The New York Herald Newspaper, July 29, 1859, Page 9

———— IMPORTANT DECREE on FINAL HEARING IN FAVOR OF BMonace ™M. DAY, AFFIRMING HIS TITLE AND EXCLUSIVE RIGHT TO THE USE OF VULCANIZED RUBBER IN ALL ELASTIC FABRICS, <OIRCUIT COURT OF THE UNITED STATES, DISTRICT OF MARYLAND. Horace H. Day et. al. 0s. John Stellman et. al.— Deoree of Judge Giles, on final hearing on pleadings and proofs, reported by W. H. Burr, and revised by ‘the Court. Grixs J.—The case of Charles Goodyear, Horace ‘Hi. Day and Alexander Hay vs. John Stellman and others, occupied the attentfon of this Court some nine days, and was argued with an ability and intelli- gence on both sides scarcely ever Leadergead andI only repeat what I said the other day, that through- out the entire argument the Court never wearied or lost its interest in it, feeling that the case was full of most important and interesting questions; that there must be, from all the surrounding cir- cumstances, large amounts involved in the true de- cision of the controversy; and that it was euly ano- ther evidence of the value of the patent of June 15, 1844, which has rendered the gum of a South American tree one of the marvels of the day in its manufactured state, at itto be used advan- tageously in almost every department of industry and to minister to man’s comfort in a thousand wi ‘ince the adjournment of the Court Thave very carefully examined the evidence in the cause con- tained in the depositions and documents, and having made up my mind in reference to the disposition of the cause, I have thought it best not to wait to prepare a written opinion, but to announce it as goon as possible. I prefer to do this in all cases, because it enables me to do more jnstice to the ape of counsel while they are fresh in the mind of the Court, and I take that course now, in this case, rather than let it pass over the summer vacation, and decide it in the fall. The bill was filed on the 16th of December last. It set forth that letters patent were granted to Charles Goodyear on the 15th day of June, 1844, for a new process of preparing india rubber for manufactures, that sai ee was subsequently surrendered oa account of defects in its specifica- tion; and on the 25th of December, 1844, two new patents were granted to Gongeare ana for an im- rovement in felting India rubber with cotton fibre which we have nothing to do in this case), and the other for an improvement in processes for the manufacture of India rubber; that these two atents were for the term of fourteen years from e 15th of June, 1844; that the Commissioner of Patents on the 14th dey of June, 1858, after full ar- | ent, granted an extension of said patents for fie term of seven years from the 15th of June, 1858; that subsequenjly Boog eaes, Ui) several instru- ments made in 1846, sold and assigned to Day, one of the complainants, the said patents so far as re- lated to the preparation and manufacture of shirred or elastic India rubber goods, onrene in so far as the right to manufacture said goods had been part- ed with by Goodyear by three several licenses, viz: To Hutchinson & Runyon, Ford & Co. and Onder- donk & Letson, which said licenses were duly as- Higned. to the said Goodyear subsequently, and by assigned to Day. It then sets forth that in October, 1852, Day as- Bigned all his interest under this contract to Wins- low, Syms & Gilbert; that these parties assigned it to the ‘Congress Rubber Company, a corporation of the city of New York and that said company in 1857 re-assigned the interest to Day; so thatall the | interest conveyed by the contracts of 1846 are now vested in Day, except a small portion which Day parted with to his co-complainant, Hay, on the Ist of October, 1858. The bill further sets forth that Goodyear, on the 28th of May, 1858, conveyed to said Day “ the full, absolute and exclusive license, right and privilege to make, use and vend his, the said Goodyear’s in- vention of vulcanized rubber, as described and pa- tented in the reissued patent granted to him on the + 25th day ot December, A. D. 1849. for the present and all extended or renewed terms of said patent, as the same may or can be used in the manufacture of all braided, woven, cemented or sewed fabrics, or such as are or cin be covered or protected on one or both sides with substances other thanrubber, and in all smooth, elastic shirred goods; and also to make and sell India rubbor threads of wulcaniacad rubber, and all threads or sheets of rubber which are or can be made or finished by union with or to be covered by fibrous substances.” It then sets forth that in 1850 Goodyear instituted suits in New Jersey in equity and at law against Day, which were heard before the Circuit Court of New Jersey, in which the ne aed these patents was menitaRed, as reportedin 2 Wallace, Jr.'s Re- jorts, page 283. = It tutther avers that the defendants in this case have violated the Beene of June 15, 1844, as re- issued December 25, 1849, and extended on the 14th day of June, 1858, by selling large quantities of sus- penders which are made of vulcanized India rabber, and are shirred or corrugated goods; and it prays ‘an injunction and account. < ‘The defendants, in their answer, set up as their defence, that the complaintants, Day and Hay, have no title to the said patent for the purposes set forth in said bill; that by the contracts of 1846, set up in the billand relied upon by the complainants, Good- year, on certain conditions, granted to Day the pri- vilege of using vulcanized India rubber in the manu- facture and sale of corrugated or shirred India rub- ber goods, which are described in the patent of March 9, 1844; that the defendants have not, since the 2d day of October, 1858, sold any corrugated or shirred India rubber goods so made under the pa- tent of March 9, and that they have done nothing to infringe any rights held by the complainants. They admit that they have sold goods composed in part of vulcanized rubber, which the com- plainants have a right to manufacture and sell; but they claim that the right to manufacture such goods is vested in other parties under certain as- signments from Goodyear; and they set up the contract of the 18th of July, 1844, between Good- year and the Naugatuck India Rubber Company, and several assignments which vested its rights in the Union India Rubber Company. Two ements have been filed in this cause, one setting the cause down for final hearing and arrang- ing the terms of a decree, if the Court should de- cide in favor of the complainants, so as to dispense with the trouble and delay of taking an account; andthe other in reference to the testimony on which the case has been heard. So that the cause has been heard under these agreements on final hearing, and is now before the Court for final de- cree. The title of the complainants rests upon the con- tracts and assignments of 1846, and the deed of as- signment of May 24,1858, and the decision of this cause rests on the construction which the Court oy give to those instruments. the first question under the contracts of 1846 is, What did Goodyear assign