The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-07-29

Of the patent. was as prcpe.. Experts may be ex.
amined as to the meaning on terms OF art, on the
principle OF c,tique in sua drte ..redendune put
not as TO the construction of written nstruments.
ana IN II Howard In the case OF WinaSs VI, a cne
the Court says" The testimony Of experts which,
was rejected had relevancy to the facts on which
the jury were to pass, but seemed rather to be in.
tended to instruct the Court on some mechanical
facts or principles on which the Court needed 40
instruction, or to teach them what was the true
construction of the patent. experts may be ex-
amned to explain terms Of art and the state Of the
art at any given time: They may explain to the
exhibited. They may point out the differences or
identity of the mechanical devices involved in their
construction. The maxim Of cuique in suG arte
credenduns' permits them to be examined to ques
tions of art or science peculiar to their trade or
profession; but professors or mechanics can
not be received to prove to the Court or
jury what is the proper or legal construc-
ton e any instrument Of writing Judge
on matters which he does not clearly comprehend,
but cannot be compelled to receive their opinions
as matters OF evidence Experience has shown
that opposite opinions of persons protesting TO- be
experts may be obtained to any amount, and it
often occurs that not only many days, but even
weeks, are consumed in crosse Examination, to test
the skill or knowledge of such witnesses and the
correctness Of their opinions, wasting the time and
perplexing instead Of calculating the questions in
volyed in the ISSUE" Greenleaf on Evidence very
clearly points out the cases in which the Court will
bring in the aid of the testimony of witnesses to
leaf on Evidence, 1922 "From the examples
given in the two preceding sections, it is thus ap
parent that the rule excludes only parol evidence
of the language Of the parties contradcting, vary
ing or adding to that which is contained in the
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 mischefs which would
result If verbal testimony were in such cases re-
ceived. 1t is also to be kept in mind that though
the first question in all cases of contract is one of
Interpretation and intention, yet the question,
we have alre ady remarked is not what the parties
may have secretly 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 is obvious that parol evil
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 considerations Also, in section ESQ, he
says:-"As it is leading rule in regard to written
instruments, that they 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 explain the subject of an instrument
is essentially different in its character from evidence
OF verbal communications respecting it. What
ever therefore, indicates the nature Of the subject
is just medium Of Interpretation of the language
and meaning of the parties in relation to it, and is
also 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 resortng to usage for the meaning of
particular words in contract, distinction IS to
be 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 familiarity known and en-
poyed, either in particular district, or in part
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 parol testimony
have looked through the whole Of the testimony
in this case-having read it twice very carefully
and it has left this impression upon my mind that
known to the trade in New York prior to 1874, and
that these goods were of various kinds. 1 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 i'm
ported them, and they describe the various kinds.
Many Of these witnesses were dealers in india rub
Der and some were milliners, and their testimony
gated goods" was well known prior to 1914.
There is some conflict between this testimony and
the testimony of some of the defendants witnesses
on this point; but in regard to many of the. wit
tiiaI they are interested to defeat the compainants
claim; how far, the Court cannot say; but many
of them are manufacturers of these woven elastic
goods of vulcanized rubber Under what right
they manufacture them they do not show but
clearly, if the compliments claim can be main
tanned these parties are infringing their rights
therefore their testimony should be received with
part Of the testimony Of tie pp defendants wit.
nesses, and it is this: that they testify that there
is marked difference between the woven
elastic goods and the goods made under the patent
of March 0, 1874 That is apparent to the eye, and
no one denies it. The Court being satisfied that
this term SHRED was well known, endeavored,
from. The term used in the contract is shirred or
corrugated goods" Corrugated, as Ihave already
remarked is an English word well known, meaning
wringed, and it would therefore, read just well
gated"is added to explain what might otherwise
be unintelligible to the uninitiated-to explain the
word "shrred." 1t is used so, doubt, in the pa.
tents and other instruments where it has been in
corporated l looked through all the French and
English dictionaries in vain for the word shirred"
could not find it, The nearest word have found
resembling it-and have no doubt it comes from
that-was word in the dictionary of the Scotch
"shriver" or "shrink up" Probably when the word
crossed the Tweed and came south, they dropped
the and called it "shir."
We now come to the contract of the Doth of Oc-
tober, 1916. What did Goodyear mean by the
manufactured under his patent of March 9, 1874,
or did he mean all "shirred goods" such as were
imported and then known to the trade?
have looked through the documentary evidence
in this case to see if | could not be relieved from
any conflict of testimony of witnesses by the unvary
ing and undertaking records of the written instr-
ments. Where interests are so complicated and
valuable as these interests Of the india rubber manu-
facture are, the Court would repose with much
greater safety on any light which it might receive
from the written instruments in the cause contem-
poraneous with all these contracts, or any collate-
raj ones, than from the testimony of witnesses
taken post lite1, nolan; and the Court found a
piece OF evidence which was very full on that sub
ject, in the application Of Goodyear for an extern
sion Of his patent. | read from this to show that
wherever Goodyear intended to limit the manufac-
ture of "shirred goods to his patent of March 8,
1914, he designated it by words limiting the grant
to that kind of 'shirred goods" He has given an
to how what hat he had realized from his patent Of
June Is, 1874, which he was then seeking to have
extended; and he says at folio 220:-"In 1874, the