The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-02-19

Office, in order that third persons may know what
their contents are. and regulate their rights and
conduct accordingly Mr.; Day, as third person,
law, and no doubt actually also, of the
existence of this deed TO Cutler 4 Jencks
He sees and knows its contents, and is
bound by them. but certainly he is not bound to
take notice Of the acts of the parties under it, They
are not on the record they are not brought to
his knowledge; why should he or any third
person be affected by them? Between the parties,
under certain circumstances, it may be safe for the
Court to resort to that species OF evidence to OBJ
tain light from that quarter when it cannot be OBJ
tanned from the deed; but as to third persons am
unable to perceive its propriety.
An argument was addressed to the Court yester-
day to show that If the license vested in Cutler u
Jencks tor the original term OF the patent, there
had assented to this license by Goodyear, and
thereby waived their pre'emptve right, there re-
manned in them right to pre-empt the extension
corresponding with this license. In other
veyed to Cutler a. Jencks the right under
the unexpired original term of his patent, and
the corresponding right under the extension, among
other interests, was vested in the Naugatuck Com
pany, and, inasmuch they have agreed that there
should pass to Cutler Jencks only the right
during the original term the residue remained in
them and they had right to pre-empt it. That,
may it please your Honor, raises question OF
some interest in this case and of some general ap-
plication. IT has been insisted on the other side
that they have not merely the right to Pre-empt
under the original term Of the patent, but also
under the extension of each Of these patents. do
not read their license refer to page 05 of the
affidavit where the language occurs. II is grant
of "a full and absolute license to use any and all
his preparations Of India rubber and improve
ments," in its preparation, "for manufacturing
cloths any other article of merchandise, or any
article to which the same may be applicable for
and during the uneXpired term of all patents issued
to him, bearing any date whatsoever, and for and
during the unexpred term or terms Of any other
patents or renewal of patents owned by him."
understand, may 1t please your Honor, that
hare are two distinct subjects of grant, one is the
patents which were issued to Goodyear, and the
other is "other patents" which are owned by him.
One was the sulphur patent, which was not issued
to him, but which he had bought. He may have
had others.
him the language is express; they are to hold the
license during the uneXpired term of all patents is
sued to him bearing any date whatsoever and for
and during the uneXpired term or terms of any
other patent or patents or renewal of patents
owned by him. / understand that word renewal"
to mean reissue. That is the way it was under
stood by the Supreme Courtin the planning machine
case and although they were aided in that case by
some circumstances growing out OF the state OF the
law at the time, yet believe your Honor will find
that they considered that to be the appropriate
meaning Of that word. That it is the appropriate
meaning here, think is shown by the fact that the
grant is for and during the unexpired term of all
patents renewals Of patents. You cannot substi-
tute the word extensions for renewals" without
| rendering ue WOTuS -uucApucu tcTHl mcduiuB-
less "The unexpired term Of any patent or patents
! which may hereafter be extended" would be
| strange expression.
Turning, however, from this to the next page,
| we come to the covenant OF Charles Goodyear.
Your Honor will observe that it is not exclusive
| right that is granted to the Naugatuck Company;
| it Is made exclusive in them far as it ever was
made so, simply by force of the covenant to which
| will now advert.
'And the said Charles Goodyear does hereby for
himself, his heirs, executors, administrators and
assigns, covenant and agree to and with the said
use OF vend, or to grant to any other person
company whatever, any other license to make use
or vend said preparations or improvements in the
preparation of India rubber to apply the same to
any of the purposes to which the same can be
fully applied during the continuance of the license
hereinbefore specified and granted to the Manga
tuck Company"
That of course implies that that license may ex-
pire, and then Goodyear may 60 on to make grants.
| And how can this be except under an extension of
some patent? And how under the extended pa
tents, if the license of the Naugatuck Company en-
braces the extended as well as the unexpired
terms? You perceive that he does not agree that
he will not at all make grants under the lcense--I
that as long as the license continues, he is not to
make grants; the license lie has previously said is
to continue, as to all patents issued to him during
| the uneXpired term or terms Of these patents.
Then it goes on still further to provide that al
though he may sell he is first to give the Nauga-
tuck Company the right themselves to buy on the
same terms that other people are willing to give;
and the period for which they thus have the right
to buy is described in this way: "That if at any
time after the goth of july 1874 the said Goodyear
his heirs executors, administrators assigns shall
deem it for his their interest to sell for stipu-
lated price or sum in gross the exclusive right for
the unexpired period or periods for which the same
may be vested in him or them of making, using or
vending said preparations" then he is to offer It to
| that company during the license.
| If this be So then it is manifest that neither the
| Naugatuck Company nor Union India Rubber Com
| pany, who are said to have succeeded to their
rights, ever could have had any right whatever in
respect to this Cutler & Jencks license, after the
expiration of the letters patent; because their en-
tire presumption right was limited to the expiration
OF the then existing patent: And the same argu-
ment will apply, shall hereafter apply it, to the
] title which they claim was made recently to them
/ by. Goodyear. under their asserted presumption
right.
There is one other element which ought to be
taken into consideration in this point of view, but
it connects itself much better with that part of
the argument which relates to the right to Mr.. Day
in conflict with the presumption, that will pass it
! over until arrive at that.
One argument which was used by the counsel who
first addressed the Court in behalf of the defend
'ants, to show that Mr.. Day did not himself un
derstand that he had acquired the right to make
| woven elastic goods, as they term them, by his
| previous deeds, was, that he had agreed to paw
the sum of $50 000 and agreed to pay tariff under
his contract with Goodyear of May last that I'M
! derstand to be the argument-the improbability
uuut lay Wouiu nave dBIetu W pay SJUUUU, ana
the increased tariffs if he already had the title
| Well, mayi it please your Honor, if the learned
counsel on the other side are prepared to say that
Mr.. Days title to all the kinds of goods mentonedin
that grant of May last, was so plain and unques-
tionable, that as man Of sense and Judgment he
might not be willing to pay for putting 1t beyond
the reach of litigation, and to satisfy Goodyear Of
his just, and liberal intentions towards him,
why then there would be an argument derived
from the improbability of it. But it, on the other
hand it is perfectly apparent to the Court that as
respects many species of goods which are embraced
in the license, whatever may be the ultimate deci
sion upon the strict rights Of the parties as they pre-
viousy existed, there doubt aud is certain to be lit
gation-whenever that conclusion is arrived at be-
leve it must be held it has always been held that
aman may buy his peace without intending to make
any admission that he had not good right pre-
viousy II Is indeed one of the ordinary incidents
to conveyance to take covenant for further as
surance; not because the parties did not consider
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