to Day by the paper of the 29th of October, 1346, the first in the series? Tee complainants allege that by that paper Good- your assigned to Day the right to manufacture all india rubber goods that were shirred, and to use in the manufacture thereof Goodyear’s invention of vulcanized rubber, as patented to him onthe 15th of June, 1844, and re-issued on the 25th of Decem- ‘ber, 1849. Onthe other hand the defendants al- lege that the term “shirred or corrugated goods,” as used in the contracts of 1846, is limited and was intended to be limited to the goods made under the patent of March 9, 1844, and does not include a, other “shirred goods” which might be made of vul- canized rubber. The first thing which we ascertain in the exami- nation of this contract is, that by its terms, it in- cludes all India rubber goods that are corrugated or shirred; “shirred” being a technical term meanin; “wrinkled,” or “contracted.” Upon the face o! the paper then it includes all India rubber goods that are made with vulcanized rubber, and that are ~ “wrinkled or corrugated.” “Corrugated” is anoth er term which means the same as “wrinkled” in the English language. Now, is there anything in the er itself, in the surrounding circumstances, or ie subsequent conveyances, to narrow the broad language of the grant? Let us look at it. The ant is, “‘the full, absolute and exclusive right, icense and privilege” to manufacture “shirred or corrugated goods.” Now, the term “corrugated” is well known in the Euglish language, and is to be found in all the dictionaries, and it means “wrin- Kled or contracted.” But was the term “shirred” known to the trade or to any trade prior to the 9th ne Ss ag 1844? How stand the testimony on this But, before adverting te it, the Court would re- mark, that while the faterpretation and construc- tion of all written instruments is for the Court, it nevertheless will bring to its aid the testimony of witnesses to explain terms of art, and make itself acquainted with the material with which the con- tracts deal, and with the circumstances under which they were mado; but neither the testimony of witnesses in general, nor of professors, experts er mechanics, can be received to prove to the Court what is the proper or legal construc- tion of any instrument or writing, Such evidence ds inad ible. The Supreme Court, in 15 Howard, in the case of Naat “Ye Burden, held this lan- guage, (page 270):—‘'Tho refusal of the Court to NEW YORK HERALD, FRIDAY, JULY 29, 1859—TRIPLE SHEET. 0) n of exp. tts, a8 to the construction of the patent was prope bee Ne | amined as to the ig on’ terms of principle of “ cuique in sua arle “redendum, not as’ to the construction él i 2 Howard, in the case of baton bar lew York an Railroad Company, (page + wusehot lad nprewmap de ada Te was reject id no relevanc; on the i, were to pasa, but paanied rather to be in- tended to instruct: the Court on some mechanical facta or principles on which the Court needed no instruction, or to teach them what was the true constraction of the patent. “ rts may be ex- amined to ¢: terms of art, and the state of the art at any given time. oar may explain to Ge Court and. lury the machines, models or drawings exhibited. “They may point out the differences or identity of the moohankeal devices involved in their construction. The maxim of “ cuique in sua arte credendum” permits them to be examined to ques- tions of art or science peculiar to their le or profession; but professors or mechanics can- not be received to prove to the Court or jury what is the proper or legal construc- tion of instrument of writing. A judge may obtain information from them, if he desire it, on matters which he does not clearly comprehend, but cannot be compelled to receive their opinions [a anes Sf ev! Bact BEpenoe has mom. opp opinions of persons professing to expert may be obtained to ‘any amount and it often occurs that not only many days, but even weeks, are consumed in cross-examination, to test the skill or knowledge of such witnesees and the correctness of their opinions, wasting the time and wearying the patience of both Court and jury, and perplexing instead of elucidating the questions in- volved in the issue.” Greenleaf on Evidence vei clearly points out the cases in which the Court bring in the aid of the testimony of witnesses to assist in construing written instruments. (2 Green- leaf on Evidence, 282.) “From the examples given in two preceding sections, it is thus ap- parent that the rule excludes only parol evidence of the language of the pareeee contradicting, vary- ing or adding to that written instrument; and this because they have themselves committed to writing all which they deemed necessary to give full expression to their meaning, and because of the mischiefs which would result if verbal testimony were in such cases re- ceived. Itisalso to be keptin mind that thongh the first question in all cases of contract is one of interpretation and intention, yet the question, as we have already remarked, is not what the parties may have OeHy. and in fact intended, but what meaning did they intend to convey by the words they employed in the written instrument. To ascertain the meaning of these words itis obvious that parol evi- dence of extraneous facts and circumstances may in some cases be admitted to a very great extent, without in any wise infringing the spirit of the rule under consideration.” Also, in section 286, he says:—‘‘As it is a leading rule in regard to written instruments, that they are to be interpreted accord- ing to their subject matter, it is obvious that parol or verbal testimony must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers. Evidence which is calculated to sana the subject of an instrament is essentially different in its character from evidence of verbal communications respecting it. What- ever, therefore, indicates the nature of the subject is a just medium of interpretation of the language and meaning of the parties in relation to it, and is also a just foundation for giving the instrument an interpretation, when considered relatively, different from that which it would receive if considered in the abstract.” Also, in section 295, he says:— “But, in resorting to usage for the meaning of Peeouee words in a contract, a distinction 3 to ¢ observed between local and technical words and other words. In regard to words which are purely technical or local—that is, words which are not of universal use, but are familiarly known and em- ployed, either in a particular district, or in a parti- cular science or trade—parol evidence is always receivable, to define and explain their meaning among those who use them.” With these rules in reference to pect testimony, Thave looked through the whole of the testimony in this case—having read it twice very carefully— and it bas left this impression upon my mind: that the term “shirred,” or “shirred good3” was well known to the trade in New York prior to 1844, and that these goods were of various kinds. I think | there are more than forty witnesses whose testimo- ny bore directly on this question—some