployed these general words, having in his pocket at the same time another species of shirred goods, not made, as they say, in accordance with his pa- tent, capable of superseding in the market, aud, as the learned counsel tells your Honor over and over again, which has eee in the market the particular thing which alone, they say, was granted. Now, is not that an occasion for the application ‘of this old rule of the common law, that when a grantor employs general words they shall be taken most strongly against him; lest he, from his more complete and perfect we of the subject, should be able to commit a fraud or deceit upon his grantee? Unless these general words are con- strued generally, and so as to embrace every species of shirred goods, that fraud or deceit is perpetrated, and Mr. Day is deprived of what he justly supposed he was bargaining for. There is one other suggestion which I desire to make in this connection. I have already stated that the leading object of this paper, as recited in it, was a compromise of the litigation and disputes which then existed between the parties. “Whereas Charles Goodyear, or his assigns, have instituted various actions at law and in equity against Horace Hi. Day and his agents for alleged violations of all or some of the rights secured or mentioned in said letters patent, which actions are still pending, un- tried and undetermined. * * And whereas the said parties hereto haye resolved to settle all differences between them certain terms and conditions agreed upon een them,” the articles witness ie pas was the lasting object the deed; and should it not be construed in such a manner as most effectual- ly to carry out that object, aud if so, should @ construction be put uj the general words of the grantor, so retraining the 5 this restrict- ed meaning must ine Junge the parties anew into just such disputes as they were se! ‘The argument on the other side is, that what was intended to be granted was what was previously described in Goodyear’s patents for shirred Goods, nothing more. Well, must not papony, connecte: with the subject have foresee not Mr. Good- year know—that in the proarees of invention upon thie subject, other Jes,even_ if they had not then appeared, would appear, which would give rise to questions of the utmost difficulty as to whe- ther they did or did not come under that particular patent? The shirred goods complained of in this case can answer all the ends of such goods, are capable of coming into competition with them, and, as the defendants’ cot gay, can drive them out of the market. Goodyear knew ‘perfectly well that such goods then secretly existed. Must not any man in his senses connected with this business have foreseen that this might happen? And did not Day foresee it? The clauses of this deed, to which refer presen, will prove that this contingency was an- ticipated. Is an interpretation, then, to be adopted, by which these parties it have foreseen they would be plunged anew into difficulties, disputes and Jitigations like those they were then adjust gt There are affidavits, may it pleate your Honor, in this case to the effect¢hat, although the species of shirred goods against which we complain in this case are woven, still they come under Goodyear’s patent for shirred goods. Without entering fully into the reasons for this opinion, they may shortly be stated thus:—That woven shirred goods are capable of answering the same ends or uses as those made in precise and literal conformity with Good- year’s patent; that they are made by a combination of strands of vulcanized india rubber, so combined with some textile material as to make corrugated goods; and that the shirring or corrugation, to which particular quality of the goods all its uses are attributable, arises from identically the same cause in each—to wit: the pd sree in some mode of strands of such India rabber when extended, the release of those strands, their contraction by force r elasticity, and the consequent wrinkling or ion of the goods. I say there are affidavits is ease in sepport of that position. It seems to me to be a question of difficulty, I am not prepar- ed to say that, in my judgment, it is one way or the other, or to argue that it is one way or the other. But I am prepared to say, that it affords an illustration of one of the disputes which it must have been the purpose of these parties to avoid. When they settled their controversy, and allowed Mr. Day, as is agreed by the instrument, to have a monopoly of the shirred goods business, they could not have intended, I submit, to use language which should be justly interpreted so as to expose the parties to a renewal of the very troubles from which they were then making their escape. nother rule for the interpretation of deeds, in I believe to be equally well settled, is, that y part of the instrument is to be looked at. Not merely the words of grant which are themselves to be interpreted, but the entire instrument. As one of the old Judges said, every string must have its sound. I propose to ask’ your Honor to fol- low me in a brief analysis of this deed. I will first state what I