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

face of the deed itself which conflicts with it. Even
| if the broadcast effect were allowed to that prov
sion Of the act Of Congress which has undergone 50
shall nure to the benefit OF assignees and grantees
that, according to the Interpretation placed upon II
! by The Supreme Court of the United States, does
| not give an exclusive right; so that the interest
that Cutler Jencks could have even If this were
patent for machinery and they stood in such reia
| ton to it that they could take as assignees or
grantees under this decision OF the Supreme Court,
| they would have only a concurrent license and 1t
| would not in the least degree interfere with Mr..
| Days title, except so far as that ne would be I'M
able to stop them have understood, however; 80
far as have comprehended the matter at all, that
this license was put in, and the various nterprea-
tons which have been placed upon II inslstea upon
in this point of view; that inasmuch as II pre-
and inasmuch as it conveyed to Cutler Jencks in
| the opinion of the learned counsel, the right to
make every species of shirred goods under the pa
tent, il is improbable that Goodyear, having pre-
would also grant it to Mr. Dayp 1t Is an argument
as to the probabilities of his conduct, and that
| seems to me to exhaust the argument. l am not
prepared to say that no court ever allowed
any weight whatever to such consideration,
but am prepared to say, that l never heard
of, or saw case in which it was done. ! am
not aware of any case in which court mas mas
ever assisted itself in the Interpretation of doubtful
words in a grant by the consideration that II II ae
cded them one way, it might conflict with grant
which had previously been made by the grantor:
a consideration which may not be adverted to; and,
therefore, proceed to see whether there is any
such conflict here
The argument of improbability is derived en-
tirely from the assumption that Goodyear has made
grant to Cutler 4 Jencks of right to make
SHRED or corrugated goods of kind not embraced
in his patent; and if that assumption IS unfounded,
the whole argument falls to the ground.
Mr.. Brady-We do not say so; we do not say they
had any right to make any kind of shirred or cor
rugated goods.
terms; you choose to use the term woven elastic
goods" The thing is before your Honor; 1t Is
shirred or corrugated goods in point OF fact.
Whether am accurate in comforting that name
maintain, on their part that Cutler Jencks have
a right to make what they term woven elastic
goods-what we term shirred or corrugated goods
not made according to
Now the right which is granted to them is de-
scribed in this way:-"The full and exclusive right
and privilege of using all said Charles Goodyears
improvements and inventions, whether secured TO
him by letters patent or not, for the purpose OF
making, using and vending gum elastic or India
rubber composition thread or laments, said thread
or ilaments, however, before being used or vended,
to be wound, braided or covered with silk, or cot
ton or other thread"
Your Honor must have perceived, from the ma
ture of the different grants made by Goodyear that
it would be practicable to do what he in
practice has done, viz, instead of assigning
to different persons either his letters patent or
undivided interests, or sectional interests IN
t them, his course has been to grant licenses to
! make particular articles, such as boots, shoes,
hats, naval equipments &C., &c.-diferent things
mentioned in these different grants-also to
grant licenses to make different fabrics, such as
: smooth India rubber CLOTH corrugated India rub
Der cloth, DC. Such grants Goodyear has made,
and here is one Of them. 1t is right to make
thread or flaments It seems to me that for
learned counsel who stand here to maintain that,
under general grant of the right to make shrred
or corrugated goods, we have no right to make any
kind except that embraced in Goodyears patent
for learned counsel who maintain that, it is, to say
the least great stretch of iberalty to claim that
under grant to make thread or flaments, shirred
or corrugated goods of any kind may be made.
cause there can be no restriction found in the Decd
if this grant authorizes these parties to make
shrred or corrugated goods which are woven, it
also authorizes them to make shrred or corrugated
goods which are pasted or glued together; because
what is granted here is an exclusive right and
privilege of using any and all said Good
: years patents for the purpose of making the
thing granted; just as much. the right to-
use the shrred goods patent, as to use either of
the other patents. If, therefore, under this grant
to make thread or filaments, there is conveyed a
right to make woven SHRED there ga is also &c
, manner described by the patent, and thereby the
of The argument is to lay the foundation for saying
that Goodyear has not granted to Day the means OF
making these other kinds of shirred goods for the
reason that he had granted it to Cutler Il Jencks.
Is that the true nature Of the grant? Is true that
where he has authorized them to make thread or
faments, with the provision that before being used
they are to be wound braided or covered with silk,
cotton, other thread, he intended to authorize
them to make totally distinct fabric, capable of
being likely to be, and actually becoming, the sub
ject Of distinct independent grant?
J 1t is said, upon the other side, that here is q
clause providing that Cutler Jencks shall have
the exclusive right to all improvements for the ma
nufacture of the aforesaid braided threads and arti
cles made therefrom. But what does this mean?
Does it mean articles made therefrom aud from
other things, compounded into a totally distinct
fabric from these threads filaments, just as dis
tinct the material to make hats or caps, or any
thing else which Goodyear distinctly granted? This
language as to articles made therefrom occurs, as
} your Honor will perceive, not in the grant, not
, in any covenant, not in any portion of the
instrument that was designed to explain the
intent of the parties to the thing granted but it
made at the works of Cutler Jencks shall be
exclusively their own for the manufacture OF the
aforesaid braided thread and articles made there
FROM That is, if they should make an invention by
which they could make shoe lacings, corset
acings, umbrella ties, or wallet ties or any kind
of ties out of these covered fiaments, they might
turn these covered flaments into those articles but
that was intended under this designation of thread
or flaments, to authorize them to make goods,
cloth, fabrics, composed not merely and exclu
svely of India rubber thread in wound state
but composed of that and great variety OF other
things, am unable to perceive from the face Of
this instrument.
Here also very much parole evidence which has
been introduced into the applies, If 1t applies
at all. 1t is said side that the acts and con-
duct of Goodyear have been inconsistent with his
intent to grant any such license to make woven
shrred goods, and that the acts and conduct of
Cutler Jencks have also been inconsistent with
any understanding on their part that they obtained
such license On the other side it is insisted that
their acts and conduct were of different charac-
ter The evidence is conflicting. II is evidenced
by e1 parie adavits the least satisfactory Of all
species Of human testimony. Unless, therefore,
your Honor should find that, on looking into this
instrument, you are unable to relieve your mind
from doubts as to its construction, you will not
cur, az suppose, to this extraneous evidence at
ALL But il the Court does find itself obliged to recur
to it, take it that neither the acts nor conduct OF
one or both parties will ever be taken into consi-
deraton unless the Court feel that II stands up
on firm and satisfactory ground as to what those
| acts and Conduct urern ofh ruicn uo,ald ba