who had sold, some who had used these goods, and some who had manufactured them, and others who had im- | ported them, and they describe the various kinds. any of these witnesses were dealers in india rub- | ber and some were milliners, and their testimony | was full and clear, that the term “shirred or corru- fee goods” was well known prior to 1844. ‘here is some conflict between this testimony and the testimony of some of the defendants’ witnesses on this point; in we regard t to many of the. wit: esses for lefendants, romath will apply? tat mey ot terested to defeat the com: lafuanta? claim; how far, the Court cannot say; but many of them are manufacturers of these woven elastic oods of vulcanized rubber. Under what right they manufacture them they do not show; but clearly, if the complainants’ claim can be main tained these parties are infringing their rights therefore their eemicnony eicckt be received with great caution, if not entirely rejected. Another remark will apply to a large part of the testimony of the defendants’ wit- nesses, and it is this: that they testify that there is a marked difference between the woven elastic goods and the goods made under the patent of March 9, 1844, ‘Phat is pererent to the eye, and no one denies it. The Court,-being satisfied that this term “shirred” was well known, endeavored, if possible, to trace it out and sce where it came from. The term used in the contract is“shirred or corrugated goods.” Corrugated, as Ihave already remarked, is an English word well known, meaning wringled, and it would therefore, read just as well “shirred or wrinkled goods.” The word “corru- gated” is added to explain what might otherwise be unintelligible to the uninitiated—to explain the word “shirred.” It is used so, no doubt, in the pa- tents and other instruments where it has been in- corporated. I looked through all the French and English dictionaries in vain for the word “shirred.” J could not find it, The nearest word Ihave found | ressembling it—and I have no donbt it comes from that—was aword in the dictionary of the Scotch language, which is “to shirp,” which means to “shrivel” or “shrink up.” ‘Probably when the word crogsed the Tweed and came south, they dropped the p and called it “shir.” We now come to the contract of the 29th of Oc- tober, 1846. What did Goodyear mean by the words “shirred goods?” Did he mean the goods manufactured under his patent of March 9, 1844, or did he mean all “shirred goods,” such as were imported, and then known to the trade? have looked ea the Cae gat evidence in this case to see if 1 could not be relieved from any conflict of testimony of witnesses by the unvary- ing and undeviating records of the written instru- ments. Where interests are so complicated and valuable as these interests of the india rubber manu- facture are, the Court would repose with much reater safety on any light which it might receive ‘om the written instruments in the cause contem- poraneous with all these contracts, or any collate- ral ones, than from the testimony of witnesses taken post lilem motam; and the Court founda jiece of evidence, which was very full on that sub- ect, in the application of Goodyear for an exten- sion of his patent. | read wherever Goodyear intended to limit the manufac- ture of “shirred goods” to his patent of March 9, 1844, he so designated it by words limiting the grant to that kind of “shirred goods.” He has given an account in the schedule attached to his application, to show what he had realized from his patent of June 15, 1844, which he was then seeking to have extended; and he says at folio 220:—“In 1944, the applicant sold to Mr. David 1. Suydam the exclu- sive right to use his improvement in making shirred goods, for which Suydam paid $15,000’ He does not say ‘the right to manufacture shirred goods,” Had it been that language it would have been very strong for the defendants. Now we know what that exclusive right was which was conveyed to Suydam. It was the ght to manufacture goods under the pa- tent of March 9, 1844. “About a year afterwards, the applicant bought this right back from Suydam. ste * Shortly after applicant sold three con- current rights to make ‘shirred goods;’ one to John R. Ford, another to the Newark India Rubber Ma- nufacturing Company, and a third to Onderdonk & Letson. * * * *° When the settlement of 1846 was mede with Day, the concurrent rights were surrendered, that the shirred Scots monopoly might be given to Day.” Entirely different. lan- guage. And then he with the different other rights he has sold, to wit:—“The right to make boots and shoes, the right to make baby jumpers, the right to make door sprin 8, the right ‘to make springs for railroad cars, the right to make clothing, the ri ght to make paper holders or bands, the right to make belting, &c.” Now unless Day owned the full and absolute monopoly as he claims he did, to make shirred goods, no other party had it, for not a dollar was received by Goodyear from any other person, according to this schedule, for manufacturing shirred goods of any description, or any article that will come under that designation, He says Day got a monopoly of the shirred gouds, and at the head of the recapitulation he says, “For ehirred goods, $24,000.” Now if Day had not the whole monopoly to make woven and sewed as well as cemented goods, no one had it, Goodyear then ignored it when he made application for the exten- sion of his patent. Moreover, at folio 65, after speaking of the controversies between himself and ay and the settlement in 1846, he says:—‘That one effect of such agreements was to transfer to said Day the entire right of your applicant to the manu- facture of shirred goods.” (Could language be more expressive than that?) ‘“ That Day paid your which is contained in the } from this to show that | bouns for such and agreed to 2, cents oF each square gana, contract, it will ela hat Dag pa Sader Cocomecenat nee TGooayent ways nt of ayo at folio 74:—“ That et gn such e- ment, said Day afterwards proceeded to infringe anew upon the eee of your applicant, and your applicant was obliged to commence several suits it him, amongst others, two in the Circuit ‘ourt of the United States, for the district of NeW Jersey, one at law and the other in equity. Such suite were pending for along time, were severely contested and ve! ensive.”” Now, if we look at the bill in New Jersey we shall see what patents it was that Day was charged with infringing. In that bill, Goodyear sets forth the contest between them, Day’s ment, and then the contracts of 1846; but the infringement of which Goodyear complains is thus set forth:—~‘Soon after said settlement and said license, said Day com- menced using the improvements specified in said patents, for the preparation of India rubber for manufacturing pur other than those permitted by his license, in violation of said patents, and made large quantities of India rubber.” For what? Ce- mented or sewed, or woven elastic oom No. There is not a syllable on that subject. But he says that he made fe quantities for “car