believe will turn out to be true, that the: no provision in it, from beginning to end, which is not in entire accordance with that inter- prcedan of the general words which we seek to nave put upon them; that it contains provisions which it is highly improbable would have been in- serted if that were not the true interpretation; and still other provisious which are inconsistent with the restricted meaning which has been contended for by the learned counsel for the defendants. The first clause to which I shall ask your Honor’s attention, occurs very early in the deed, and under article 3:—“That id Goo year will not hereafter grant any right, license or agreement to any person 3, bodies politic or corporate, to manufac- nd’ or use corrugated or shirred goods, or to se or vend any of the aforesaid machinery, or to use any of his compounds in the manufacture of shirred or corrugated goods, and will not him- self manufacture or import any corrugated or shirred goods.” Now, here are two distinct joo dire te in this covenant. ‘The first is, that he will not license any person to use his shirrid goods patent; and the se- cond is, that he will not license anybody to use any of his compounds, that is, vulcanized India rubber, made with sulphur, in the manufacture of shirred or corrngated goods. What was the necessity for the second, if the grant is limited to corrugated goods under the patent? He hasalready covenant- ed that he will not license anybody ta make carrn. gated goods under the patent. go on, and say that he will not license anybody to use his com- pounds in making corrugated goods, unless, with- out the insertion of that stipulation, although he did not license anybody to manufacture under his atent, and so kept the first part of his covenant, e might have licensed somebody to make them not under his patent, but using the vulcanized rub- ber? The next section to which I ask your Honor’s at- tention is the 5th: “That said: Horace H. Day, his representatives and assigns, shall have and enjoy the like full, free and exclusive right, license and privilege to make the use, in the manufacture of shir- red and corrugated goods, all improvements made, or to be made, by said Goodyear, or of which he, his representatives or assigns, may become the holders or owners, for which patents have been or shall be obtained, which relate to shirred or corru- gated goods, or to the machinery for preparing or making the same, or the composition, stuff or fabric of which they ay be composed, or the machinery for pepe or finishing such composition, stuff or fabric, and also the right to use such improved com- position, stuff or fabric in the manufacture of all the other articles in these presents above enumerated.” It is not necessary to enumerate them, because they do not bear upon this case. Now, may it please your Honor, whenI come to remark upon that part of the argument of the learn- ed’counsel which turns upon the name given to things, and known to the trade, &., I shail have something to say upon the view, which I esteem an important one, that the subject matter of this grant was notan existing thing, like the grant ofa house or a horse, but is a license to be exercised in future, and to be exercised in a trade or art, which the parties themselves anticipated was in an advancing state, likely to undergo many changes, and for which they made every provision which the relative po- sition of the parties to each other rendered neces- sary. The truth was, as | have already stated, that although shirred goods, made by weaving with strands of native rubber, were well known in this market at that time, and will be found expressly referred to in this deed, as I shall presently show, yet shirred goods made with vulcanized rabber were known to nobody but Goodyear, and proba- bly one or two others, who had_ thus far kept the secret. Still, both parties anticipated that in the progress of this art, changes would be made, not merely in the method of manufacture, but, as is here fd ycaich in the composition, stwif or fabric, of which the shirred Ved are to be made, and inthe machinery by which the composition, stuff or fabric was to be wrought or composed. That was anticipated. Now, what have the par- ties agreed? “Why,” says Goodyear, “although an entire change should be made by me in the mode of manufacturing shirred goods, so that even the fabric shall be changed, and so that the method of making that fabric shall be changed, still, I agree that you are to have the benefit of those improve- ments when I make them, because, in substance and effect, they will be corrugated or shirred goods; and J not only agree that you shall have them if [ make improvements, but if I can acquire such im- rovements, owned or made by others, you shall ave the exclusive privilege of applying vulcanized India rubber to those improvements.” Now, what is the argument on the other side? Why, it is, that although it was the subject of an express contract and covenant that if Goodyear him- self should make an improvement by which the mode of manufacturing the fabrio or stuff should be changed, still it was all to come under