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

CONSIDERED q mace and used under this agreement,
and suDJece 10 said tariff or assessment" 1t Is not
necessary to resort TO the rules of law which re-
quire that general words shall be interpreted most
strongly as against the grantor to ascertain what
the grantor meant The parties have not rested on
those general words; they have expounded and ex-
planned them; they have said, in as clear terms az
the English language admits of, that the con-
structon contended for the other side is not the
one the parties meant. 'All shirred or corrugated
goods Of any kind-not my said shirred or CORFU
gated goods made under my patent" but all of any
kind, it Is understood shall be considered as made
and used under this agreement do not perceive
how this can be strengthened, but something
may be added to II which is in entire conformity
with it, and that occurs in the same clause There
follows this covenant an exception out of it, It is
very familiar to your Honors mind that it would be
absurd, as wei az useless to except out Of cove
nant something which was not previously included
in it by force Of its tesms. When, therefore, we
lind al exception, and look to see what this ex
ception 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 Chat is the agreement
70 pay tariffs, however all shirred corrugated
goods made With strands or threads Of native or
common gum, where such goods Chat is shirred
or corrugated goods may be manufactured by
said Day, for the purpose of competing with such
goods Chat is, competing with shirred or cora
gated goods, and when so made by him for such
assessment thereon"
To understand correctly the inducement, meaning
and fair scope of this exception, think it is
sary to look at one or two other things in the in
strument. Your Honor will fnd by turning back
to Mr.. Goodyears fourth covenant, THAT he the
said Goodyear, will, at his own expense and cost
prosecute all and every person persons or bodies
corporate. who shall infringe to the injury Of said
Day, in the use OF the privileges hereby granted
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 ntringes upon all or any
Of the patents, that is, the vulcanizng patent or
either Of the others, he will prosecute.
Well then, it is manifest that contingency
existed, and in point of fact was contemplated by
the parties, of this kind. Here makers of
suspenders, who are mentioned below in the deed,
who use strands of native or common gum. Says
Mr.. Day to Mr.. Goodyear, "You cannot protect me
against those; must protect myself against them;
must do Thy competition; and as you do not protect
me- and shall not use either of your patents (or
shall use native common gum, shall not use the
vucanizing patent, and as | shall make the woven
goods, shall not use the shrred goods PATENT, in
asmuch, therefore, as you cannot protect me
against them, and as must protect myself by com
petition, and am not to 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 dealing with is woven goods, or some spe-
cies of goods not made under.Mr. Goodyear's cor
fubdteQ putenu because, IL Tile gOOuS WIFI 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
different covenants together and the parties I'M
doubtedIy took them together-that when he goes
on to say that if he makes Of threads Of native
common gum, slrred 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 I'M
Outstanding Of these parties, and would come under
this covenant to pay tariff, unless they had been
cepted out of it The words themselves declare
them to be corrugated goods for he calls them 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 thirdly on page 6:"it is hereby mutu
ally covenanted and agreed hatin the event of any
other person than the said Horace II. Day, those
claiming through or by him as aforesaid, or by vir
tue of his assent acquescence, manufacturing or
importing or selling shrred or corrugated goods ex
cept such shrred goods as aforesaid referring to
the covenant which have just read made with
strands or threads of native or common gum, such
maksrsS SspfRy bSe& lRE ESvsn sHsRsnas der
profits which would accrue to said Day when in
the exclusive enjoyment of the privileges above
granted, then the tariffs are to be suspended. And
here 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? / wish
to have the tariffs suspended while you thus in
default" II agree to that says Mr.. Goodyear,
"but there are species of shirred or corrugated
goods against which cannot protect you, because
in making them neither of my patents nfringed,
and therefore cannot consent to have the tariffs
suspended simply because somebody is making
SHRED 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 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 pay tariffs? Why insert any such
exception? 1t was all outside of the contemplation
of the parties, the learned counsel say, and is not
to be found in the grant. submit that this excep-
ton is entirely inconsistent with the construction
which the defendants would put upon this grant.
have made such observations occur to me
upon this particular deed. wish now to turn to
the auxiliary articles as they are termed in the
paper ITSELF and to the fourth clause in the second
of these auxiliary articles to be found on page TO-
4. "a release from the Naugatuck Company Of
the right or license to make any articles which by
the before 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 Company of the
right or license TO make any articles which Mr. Day
is licensed to make by the agreement is to be OBJ
tanned. NowSsir, 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.. Goodyears patent, that alone
would be decisive; because here Is de-
claration in writing, in an auxiliary ar
tice, that what Is agreed to be obtained from the
Naugatuck Company is articles which Mr.. Day is
authorized to maken by the agreement.
Before turning to the release ITSELF it is necessary
to refer to that which has been so much 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 Naugatuck
Company's license, and to which l must ask your
Honor's attention. It bears date the Gath day of
May, 1874, and is an assignment by Mr.. Goodyear
to Suydam of the two patents for shirred goods
the patent fer the manufacture and the patent for
the machinery 1t is the only instance which has
met my observation in the course of these convey
ances in which Mr.. Goodyear has parted with his
letters patent. All his other grants have been
grants Of rights under him as the holder Of the legal
title. Here, however, he parted with his entire
title. lie conveyed to Suydam, his heirs and
assigns, "All the right, title, interest and ex-
elusive privileges granted to me the said
roodvoor nv the I1nifad Stafaa of Ama-