springs, packing, hose, boots and shoes, sheet A ands, suspender ends and other articles pre; by the use of sulphur, and also by the use of sul- phur and a high degree of artificial heat.” Now be testimony in this case shows beyond all question that Day had all this time been making woven clastic as well as cemented goods, and yet Goodyear complains it Day in ‘the Circuit Court of New Jersey for the violation of his patents under the contrac's of 1846, by manufac- turing ard using vulcanizedrubber to make other articles than he was warranted m making under those contracts, and the articles I have just enu- merated are the only ones that he specifies. He makes no Somplaint of his manufacturing woven or sewed clastic goods. Is it not, then, perfectly clear that, so far as the acts of Goodyear were concerned, in none of those acts is there any indication that he meant, when he used the general term “shirred or corrugated ‘oods” in the contracts of 1846, to limit them to the articles made under the patent of March 9, 1844? On the contrary, is there not everything to convince the Court thathe meant to include all kinds of shirred or corrugated goods? In fact, does he not so say—is not that the very language of his application for the extension of his patent— that he had sold that “monopoly” to ag If we look also at the specification in the patent of Dupont & Hyatt, it ia perfectly apparent that the term “shirred” or “shirred goods” was one that was well known, and that therefore the word was no saree of Goodyear when he took out his patent. But is there anything in the patent itself, of March 9, 1844, to make the use of this term “shirred or corrugated,” by Goodyear, only the right to manufacture goods under That patent? As I have just remarked, Goodyear did not invent the word shirred, and surely “corrugated” was a word that he could have found in every dictionary in the Englishlanguage. “Shirred,” the testimony proves, was a term known and applied to an innumerable variety of goods. Does Goodyear pretend, in the patent of March 9, 1844, that he invented it? Not at all. Now let us construe the patent altogether. It is true, he says at the commencement of his spe- cification, that I have invented a new and useful manufacture, which “I denominate corrugated or shirred india rubber goods.” But look at what he really ay Does he patent @ new manufac ture? hat does he call it in his application to the Patent Office for an extension, when he speaks of having sold it to Suydam? A new “improvement.” What does he say below in his claim? Does it read thus? “Having, for the puuwe of putting the Rabie in Pomansion, of my invention, full lescribed the nature of my manufacture, whic! T call shirred or corrugated goods.” If that had been the language used, thore would have been some force in the construction claimed by the defendarts. But the language is this:—“‘Having, &c., fully described the ture of my new manufacture of corrugated good: Then there was a manufacture before; that is ad. mitted. That is apparent on the face of this patent; he continues:—‘And having also set forth the man- ner in which I manufacture the same, what I claim as new therein (implying that there was something like it before), and desire to secure by letters pa- tent, is the forming of such goods by the stretch- ing of strips or threads of india rubber to such extent as may be desired, and the covering of said | strips on opposite sides with the lamine of cloth, leather, or any other suitable material, which lami- pe are to be united to each other and to the threads | eg strips of ge by means of india rubber cement, sam: in, aptad on ante pevduvy UA Mtaw | Tactured article seek as herein set forth.” Now, what is his patent? It isa new process of making a manufacture that was known before. In- stead of making corrugated goods by sewing or weaving, which was a dilatory process, he makes them more easily and quickly by cementing. That s what he patents—a new manufacture of corru- gated goods. It wasa new and useful improve- ment in a known manufacture, and therefore pa- tentable by the law of 1836. Thold it, therefore, clear, from the language of the patent, from the testimony in the cause, and from the language of Goodyear himself in his Pe piioeon to the Commissioner of Patents, that he iid not intend to limit his grant in the contracts of nai’ A the goods made under the patent of March 9, 1844, Let us now see if there is anything in the collate- ral testimony to show that there could have been any other intention on the part of Goodyear, when he used these words. In Goodyear’s assignment, on the 28th of Sep- tember, 1858, to the Union India Rubber Company there is one portion which struck my mind forcibly in connection with this question. He goes on to say—“Now, in consideration of the premises,and of the sum of $30,000 paid to the party of the first part by the parties of the second part, the recais whereof is hereby acknowledged, and of the tari! herein specified, the party of the first part has granted, bargained, sold and conveyed unto the parties of the second part **** the full, absolute and exclusive license, right and privilege to make, use and vend to others to be used, the invention of vulcanized india rubber, **** so far as the same may or can be used in the manufacture of all braid- ed, woven, cemented or sewed fabrics, or such as are or can be covered or protected on one or both sides, with substances other thanrubber, and in all smooth elastic shirred goods.” I cite this for the purpose of asking this question—why, if there were not other shirred goods made those under the patent of March 9, did he put these words in here? cause it is admitted that Day held the right to shirred goods at this time. Does it not show that there were other shirred goods than those made under the patent of March 9, 1844? I cite it for that purpose and that alone. Let us now look at the three licenses referred to in the contract of 1846. The first is the license to Hutchinson & Runyon on the 12th of August, 1845, It conveys to them “a free license to manufactare, use and vend shirred or corrugated goods of every description, in so far as the said Charles Goodyear may have any rights aoe eke Shirred goods | of every description. Now, in the contract of the 29th of October, 1846, between Goodyear & Day, the language is, to make, use and vend “all shirred or corrugated goods,” except so far as Goodyear has parted with the right by three licenses; there- fore, it is important to ascertain what those three licenses contain. Goodyear conveys to Hutchinson & Runyon the right to use his inventions in the manu acture of shirred or Sot goods of every description, in so far as he has a right to sell. Now, he had the right to sell his inventions, under his patents of March 9, 1844. But there are some things that he had not aright todo. He had no monopoly in woven goods made of common gum, but he could sell the right to make cemented goods of common rubber and of vulcanized rubber, and he could sell the right to make woven goods of vulcanized rubber; cud, therefore, he puts