this agree- ment. Mr. Day was to have it all.. If a third per- son should make such a change, Mr. Day was still to have it, if Mr. Goodyear could get it; but if Mr. Day himself should improve the fabric, he was not to have it; or if any third person should improve it, and Mr. Goodyear could not acquire it, Mr. Day could not acquire it and apply vulcanized rubber in its composition. Is that probable. Is it con- ceivable that parties should have dealt together upon that basis? I submit it is not. I now ask your Honor to turn to the covenants of Mr. Day, and to bear in mind before looking at the first of them that the precise question between us is, whether these general words “shirred or corru- gated goods” are to receive @ construction which shall limit them to a particular kind of shirred or corrugated goods, made under Charles Goodyear's sate for such goods, or whether they are to be ken in their general sense. This ‘covenant. is, that Mr. Day will ay to Mr. Goodyear @ tari of three ce wan yard for all shirred or corrngated goods, usit e same general words, to be made or used by him during the term of said patents or any of them. That is, if the state of should arixe, which in point of fact did arise, and which, from the dates of the respective patents must have been anticipated, that the shirred goods patent should expire, and that the ‘valoasieil patent should be still in force, the shirred goods patent bearing an earlier date than the vulcanizing patent, still Mr. Day was to go on and pay the tariff be- cause he was deriving the benefit of the vulcaniz- ing patent, that being one of the subjects matter La og 7 him. " hen they proceed to say: “It being understood and ogreed”—how, here is the quention solyed—"‘it considered as made and used under this agreement, tariff or sommes 00h neral words; they have expounded and ex- them; they have said, io as clans e admits of, that the con- “All shirred or corrugated goods of any kind”—not “my said shirred or cone: ited ence made under my'patent,” but all of any ‘ind, it is understood shall’ be considered as made and ers under this agreement. Ido not perceive Meant. how can be strengthened, but something may be added to it which is in entire conform with it, and that occurs in the same clause. There follows this covenant, an exception out of it. It is very to your Honor's mind that it would be absurd, as well as useless, to except out of @ cove- nant something which was not previously included in it by force of its tewms. When, therefore, we find ap exception, and look to see what this ex- cepten is, we can ascertain satisfactorily that, aside from the exception, that thing would have been included within the covenant. Now, what is the exception? “Excepting from the operation of this clause (that is, the agreement to pay tarif_s), however, all shirred or corrugated goods made with strands or threads of native or common gum, where such goods (that is, shirred or corrugated goods) may be manufactured by said Day, for the purpose of competing with such goods (that is, competing with shirred or corra- gated goods), and when so made, by him for such purposes, he shall not be liable to pay any duty or assessment thereon.” To understand correctly the inducement, meaning and fair scope of this exception, { think it is neces- sary to look, at one or two other things in the in- strument. Your Honor will find, by tuyning back to Mr. Goodyear’s fourth covenant, “that he, the said Goodyear, will, at his own expense and cost, prosecute all and avery person or persons or bodies corporate. who shalt infringe to the injury of said Day, in the use of the privileges hereby graated and conveyed, all or any of the patents above enumerated or referred to, by the manufacture or sale of shirred or corrugated goods.’ Anybody who makes shirred or corrugated goods to the in- jury of Mr. Day, and who infringes upon all or any of the patents, that is, the vulcanizing patent or either of the others, he will prosecute. Well then, it is manifest ‘that a contingency existed, and in point of fact was contemplated by the parties, of this kind. Here are makers of woven suspenders, who are mentioned below in the deed, who use strands of native or common gum. Says Mr. Day to Mr. Goodyear, ‘You caunot protect me against those; 1 must protect myself against them; I must doit by competition; and as you do not protect me, and I shall not use either of your patents, (for as I shall use native or common gum, I shall not use the vulcanizing patent, and as I shall make the woven goods, I shall not use the shirred goods patent), in- asmuch, therefore, as you cannot protect me against them, and as I must protect myself by com- pee and I am not to use either of your patents, ought not to pay your tariff on these goods.” “That is agreed,” says Mr, Goodyear, and then they insert this exception. Now, sir, does not that clearly show that what they are dealing with is woven goods, or some spe- cies of goods not made under-Mr. Goodyear’s cor- rugated patent? Because, if the goods with which he was competing, were made under that patent, they might be and were to be put down by