The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-02-19
nent. Il seems. is not entitled to much practical

ment. it seems is not entitled to much practical
weight. ,. .h..o .aa;.,o,o,
articles there n provision in regard to stopping
manufacturers after a certain day IN January. IT
is this : , A..
when present manufacturers shall stop making and
selling SHRED goods and the like, shall be sub
mifted to the arbitration of three dsinterested per-
sons provided the parties hereto cannot agree
The argument in reference to the provision is,
that the words shirred goods therein contained
must have been limited to shirred goods made ac-
cording to Goodyears patents because he could not
stop Others But he could stop others. He could
stop any manufacturer of suspenders or anything
else, who should use the vulcanized rubber, anu
the of the vulcanzed rubber IS one OF the PRIV
1eges which is conferred upon Mr.. Day, and Tor
which, and during the whole term OF the existence
of which patent, even after the expiration of the
shirred goods patent, Mr.. Day is to pay tariffs.
] now ask your Honor's attention for few
minutes to the extraneous evidence wmch the gen
tlemen ON the other side have offered here, TO see
how far it is competent and what are the just con-
illusions in regard to it. The principal position
taken by the learned counsel, founded upon TINS
evidence is that at the time when The grant OF 5ne
29th October was made, the articles made under
the patent for shirred goods were alone known IN
the trade by the name OF shrred or corrugate9
goods. The gentlemen have laid great stress ana
One of the learned counsel Mr.. Dckerson, likened
this case to tariff laws. Said he, in effect, "What
merchants who deal in the article which is the
subject matter of the duty understand by par
ticular denomination in the statute, the court
and the laws intend That is undoubtedly the
rule; and the reason Of the rule is, that those
laws are addressed to merchants, as has been very
often decided. But this deed of the 18th October
is no more addressed to India rubber manufacturers
or dealers than the deed OF horse Is addressed to
q jockey, or of a farm to farmers know all men
by these presents is the language of deed and it
is for the Court to construe and say what all men
do or should understand by it; and so the analogy
which has been put forward here between this
deed and the tariff laws seems to me to have no
existence
But there is something admit, in the argument,
that inasmuch as here is particular name employ
ed, to w.t. shirred corrugated goods, and mas
much that is the manner Of design ating the sub.
ject matter of the grant it is proper to inquire and
ascertain what was known as shirred and CORFU
gated goods at the time when the grant was
made. Iagree that that may be proper inquiry.
In case like this for reasons which have already
suggested, and to which l will Immediately call
your Honer's attention, it is comparatively of
trifng Importance. If this were a grant of an
existing thing, as of piece of land, or house, or
a horse, and that thing was described by name,
as Blackacre, or my horse Billy undoubtedly it
would be proper subject of inquiry, what was
Blackacre, and is this the horse known by that
name? But, as have already submitted to your
Honor, the purpose of these parties was not to
taking up an art which was known by both OF them
to be in transition state, it was their purpose to
make grant of license to use that art in making
not only articles then existing and known, but any
which should come into existence afterwards, be
created even afterwards by new inventions, by
whatever denominations they might be called, pro-
vded they were substantially shirred or corrugated
goods of any kind. say by whatever denomina-
tons they might be called, because how perfectly
absurd it would be to say, that if the inventor of
new species of shirred goods, of which he trans
ferred the right to Goodyear, or If Goodyear him.
SELF being the inventor Of new species Of shrred
or corrugated goods, chose to baptize them 0rigi-
nally with a name different from shirred or
corrugated goods, then they would not pass
under this grant; but If he baptized them with that
name they would. Therefore say, what the par
ties looked at, and what the Court must look at is
the substance of the new thing which ia to come
into existence, and see whether that meets the
tiatng and in that view OF the case the name be-
comes immateral, and therefore it is that this in
qury which is made respecting the existing sub.
ject matter of grant, which might be decisive and
must be important, in most cases, becomes of ex-
tremely little importance in a case like this; be-
cause the parties have not only referred to things
known by particular name at the date OF the
grant, but they have referred to things that were
not in existence, and were known not to be in ex-
istence at this time, and of course could not be
called by any name.
Further than this may ma y it please your Honor, 1t
ton or or what s sd " this
was embraced within it, provided your Honor can
see upon the face of the deed that these parties
understood these terms to be comprehensive
enough to embrace any kind of shirred goods.
Because the only purpose and object of going out
of the deed is to enable the Court to ascertain from
the deed what the parties understood and in aid Of
that purpose object, the Court will resort to ex
traneOus evidence to throw light upon that mean
ing But, if from the deed they can ascertain what
the meaning was, what the parties understood by
it, they never go out OF it at all, to make any in
qury.
have already submitted to your Honor that
than boy Ella hv hat fhav
considered any kind of SHRED corrugated goods
as under this agreement, whether then existing or
not that they have expressly called goods made
with strands of native common gum, with which
Mr. Day was to compete, because Goodyear could
not put them down as infringing one OF his pa
tepts-shirred corrugated goods; and, therefore,
if we were to concede that they were the only two
people earth who understood and so considered
them, that is wholly immaterial, their intention
being the thing to be examined and to be governed
by.
have only word to say upon this part of the
evidence however voluminous it may be. We deny
on our part that articles made under Goodyears
patents were alone known in ls46 as shirred or
corrugated goods; we say the fact was otherwise.
They say the contrary. They produce q large num-
Der of witnesses. But in the first place have to
suggest that only those who can go back with per-
sonal knowledge before this grant, and long
enough before this grant to have had Jan article
like this acquire a fixed name, are available for
this purpose; and, if your Honor ever finds it ne.
cessary to come to the consideration of this
parole evidence and examine these affidavts, you
will find that that strikes out Of the case very
large number Of them, because they speak in gen.
eral TERMS they leave it doubtful how far back they
mean to carry this knowledge Of theirs concerning
designations and names.
In the next place ! have to suggest to your
Honor that nearly every one of these wit
nesses who has made an er pdrte afida-
Wit the part of the defendants has interest
in, or connection with, this controversy. Some of
them have already been sued, being importers of
these goods; some of them are liable to be sued;
some Of them have been connected in former times
with this controversy, in way to place them in a
hostile attitude to this complainant Day; some of
them, manifestly, now have connection with this
subject matter, which detracts from the weight of
their evidence. Still agree that after making all
deductions from the number and weight Of these
witnesses there those left who say, that there
was known to them by the name of shirred or cor
rugated goods, no other species except those made
under Goodyear's patent-that others were known
as woven goods. 1t struck me at first, and does
still, that 1t is little remarkable that practical