that qualification in. He says, also, in his license to Hutchinson & Runyon, that they shall pay him at the rate of ten cents per square yard for all said shirred goods which they or their assigns shall make, by or, under, nol the patent of 1844, but “by or under any inventions, im- provements, or letters patent before men- tioned.” Now can any one doubt about that construction? I have not a shadow of doubt that he intended to give to Hutchinson & Runyon, by this license, the right to manufacture all kinds of shirred goods, whether they were cemented, sewed or woven, and to use in their manufacture his val- canized rubber. That is the language. Tt could not be plainer. They are to pay Goodyear ten cents per square yard on all shirred goods which they or their assigns shall make or cause to be made ‘‘by or under any of the inventions, improve- ments or letters patent before mentioned.” That is to say, if Hutchinson & Runyon make woven shirred goods of vulcanized rubber they are bound to pay ten cents asquare yard, because they are making them under the patent of June 15, 1844; for they contract to pay for all such goods that they may make under any of the patents, of which this is one. I do not think the English language could be plainer. On the 9th of December, 1846, Hutch- inson & Runyon reconvey to Goodyear this license, in general terms, for the manufacture “of shirred or corrugated india rubber goods.” The license to Onderdonck & Letson was granted in Septembor, 1845. It is also a license to _manu- facture, use and vend shirred or corrugated goods of every description, in so far as Goodyear may have any rights and'privileges relating thereto. It seems to be a copy of the other, and is substan- tially the same. This was reconveyed to Goodyear on the Ist of December, 1846. ‘applicant $5,000 pays r ared The third license, to Ford & Co., is also in the ed eres hay all conm to bo copies er. re-conve; Goodyear on in 3d of December, 1846. “ eae re was a reference made by the co for the defendants (Mr. Marshall) in his argument, to release of one of those licenses by the Newark Rubber Co—the Hutchinson & Runyon license— which professes to release only the right to make the goods under the patent of March © The re- lease bears no date, but was recorded on the 9th of December, 1846; and the convenant on the part of Company is this:—“And the said Company co- venante and agrees to and with the said Charles Goodyear, that ead not manufacture shirred or corrugated Indfa Rubber goods, in violation of the patent for said manufacture, issued to Charles Goodyear on the 9th day of March, 1844.” The gents art is:—“Know all men by these resents, the Newark india rubber Mam Com- pe sin consideration of one dollar to them paid 4 arles Goodyear, has assigned to the said arles Goodyear and ‘his assigns, all their interest in the witbin ‘instrument, and every clause, article or thing therein contained.” The assignment is, therefore, general; it is merely the covenant, that they will not manufacture shirred or corrugated goods, that refers to bd ype! of March 9, But it is something remarkable that the same day they made @ general release and 9b oneal covenant, as fol- lows:—“For and in consideration of one dollar, to us in hand paid by Charles Goodyear, and in cen- sideration of other good causes us thereunto moving, we hereby assign, transfer and set over to said Charles Goodyear, his executors, administra- tors, and assigns, the within license, right and privi- lege, and the assignment thereof to us, and all rights granted or intended to be granted thereby or incidental thereto, in as full and ample a manner as we now hold and possess the same. And we also stipulate, covenant and agree that we will not, after the Ist day of January, one thousand eight hundred and forty-seven, directly or indirectly manufacture, or be concerned in the manufacture, of shirred or corrugated india rubber goods.” So tappente las, finding their error, they corrected it. One release is endorsed on the assignment, and the other on the original license. T think, so far as Thave been able to draw an: inference from these licenses, that they all strengthen the conclusion to which I have arrived— that in the contract of October 29, 1846, the term “shirred or corrugated goods” meant all kinds of shirred or corragated goods, whether cemented, woven or sewed, and is not limited to the goods made under the patent of March 9, 1844. _ And this is further apparent when we look at the license to Suydam. e argument for the defend- ants is, that Goodyear, when he used these words in the instrument of October 29, intended only the ae made under the patent of March 9. On the 4th of May, 1844, Goodyear sold to Suydam the right to manufacture shirred goods under the pa- tent of March 9. The language expressly limits his ear to those goods alone. It is not, “I sell the right to make shirred or corrugated goods,” but it recites: “All my right, title and interest in and to two certain patents granted to me by the United States of America, both dated the 9th day of March, 1844, for an improvement in india rubber fabrics.” Now I hold it to be very clear that if a man owns two rights to manufacture goods by pa- tents of different dates, and he sells to A his right under one specifically, and to B the right to manu- facture the goods generally, a3 a matter of* course the fair construction of the latter grant will be held to be a conveyance of the right to manufacture under both patents; because in the first grant, when he intends to limit it to one, he so recites on fas face of the grant, and in the second he does not It would be useless for me to go over all the ground so very ably occupied by the learned coun- selon both sides; indeed, Iam notable to foie tice to it; but I hold the title of Day to be clear under the contract of the 29th of October, 1846, to use vulcanized rubber in the manufacture of all shirred goods, whether they be cemented, sewed or woven. But I will say a word or two on the deed of the 24th of May, 1858. It certainly embraces all the articles concerning which this controversy has arisen by express terms. If not granted to-day by the contracts of 1846, they passed by the terms of the deed of 1858. I do not speak now about the yalidity of it—whether it operates in presenti or in fuiuro—but on its face it uses terms which will embrace these articles. It grants to Day the right to use Goodyear’s invention of vulcanized rubber for the present and all extended or renewed terms of said patent, as the same may or can be used in the manufacture of all “braided, woven, cemented or sewed fabrics, or such as are or can be covered or protected on one or both sides with substances other than rubber, and in all smooth, elastic, shirred goods.” Now, if Goodyear had the right, to gn he wads tay eau UE WOU UI — s grant ter it. Is it nota perfect deed in itself? This deed was attacked on the ground that it was not valid. Butit isa deed under seal; it was givea for a consideration, and it speaks in presenti. A deed conveys ao title, although it may have covenants