suit on the patent, and not by competition by Mr. Day; and therefore it is perfectly manifest, taking these difierent covenants together—and the parties un- doubtedly took them together—that when he goes on to say that if he makes of threads of native or common gum, shirred or corrugated goods, for the purpose of competing with such goods, he means what he says, viz: That such goods, though woven, are corrugated goods within the meaning and un- derstanding of these parties, and would come under this covenant to pay tariff, unless they had been ex- cepted out of it ‘The words themselves declare them to be corrugated goods, for he callsthem such goods, preceded by the same descriptive words as ‘are found in the grant. All this, may it please your Honor, is very strongly confirmed by what appears in the third clause, called bad page 6:—‘Itis hereby mutu- ally covenanted and agreed, thatin the event of any other person than the said Horace H. Day, or those claiming through or by him as aforesaid, or by vir- tue of his assent or acquiescence, manufacturing or importing or selling shirred or corrugated goods, ‘ex- cept such shirred goods as aforesaid '—referring to the covenant which I have just read— made with strands or threads of native or common gum, such as ia ngw erally: ender akeres)” she dren thadshiall ned 4 profits. oe would accrue to fe 7 when in the exclusive enjoyment of the privileges above ranted,” then the tariffs are to be suspended. And ee again, the same views presented themselves to the parties. Mr. Day says to Mr. Goodyear:—‘Sup- pose you do not keep your covenant to protect me; suppose you do not bring suits in accordance with your agreement on all or any of the patents which may be violated, and thus fail to secure to me the monopoly; what is to be the consequence? I wish to have the tariffs anspended while you are thus in default.” “I agree to that,” says Mr. Goodyear, “put there are species of shirred or corrugated goods against which I cannot protect you, because in making them neither of my patents are infringed, and therefore I cannot consent to have the tariffs suspended simply because somebody is making shirred or corrugated goods not under either of my patents, and therefore we must make an exception of that.” But why make the exception, if Mr. Day had not the right within the subject matter of the grant, and within the intent of the parties as to the protection which Mr. Day was to have by the cove- nants to bring suits, nor within the clause by which Mr. Day agreed to bay tariffs? Why insert any such exception’ It was all outside of the contemplation of the parties, the learned counsel say, and is not to be found in the grant. I submit that this excep- tion is entirely inconsistent with the construction which the defendants would put upon this grant. Ihave made such observations as occur to me upon this particular deed. I wish now to tarn to the auxiliary articles, as. they are termed in the elf, and to the fourth clause in the second ii ticles, to be found on page 10. m the Naugatuck Eveopeny: of the right or license to make any articles which by the kefore mentioned agreement Day is licensed to make, shall be obtained and assigned to said Day simultaneously with the execution of said articles.” A release from the Naugatuck Dompaxy, of the right or license to make any articles which Mr. Day tificeneed to make by the agreement is to be ob- tained. No’ r, if we can find what release was obtained from the Naugatuck Company, and if we can find that it did contain the right to make other articles of shirred goods besides those under Mr. Gocdyear’s patent, that alone would be decisive; because here is a de- claration in writing, im an auxiliary a ticle, that what is agreed to be obtained from the Naugatuck Company is “ articles which Mr. Day is authorized to make” by the agreement. Before turning to the release itself, it is necessary to refer to that which has beenso mach commented upon--the license to the Naugatuck Company. And even before looking at that, there is another docu- ment in the case, to wit—the grant to Suydam, which bears an earlier date than the Naugatack Company’s license, and to which I must ask your Honor’s attention. It bears date the 24th day of May, 1844, and is an assignment by Mr. Goodyear to Suydam of the two patents for sl 1 goods— the patent for the manufacture and the patent for the machinery. It is the only instance which has met my observation in the course of these conve, ances in which Mr. Goodyear has parted with letters patent. All his other pers have been grants of rights under him as the holder of the le; title. Here, however, he parted with his entire title. He conveyed to Suydam, his heirs and assigns, “All the right, title, interest and ex- clusive privileges granted to me the said Goodyear, by the United States of Ame- rica, in and by certain letters nt, both dated the 9th of March, 1844—one for an_improve- ment in India rubber fabrics; the other, of the same date, also for improvements in India rabber fa- brics, to have and to hold, &c., all the improve- ments named in said patents, to him, his heirs and assigns, executors and administrators, as his own property, during the et term of said pa- tent.” ‘An assignment absolute and entire of these two patents, without any reservation whatever. So that at the time Mr. Goodyear made this license to the Naugatuck Company he had no more power to license that company to make shirred goods under either of these patents than he would have had if Suydam had been the inventor and Mr. Goodyear had never heard of it. And this both he and the Nangatuck Company very well knew; and, accord- ingly, they not only make no express reference to these patents, in the granting part of the license, and employ therein words descriptive of the hject of the grant, which are not properly sinficable to. shirred goods and ma- thine for making them; but, by the very last Snsterial clanse in deed to the Naugatuck Com- , your Honor will find that it is expressly de- Pad that the right to manufacture shirred goods is excepted from the be age of the instrument, in addition to the other exceptions previously ade. 80, then, the state of facts at the time this trans- fer was made by the Naugatuck Company to Good- ear, as it Airc i the deeds, was this;—The Yangatuek omy never acquired any license whatever from ar to manufacture shirred goods, under eit Goodyear's patents for shirred goods; but they did acquire a general license to use the vulcanized rubber for all purposes, with the —TRIPLE SHEET. gods ates Hee those ‘ents for those goods. they bad never had iubber to the those patents, or to use those patents in any manner, shirred goods than were and what the other deed was conveyed Goodyear, from the Ni luck Company, the right to make shirred be 3 under the patents. other words, they maintain that the deed from the Naugatuck Com- any to Goodyear, conveyed what the Naugatuck mmpany never had or owned; and did not convey what they did have and own. That is the which they maintain in reference to this deed. Now, I suppose, it is a fundamental rule for the interpretation of deeds, that they are not to be deemed to have been idle ceremonies; they must be allowed to operate, if by any construction? the: can be made operative, valeat quam pereat; and, therefore, if the language which was used by these parties in this deed were ambiguous, and difficult of interpretation, any doubts would be re- moved nee necessity of so interpreting the deed as to make it pass that which the grantor owned, and not to attempt to pass that which he did not own. I conceive, however, that when you come to look at the deed you will tind there is ‘no room for any such doubt or ambiguity; that itsexprese lan- guage must be overruled, in order to arrive at the conclusion for which the other party contends. Mr. ot ee had uot the extension. Mr. Curtis—I am awave of that; neither had the Naugatuck Company any license or right whatever in reference to the manufacture of shirred goods under Goodyear’s patents for the goods; Good- year did not own those patents, and could not con- vey, and did not attempt to convey, anything un- der them to the Naugatuck Company. I am going to deal with the subject of the right to the ¢ sioninthe Naugatuck Company preseatly in ano- ther conection. This deed is found on page 25. of the pamphlet printed by the complainants. It begins by reciting the indenture which constitutes the license made by Goodyear and the Naugatnck Company, beavi: date the 18th of July, 1=44, by which “the Charles Goodyear gave and granted uato the wee See India Rubber Company a fatl and s lute license to use any and all his preparations of India rubber, and improvemeuts in the preparation of India rubber, for manufacturing cloths or any other article of merchandise, or any arti which the same may be applicable, for and during the unexpired term of all patents issued to said Charles Goodyear, bearing any date whatever; and, further, as in said articles will more fully and at large appear.” Now, if your Honor will observe these recitals you will perceive that they do not contain a word about the shirred ol patent or shirred goods machinery. What they say is, that they have ac- quired from Goodyear a full and absolute license to use any andall his preparations of India and improvements in the preparation of Ind ber, for manufacturin cloths and other articles of merchandise; no allusion is made to the shirred goods patents, nor to the machinery for making them. ‘ And whereas .the said Naugatuck India rubber Company has agreed to, and with said Charles Goo year to release and assign and trans- fer to him all right, license and privilege which they hold (not which they did not hold), under and by ‘virtue of said indenture, to use the improve- nients of said Goodyear in the preparation of shirred or corrugated goods, India rubber pipe,” Ail which they held. As is agreed on ali hands, both by the learned counsel on the other side and our- selves, they held the right to apyly to other kinds of shirred goods, vulcanized rubber, and not the right to apply it to this particular kind of shirred goods described in Goodyear’s patent for shirred goods. And then they go on and say, after this