in it which have not been performed. There are things which rest in grant and things which rest in covenant. In almost every lease or deed, if not quite every one, there is something that rests in grant and something that rests in covenant. The words in this grantare, “I hereby sell, license and convey.” There it is in presenti; it operatesas agrant, en it says, “ I agree to confirm.” That is a covenant for further assurance. Then it says, “ Thereby authorize and empower the said Day to use my name to prosecute and defend the Spon and privileges pore granted.” Then it provides: “ And the terms and conditions upon which this license shall be held and enjoyed, as to bonuses, not exceeding in the whole the sum of thirty thou- sand dollars, and the tariffs, not exceeding five cents a pound on the product, shall be fixed and determined by Nathaniel Hayward and Thomas A. Jenckes, whose award in the premises shall be tinal, and shall be made within three months from the 15th day of June next.” Now J am not called upon to give a construction to this covenant in this deed asto what might be its effect. But Goodyear made it, and with it he made a grant in presenti. If the covenant fails by his laches, the grant nevertheless stands. The co- venant does not affect the grant; the grant passes the title and operates in presenti. The covenant may have become impossible by the expiration of the time, but yet the grant stands. Is not that a well known principle in the common law? If by the expiration of time such a covenant becomes impos- sible, the grant stands. But had Goodyear this right on the 24th of May, 1858? That depends upon the construction which you give to the license of Goodyear to the Nauga- tuck Company on the 18th of July, 1844? Did that license carry the right cf the Naugatuck Compan: ae the extended term of the patent of June 15, 8442 * Now, if the Supreme Court have decided that question there would be an end of it. But I do not consider that question as decided in 20 Howard. Courts are called upon only to decide questions that are before them. A judge sometimes in giving an opinion uses language which, although it always is entitled to consideration and respect, yet in refer- ence to questions that were not before the Court, and the decision of which was not necessary to its de- cision of the questions before it, is not of binding authority. The case in 19 Howard was this:—Day complained of the violation of the Chaffee patent by the Union Company. Of course he could not re- cover unless he could satisfy the Court that he was the owner of the patent. ‘The Court decided that he was not the owner. There is a point in that decision which 1 will read in reference to the question of the validity of the deed of 1858 In the case of Day ys. Hartshorn, tlle Cont had decided that the Chaffee patent was in Judson for the benefft of Goodyear. They speak of two contracts that Judson made, but tke decision rests upon the last contract of the 12th of November. In that case of Day vs. Hart- shorn, it will be found that Chaffee attempted to set aside his contracts with Judson, because the contracts had not been performed. I read from 19 Howard, 222, in reference to my last statement in regard to the operation of the deed of 1858:— “From the terms.and intent of the agreement the remedy for the breach could rest only upon the personal obligation of Judson, as by the previous one of the 6th of September, the interest in the patent had passed to Goodyear and his licensees, and no default or act of Judson could affect them. Chaffee chose to be satisfied with the covenant of Judson, without stipulation or condition as it re spected the other parties,and he must be conten with it.”_ So the Court decided in that case that the Chaffee patent was in Judson, for the bencfit of Goody Day again complains of the Union Company for a violation of the same patent, claiming title in himself by the same instrument. The Court say in this case of Day vs. the Union Company (20 Howard, 216)—"The Court held in the case o Hartshorn et. 9}. vs. Day, that under the agree- ment of the 5th of September, 1850, between Judson and Chaffee, the patentee, the entire owner- ship in the patent, legal and equitable passed to Sade n for the benefit of Goodyear, and those holding rights under him, and on that gtound de- cided in favor of the licensees. Now, in this case, the licenses under Goodyear to manufacture cloth of the description claimed are as broad and ample as were those of the defendants in the case just mentioned. G ear became the sole owner of the Chaffee patent as early as the 28th of June, 1844, and on the 18th July following, gave a licerse to the Naugatuck Company to manufacture cloths, with certain exceptions, under all his patents— those in which he was then interested, or in which he might thereafter be interested, issued or to be issued, and also in all renewals of ped He also gave a like extensive license on the 28th of March, iss7,to W. BE. & John Ridor, for manufacturing ships’ letter and mail bags.” ia Now, I have @ most protound respect f hae pr ole ogaaeatier ease at Points, these licenses have to be oritically exam a; king at the licenses in terms from the Naugatuck license. But what does the Judge say when he comes to the point on which the case was decided? “All these various licenses afterwards became consolidated in the Union India Rubber Company, the defendants in this suit, and present, re, & defence to the suit, if Goodyear was the of the Chaffee renewed patent.” (And they as they saya little below, that he was. license of the defendants, therefore, in ‘his case stands upon two grounds, either of which would seem to constitute a sufficient defence to suit for infringement: First, authority from Goodyear, the owner of the renewed term of the atent; and, se- cond, the express recognition of Shame, the pa- tentee, of the right of these parties, as licensees of ‘oodyear, to use the improvement. And we may add to these grounds of defence, that upon the in- terpretation of the Court, in the case of Hartshorn vs Day, of the several agreements relating to this atent, and especially that of the 5th September, 850, Day took no interest in it under the aasign- Ime pa wi interest for benefit of Goodyear and his licensees.” a4 Those are the grounds on which the Court put it. ‘There was no questien before them abont the re- newed or extended term of the patent of June 15, 1844, and I presume it was never argued. It was another patent, entirely--the Chaffee patent—and the di nis put upon the ground that the com- | bow geo Day, had no right whatever, if the pa- nt was violated,to recover; and that was suffi- cient to decide that case. But the Court went on and decided that the defendants had a right to the extended term of the Chaffee atent, under the license from the Nauga- ick Company. Now, what is that license? “That the said Charles Goodyear, in consideration of the payments and stipulations herein provided, hath given and ited * * * unto the sald Nauga- tuck India Rubber Company a full and absolute license to use any and all his preparations of india rubber, and improvements in the preparation of india rnbber for manufacturing cloths or any other article of merchandise, or any article to which the same may be scpllesbie. for and during the unex- ired term of all patents issued to him, bearing an: late whatsoever.’ There is a full sentence. He gives it to them during the term of all patents issued to him, bearing any date whatsoever. “And for and during the unexpired term or terms of any other patent, patents or renewal of patents, owned by him (that is, that he then owned), or in which he may have an interest, issued or to be issued.” That was to cover cases where he might have had an interest in a patent which had not been issued, and the courts have decided that you can sell an interest in a patent that is to be issued. Now read it the other way, as the counsel for the defendants would have itread. “For and during the unexpired term of all patents issued to him, bearing any date whatsoever, and renewals of patents owned by him, or in which he may have an interest, issued or to be issued.” You would have him using the word issued twice, because he has granted above the right to the use of his patents issued to him bearing any date waatsoever, which is a full grant; and then he grants to them in a different sentence, the use “for and during the unexpired term or terms of any other patent or peers or renewals of patents, owned by him.” Joes not the word “renewals” in this sentence, re- fer to patents that were owned by him but not isened to him—because there was the Chaffee pa- tent, which was owned by but not issued to him— or to those in which he might have an interest for the invention to be patented? Now let us look at the license to Trotter. See the difference in the language. It is a license to use’ any of the “machinery, compositions, and methods of manufacturing and preparing India rubber * * * which the said party of the first part now has or may hereafter have, by virtue of apy patent or patents, or otherwise, for and during the unexpired term or terms of any such patent or patents, or renewal, or renewals thereof, which are or may be owned by him, or in which he may have an interest, or of which he may become pos- sessed.” That is different language entirely. The next is the license to Riders & Trotter. This ided, “The contains an express provision that it shall ‘“con- tinue during the unexpired term or terms of said oe or any of them, or the renewals thereof.” that, therefore, is very clear. He intended to con- vey whatever he did convey to them during the renewal of all patents; for he says so in express language. Itis to continne during the unexpired term or terms of said patents, any of them, or the renewals thereof. commie aay about to expire, and this India Rubber Company, ter,* * * with William Rider & Brothers, ** * and an Seger made with William Rider & Brothers and Jonathan Trotter; *** and whereas the pa- tent of the party ofthe first part, dated June 15, 1844, * * * isabout to expire, and application has been made for an exteneion thereof. Now, in order to fix, define, and render certain the rights and obligations of the 28 pod they pro- ceed to arrange the tariff respecting cloth when made into clothing. Now, was that made under the Naugatuck license? Notat all; butunder the Trotter license. They are to paytwo centaper poet FY of cloth in the piece, or when made up, one and a half cents a pound on india rubber sold in sheets or otherwise, and two and a half cents a pound for other articles not herein specified. All those goods are made under the license to Riders and Trotter, and not under the Naugatuck license; so that there is no argument to be drawn, as I con- ceive, from that poise of Goodyear, to show that the Naugatuck license covered the extended term of that patent, Iam, therefore, disposed to think, from this re- view of these instruments, and of the deed of May 24, 1858, that that deed would have conveyed an in- terest to Day in the articles, the infringement of which bas been complained of. But it is not neces- sary to do so in this case. I place the title of Day on the contract of 1846; and from the best attention Ihave been able to give ét, I have heard nothing in the argument, and I have seen nothing in the docu- mentary or parol evidence to convince me that the terms “shirred or corrugated,” in the contract of Oct. 29, 1846, should be limited and restricted to the goods made under the patent of March 9, 1844. I, therefore, will sign a decree against the defend- ants, restraining them, as prayed for in the bill. The cause was argued on the part of the com- lainants by Hon. J. H. Latrobe, of Maryland, T. A. Jenckes, of Rhode Island, and ©. A. Seward, of New York, with whom Hon. B. R. Curtis, of Massa- chusetts, and others were associated. Military Affairs. FIRST COMPANY, NATIONAL GUARD. ‘It was inadvertently stated a few days ago that a batta- Yon of four companies of the National Guard would go to the Massachusetts military encampment in September next. Tho First company, National Guard, Capt. W. P. Benge], however, have completed their arrangements for 8 trip to the White Mountains, stopping for a brief period at Concord, Mass., to witness the encampment. The company will leave New York on the 6th of Sap- tember in the clegant steam pslace Common wealth, of the Norwich and Worccstor line, snd the only direct route te the White Mountains. They will arrive at Worcester, Masa.,on the morning or the ‘7th, where they wiil breakfast, and then start directly to thefr destination, and remain there untii Thursday morn- ing, when they will retain by the way of Concord, Maas., to Visit the encampment, where they will remain until it breaks up on Friday. Previous to this they will take + inthe grand review of the Massachusetts troops. They will return to Boston on Friday afternoon, where they will romain until Saturday, and return by the Nor- wich and Worcester liue, and reach this city in the steamer Commonwealth. company exieads an invitation for members of other companies of tue Guard to join them, which will probably swell taeir ranks suillsient to make two or three companies. THIRD BRIGADE NEW YORK STATE MILITIA. BRIGADE ORDERS. o New Yorx, July 18, 1950. The resigvation of Colonel Abram Duryee, of the Seventh regiment, is ncoepted, and he is hers>y honor. ably discharged, with the thanks of the General for the prompt and efficient manner he has parformed his datics. The General regrets the loes to the service of £0 valuable an officer; who, after ee ee ra leaves it with the confidence and respect his associates. Lieutenant Colonel Lefferts wili take command of the Seventh regiment, and report to the Genoral as soon as practicable when an election will be held to fill the vacancy occasioned by the resignation of Colonet Daryee. By order. wat ALG, Brigadier Genera! . SMITH, Brigade Paymaster. The Annexation Movement In Canada. DISSOLUTION OF THE UNION CRY—CANADIANS WANT FREEDOM AS MUCH AS ITALTANS: OUR MAMILTON CORRESPONDENCE, | Haxrrrow, 0. W., July 21, 1859. Permit mo to inform you