recital, declaratory of their intention: ‘Now this indenture witnesseth that the said Nangatack India Rubber Company, for andin consideration of the sum of one dollar, &c., have remitted, released, re- assigned, transferred and granted unto the said Charles Goodyear, and do hereby remit, release, re- assign,transferand grant unto the said Charles Good- ‘heer his Re peemee and assigns, all and singu- lar the right, license and privilege which the said Naugatuck India Rubber Company has, claims or ossesses under said indenture so made with said Sharles Goodyear, or by any other means whatso- ever, to use in the preparation of any shirred or cor- yi in ae wns . s Goodyear, claimea By Ey ‘Pada a¥RMEBE ef said of which he may be the inventor or possessor; and also any Tight which, by the means aforesaid, or otherwise howsoever, the said Naugatuck India Rubber Company may have to manufacture shir- red or corrugated goods.” And then, not content with that, they proceed to covenant that after the first day of January, 1847, “they will not manufacture or cause to be manu- factured, or be directly or indirectly concerned in the manufacture of shirred or corrugated goods.” Now, I submit that when there precedes this grant to Goodyear a covenant on his part that he will get from the Naugatuck Company the right to make such things as he has intended to assign to Mr. Day the right to make—and when he fewer to take from a company which never had any right or license under his corrugated goods patent, what they call a reassignment of all right and title to make shirred or corrugated goods—~and when it oe that that company, though they had not the title to make shirred or corrugated goods under the patent, had a right ora tiile to make other kinds of shirred goods—I submit that this is that conveyance of other kinds which he has obtained in order to satify his covenant with Day. And in precise accordance with that he proceeds immediately afterwards to assign whatever he got from the Naugatuck Company to Mr. Day. “For and in consideration of one dollar, to me in hand paid by Horace H. Day, and in pursuance of my covenants and stipulation so to do, I, Charles Goodyear, have assigned, transferred and set over, and do hereby assign, transfer and set over to the said Horace H. Day, the within license and ‘privi- lege (it being endorsed upon the original liceuse or deed bi gps a a this), and all rights thereby granted and conferred, and all the assignments thereof, in order that the said license may be cancelled.” Now, I desire to pause for a moment, to say a word or two as to the legal effect of this. Goodyear had transferred to the Naugatuck Company, em- braced in the general grant, the right to apply vul- canized India rubber to shirred or corrugated goods not made according to Goodyear’s Loree has taken a reassignment of it to himself. He hi previously covenanted that he would obtain from the company the right or license to make any arti- cles which by the before mentioned agreement Mr. Day was licensed to make, and that he would assign ittothe said Day simultaneously with the execu- tion of said articles. He says he is making this assignment in pursuance of that stipulation, and he uses language which, in point of law, is amply sufli- cient to pass to Mr. Day whatever right or title had been assigned to himself ib a within instra- ment, and to vest it in Mr. Day. He con- cludes. by ‘saying that this assignment has been made to Mr. Day in order that the said license may be cancelled. Whatis the meaning of that? Itcan have but one meaning. It cannot mean that the original deed of license to the Naugatuck Coaapeny is to be cancelled, for every- body knows that it is not to be cancelled. This right has been taken out of its operation by a reassignment, but the deed is to stand, and all other rights under it are tostand. It does not refer, there- fore, to the cancellation of the deed; it refers toa termination of the right, by taking it out of the Nau- gatuck company, and i putting, it into Mr. Day. It is to be cancelled by the means which the parties have selected for that ) dood tos) that is, to merge it in Mr. Day’s title, and thus terminate it by the means which they have selected; and that, I conceive, to satisfy entirely the meaning of these words: “That the license may be cancelled.” So far asthe Nau- mp ing ed were concerned, it is to be as if it nts; ad never been granted to them. So far as Mr. Day is Lo eg it has been transferred to him by Mr. Goodyear. all ‘have occasion hereafter, when I come to consider the title of the Union India Rubber Com- pany under the pre-emption grant, to return to this Pinject for a moment; but There leave it for the resent. " 1 will now ask Phe Honor’s attention to some of the arguments which have been used on the part of the defendants, to show that the interpretation which they rely upon is not correct. One, and that which, so far as Ihave any judg- ment concerning it, is the most important and resaing of these arguments, is derived from the eed of December 5, 1846, from Goodyear to Day, being the last of that series of instruments which was executed between the parties. The ground taken by the other side is, that the purpose of these instruments was to supersede all the preced- and that, therefore, in order to ascertain what was actually 1d by Goodyear to Day, this instrument alone must cna And then the learned counsel proceeded to read the instru- ment, and to show, according to their interpreta- tion of it, thatthere is a privilege ps |, Which is restricted to “shirred or corrugate: Cpe in said nts mentioned,” and that Mr. Day is authorized make such shirred or corrugated goods only. I do not know that I have rightly apprehended, or that Ican correctly analyse, precisely what is meant by “guperse On bo of the ithe grant and agreements.” Nth day of October maintain is, that by that: and which, therefore, as they manifest determination of the parties, would, in that < supersede the former. But this is as far ag I can carry it. Unless this deed operates in one of those ways I am unable to perceive how it is to aflect the former grant. Uuless it releases something, or contains a declaration, or was d d to contain a declaration of what was intended by the former grant, or unless it contains some inconsistent covenants, or some release of covenants, | am un- able to perceive how the second deed is to operate upon the first. Ido not believe that it makes any difficulty when we come to understand what the real purpose and office of this deed way. So far from having either of the effects to which I have adverted, it was intended in aid of, and for the more complete execution of the preceding grant and the covenants which followed that grant in the auxiliary articles. Certainly there is nothing in this deed to regrant anything hat had once been con- veyed, nor anything in it which undertakes to de- clare the meaning of the preceding grant, or to re- He ied @ covenant, or to insert an inconsistent cove- bant. What, then, was the intention of this deed? It begins by reciting, that “whereas I have agreed to assign to Horace H. Day, of Jersey City, the sole and exclusive right to make, use and sell to others, to be used, shirred or corrugated goods.” Agreed to assign? Why, he had assigned it; he had n= ed it by the instrument of the 29th October. this instrument, as your Honor will remem- ber, contains an exception. It is found in can be, repurchase and canse to be cancelled, the second covenant, “that said Goodyear will, at his own cost and expense, and as speedily as alland every contract, assignment, license, privi- lege or agreement made or granted by him, or others claiming by, through or under him, except the three hereinbefore mentioned;” that is, the licenses to Onderdonk and Letson, lord & Co., and Jlutchin- son & Runyon. Those were outstanding; he did not agree to get them in; but afterwards, alter the ex- ecution of this deed of the 29th of October, he pro- vides, in the second memorandum of our agree- ment, the he will get them in: “The said Charles Goodyear hereby covenants and agrees, to and with the said Horace H. Day that he will procure, and cause to be assigned to the said Day, to be cancelled, the three certain licenses specified and when Hoe In the articles to which these are addi- tional.” What, then, may it please your Honor, is a pro- per interpretation of the words of this recital in the deed of the 5th December, 1846: “Whereas I have agreed to assign to Horace H. Day, the sole and exclusive right.” He had executed his agreement in part by the deed of the 29th October, bat notin whole. There were oustanding rights which he must get in, according to his contract, and he must transfer to Day, by some effectual means, the residue of the title. ‘hat undoubtedly 1s meant here, when it is said thet “he has agreed.” So far as it was executory, it related merely to these agreemen' PS un to say:— Inc e thousand dollars to me paid by said Day, and of the conditions hereinafter contained, I have assigued, sold and set over, and do hereby assign, seli and set over to the said Day, his executors, administrators and assigns, the sole and exclusi' i icense and privilege for the whole United States, to use the machinery in said before recited patents described, and to make and vend the shirred and corrugated goods in said pa- tents mentioned.” Now, here, may it please your Honor, are four patents, and shirred and corrugated goods are men- tioned only in two of them:— “And to use in the preparation thereof, also in the preparation and manufacture India rubber hose, &c., the compounds, xe., in said letters patent described, for and during the term of said letters patent, and all re- newals and extensions thereof.” Goodyear grants to Day the license to make such shirred or corrugated goods, and “to use in the manufacture of such shirred or corrugated goods, all improvements in the composition, or fabrics, or machinery aforesaid, or new compositions, fabrics or machinery to be made by said Goodyear, and for which said Goodyear now holds patents, or may obtain or hold patents by grant, purchase or other- wise, for and during, and until the expiration of the patents, an exclusive right whereunder is above contained, and of all