that we Canadians are growing every day more desperate for annexation to the United States of America. Wo find that so lorg as we romain AS WO aro, #0 Jong shall we remain poor and spiritiess, and be hum bugged by the present baad of railway obiseilers, com- moniy called Canadian government, We bave been hu. miliated and made mileeradly poor by these public blool- suckers, t of Goodyear with the Union ‘april 23, 1804, he speaks of the patent ited by the counsel for the defendants to show that the Naugatuck license was intended to extend into the extended term of the-patent of June 15, 1844, by this agreement. Now, let us look at this a moment. Itsays: “That whereas the parties of the second part have cer- tain rights and interests in the patents of the party of the first part, *** under an agreement made by the party of the first part with the Naugatuck y, ** * with Jonathan Trot- We cannot aud will cot allow ourselyas tonger to be trodden ‘upon by the iron heels of our misgovarning, robbers. All wo desire is the assistance o” Brother ANOTHER MAGNIFICFNT OPERATION. A Fourteen Million Lean of the Grand Duchy of Baden—The Name of the de Rethechtids trian draft operation, the Turkish piastre forgeries, similar ragcalities for which the knaves of this metropolis ‘have rendered themselves notorious. This timo the opera- tors bad made extensive preparations for a grand strike, and had even boldly appropriated the name of the great- est bankers of the world—the Rothschilds of Europep—te | gtve color to their pretensions. They confined their operations entirely to the country, generally to dis- tant parts of the South and West, and it was by means of letters from those parts that we received our first infor- mation of the matter, Tho following are specimens of letters sent to us on the subject:— TO THE EDITOR OF THE HERALD. Braunton, Va., July, 26, 1860. ‘The enclosed circular and certificates were received last mail. Is we project bogus or otherwise? Please re- ply in your paper, as thousands of doilars are matied Sly fo Crane ee 75 Nassau streot, Now York. Iti Important to the peopletoknow. J. 3. 10 THE EDIFOR OF THE MEAALD. 9 ‘Ohio, 860 Encloeod please find a circular, together wit Avo, ooe- tifteates of shares in the “Fourteen Million Loan of the Grand Duchy of Baden,” which I recetved from New York this morning. Do you know anything of the coa- cern? Te ‘We give here a copy of the circular enclosed to our cor- respondents, aud of one of the certificates: wer ae been as M1 ‘Which taken at the flood leads on to abut Perumencanee Reoaeeests SEs er amet Seta oe inciples. ne Flom of evares thus tasued, Dut aleo by the existence. n x Could offer a more weloome opportunity than the re- cent issue of 400 000 shares. jemcuntng i ie Gree, &TEEN soe ul i a "he aad Tiskest States of the Germanic Vonied-ration. Se se poems ee ee Teach of the numbers thus drawn must obtain one of the followirg prizes :— " 14 prizes. yore a “ Ppicizs. eeu RecariroraTiox, 400,000 ehares, 400,000 prizes—4 060 000 florins. Astbere are pot more than bares issuec, there are saa mailer of courre no blanks, andeach tharel mana eveccual'y be fully rewarded for the litte investment whlgie ~" — aanereoieats been Oxed upon as follows: shares.-....--each lito pi ie 3. ie as ‘Yon will bere! ive that persons, whose time is not tee much occupied, will find it quite remunerative to induce their frlends to become particizatore in this enterprise. Ail persons not wishing to take one or more shares are re- to return the same without delay. a fore the drawing takes place, for- ‘an! Tmmedistely ater th the govern: aca) une. As the next drawing will take and we presume tha! you would opport have enclosed aball be wanting on our pr nothing fidence, We remain, very ri 's eee PORRUTILDS & 00. P.8. All commupizations to be directed to OCOASTANTINE, FELLNER & CO., ‘Box 3,864, 75 Nassau street, New York. g Number 14,979. CEBTIFICATE OF £1 TOURTEEN MILLION LOAN OF THE GRAN FIORE Ro 140, 719, of the Fourteen Milion Florins Loan, the Sapam Carisrube on the 3ist of A: Prizes payable in gold thirty daya after dra citer ty tue Gras Ducal Bioklag Pond Dope . 0, ROTHCHILDS & 00. [reaxxronr.ox-tim-Main, May Int, 1880, The cerjificates are quite handsomely engraved, and printed in blue ink. It will be obzerved that the name attached is “1. 0. Rothchilds,” whereas, the signature of the great banking firm which was to seem to give coun- tenance to the scheme, is‘ M. A. de Rothachilds & Sons,’? Our reporters have investigated the affair as fully as po sible, and we give what they have been able to ascertain er _ ans eet bout a fortnight it~ appears at a fortnight ago, a man represen! ing himrelf to be one of the firm of Constantize, Feliner & ., Of 75 Nassau street. applied at the New York Post Office for a box, and was informed that, in accordance with the usual rule, bis tirm must first be recommended ag responsible by some well known business irm. The man scon after returned in company with a gentioman doing business down towo, with whom the Post Office CaPrrat 14,000 000 firm. A few days afterthe firm took of box, letters began to arrive in great numbers, addressed to them, sometimes as many ss tin. per day, principally from the South and West. These wers promptly delivered upon call, for a time, but the great in- crease of their correspondence, and the fact that many of the letters evident!y contained remittances, to ex- cite the suspicions of the officials, and then iy the firm ceased to call for their letéers, which acoua ta @‘arge amount, and many of which still remain in the office. A meeseoger was then despatched to No. 75 ‘Nas- ‘sau street, but he returned with the information i. Ro such firm was located there, and no one knew any! ing about them. Meanwhile the Mayor had been favored the circular and certificate, aud at once pl ter in thebende of the police. ae s were € bank Belmont, the ogeal for the Rothschilds in this the whole aifair was without the slightest hesil nounced to be bogus. The Consul of Baden clared the certificaies to be worthless. Street was ransacked from top to bottom, slightest clue could be found of the firm of Constantine, Feltner & Oo. , of any of its Ollicers were vent to watch the Post tors bad evidently taken the alarm. their danger by seciet confederates, for their letters. So the matter remains for the presont, having escaped, probably with moans sufficient B hemeeare soon aa this affair ~ mn over. pollee, natareily thelr own. oredit by tho ullimate capture of the : : 5 wfatte feuile eet Hi sf ff alt the whole affair as early as posell enclosed money to the firm within a few days hope to receive it egain in time by way of the dead letter office, and any who may chance to destrable 'a- formation on ths eubject should address Mayor Nemans or the Deputy Superintendent of Police, ‘There is no doubt that a great “ and West have cmbarked in this entorpriao, tut _ extent can probably nover be known. Y¢« ia ail proba. bility the rext plausible scheme of toe kiod will moet with cqaal favor, and find plenty of simpletovs osger a behumbugeed. |