renewals and extensions there- awe iq al ing te thio provision, RS Buch “shared oe ee goods; but there follows in the same breath a statement simi- Jar to that which was contained in the main instru- ment, to wit: that if Mr. Goodyear should make an invention, even if it should be one affecting the fabric, or mode of composition, or the machinery by which the manufacture is to be carried ‘on, no matter how great the change or improvement may be, still, as long as itis substantially shirred goods, it is to be deemed within the grant. And then comes the same inquiry in reference to this instrument, so far as this undertakes to convey anything, whether it was the intention of the parties, that if Goodyear or any third person made these inventions or acquired them, Day should have the right to use vulcanized rubber in the new fabric, but not if Day himself made the invention, or acquired it froma third person. Ido not propose, however, to pause any — upon this instrument, because Lconceive that it is im- pepe to maintain, in accordance with any rule of aw, that it was any part of the design of these parties, viewed in the most popular manner, and aside from the strict means to be used to accom- plish such an object, to supersede the agreement and grant of the 29th October. Does any man sup- pose that after this agreement had been made on the 5th December, there were no longer any covenants in existence between these parties? That Day had not entered into very specitic and carefully limited covenants? That Day's covenants were not in existence, and Goodyear'g conyenants were not in existence, and that he was no longer bound to prosecute infringers, nor to rotect Day in this monopoly; that he was no fooger: bound to allow the tariflsto remain uncol- lected unless he failed to protect him? Why, it is impossible to suppose that the parties being aa fectly silent on all those subjects had intended by this Tiptcument to put an end to these convenants. And if not to put an end to them, or in any manner to modify them, what possible ground is there for the-belicf that they meant to alter the language of the grant contained in that deed? Were not the covenants designed to correspond with and fortify the grant? Is not the covenant to pay tariffs upon all kinds of shirred or corrugated goods, no matter what the fabric may be? Isnotthat covenant to pay tariffs based upon the grant and intended to be co- extensive with it? Andif the parties to this deed had no intent to disturb or circumscribe, or in any manner to alter the subject matter of that cove- nant, under what rule of law, or what dictate of common sense, can it be said that this instrument is to have the effect to disturb the grant to which that covenant relates? ~ The gentlemen have read from an answer in chancery of Mr. Day, made in a suit in New Jersey, which they rely upon to show that the instrument ought to have mash an effect as they have been con- tending for; but I cannot conceive how any such inference is to be drawn from it. “This defendant farther answering, says, that on and of. ion to the completion of said agreement, it was deemed advisable bs that there agreement founded on said new and extended con- tracts to be prepared and filed in the Patent Office. This defendant says, that thereupon such a form was provided by mutual consent, and filed in the Patent Office; but this defendantsays it was no other said Goodyear and this defendant ould be a short form of assignment an or new agreement, but was part and parcel of the agreement above set forth.” What was this agree- ment above set forth? These additional articles, by which it is stipulated he will obtain this outstanding title and transfer it today. He says, “on the com- pletion of said agreement”—and he has just recited these additional articles—“‘it was deemed advisable by said Goodyear and this defendant that there should bea short form of assignment S26, are ment founded on”—what? Founded on in- tended to control the original deed of the 29th Oct; founded on said new extended contracts to obtain the rest of this title, and to be prepares and filed in the Patent Office. He says that a form was pre- ared by mutual consent, and filed in the nt Bice, but it was no other or new ement, but was part and parcel of this above set forth.” Not the whole, not embracing—to use the language of tween the learned counsel—the entire bar; the parties, and intended to su; evel that preceded it, but intended to form what it does form, to wit,@ consistent part and parcel of the entire whole. There were one or two other made by the learned counsel which see to me to be Jess im, but in reference to which I wish to ; one of which was in reference to the provision contained in the deed of Oct. 29, that pay by the square Lig sion, it was claimed, was weighty, if not to show that it could not have been intended to license to man an article like ndera. If your Honor will look at the atuck license, which is broad enough, confessedly, to cover Lge and many other small articles, you find ft is there vided that they are to pay a certain tariff, acct ig to the square yard. that that argu- .