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

The third license, to Ford 4 Co., Is also in the
Of each other This was re.conveyed to Goodyear
on the Sd OF December, 1916.
!, There was reference made by the counsel for
the defendants (Mr. NarshalD In his argument to
the release of one Of those licenses by the Newark
huDper GOETHE Hutchinson q Runyon License
Wnicn Processes to release only the right TO make
!ne goods under the patent of March 0. The re-
lease bears no date but was recorded on the 9th of
december, 1916; and the covenant on the part Of
the company is this:-"And the said Company CO.
venants and agrees to and with the said Charles
GOODYEAR, that they will not manufacture shirred
or corrugated India Rubber goods, in violation of
the patent for said manufacture issued to Charles
Goodyear on the 9th day of March, 1884," The
granting part is:"K Know all men by these presents,
mat the Newark india rubber Manufacturing Com.
Pany, IN consideration Of one dollar to them paid
by Charles Goodyear, has assigned to the said
Charies Goodyear and his assigns all their interest
IN tne Within instrument, and every clause article
OF thing therein contained" The assignment Is,
therefore, general it is merely the covenant, that
they will not manufacture SHRED or corrugated
goods That refers to the patent of March o. But it
somethlng remarkable that the same day they made
general release and a general covenant, as fol-
iows:-"For and in consideration of one dollar, to
us in hand paid by Charles Goodyear, and in cen
sdeialion OF other good causes US thcreunto
moving we hereby assign, transfer and set over to
sald Charles Goodyear, his executors, administra-
tors, and assigns the within license right and prvi
lege, and the assignment thereof to us, and all
rgnts granted or intended to be granted thereby or
incidental thereto, in as full and ample manner as
we now hold and possess the same. And we also
snpglate covenant and agree that we will not, after
the LIST day OF January, thousand eight hundred
and forty seven, directly or indirectly manufacture,
or DO concerned in the manufacture, of shirred or
corrugated india rubber goods" S0itappears that,
nndng their error, they corrected it. One release
Is endorsed on the assignment, and the other the
original license.
think, SO far as have been able to draw any
inference from these licenses, that they all
strengthen the conclusion to which have arrived
that in the contract of October 30 1916, the term
"shirred or corrugated goods meant all kinds of
shirred or corrugated goods, whether cemented,
woven or sewed, and is not limited to the goods
made under the patent of March 0, 1874.
And this is further apparent when we look at the
license to Suydam. The argument for the defend
ants is, that Goodyear, when he used these words
in the instrument of October 20, intended only the
goods made under the patent of March 9. On the
oath OF May, 1874, Goodyear sold to Suydam the
right to manufacture shirred goods under the pa
tent OF March 8. The language expressly limits
his right to those goods alone. II is not ~ sell
the right to make shirred or corrugated goods
but it rectes: "All my right title and interest in
and to two certain patents granted to me by the
United States of America, both dated the 9th day
Of March, 1874, for an Improvement in india rubber
fabrics" Now hold it to be very clear that if
man owns two rights to manufacture goods by pa
tents of different dates, and he sells to his right
under one specifically, and to the right to manu-
facture the goods generally, as matter of course
the fair construction of the latter grant will be held
under both patents; because in the first grant,
when he intends to limit it to one he so rectes on
the face of the grant, and in the second lie does
not.
1t would be useless for me to 60 over all the
ground so very ably occupied by the learned coun-
sci on both sides; indeed, am not able to do jus
tce to it.; but hold the title of Day to be clear
under the contract of the 10Th of October 1885, to
use vulcanized rubber in the manufacture of all
shirred goods, whether they be cemented, sewed
or woven.
But will say word or two on the deed of the
2ith of May, 1858. 1t certainly embraces all the
articles concerning which this controversy has
arisen ar by express terms If not granted today by
the deed of 1858. ! do not speak now about the
validity of it-whether it operates in present. or
IN ttttbrObut on its face it terms which will
embrace these articles. 1t grants to Day the right
for the present and all extended or renewed terms
of said patent, as the same may or can be used in
the manufacture Of all braided, woven, cemented
or sewed fabrics, or such as are can be covered
or protected on one or both sides with substances
other than rubber, and in all smooth elastic
shirred goods" Now, if Goodyear had the right t.
'n. auahder it. Is it not perfect deed in
itself? This deed was attacked on the ground that
it was not valid But it is deed under seal; it was
given for consideration and it speaks in present.
covenants in it which have not been performed
There are things which rest in grant and things
which rest in covenant In almost every lease or
deed If not quite every one, there is something that
rests in grant and something that rests in covenant
The words in this grant are, g" hereby sell, license
and convey" There it is ia PRESENT. it operates as
agrant. Then it says" agree to confirm That
and Sd
use my name to prosecute and defend the rights
and privileges hereby granted" Then it provides
And the terms and conditions upon which this
license shall be held and enjoyed, as to bonuses,
not exceeding in the whole the sum Of thirty thou
sand dollars, and the tariffs, not exceeding five
cents pound on the product, shall be fixed and
determined by Nathaniel Hayward and Thomas A.
Jenckes whose award in the premises shall be final,
18th day of June next"
Now am not called upon to give construction
to this covenant in this deed as to what might be
its effect. But Goodyear made it, and with it he
made grant IN present.. If the covenant fails by
his laches the grant nevertheless stands. The CO.
venant does not affect the grant; the grant passes
the title and operates IN present.. The covenant
may have become impossible by the expiration Of
the time, but yet the grant stands. Is not that well
known principle in the common law? If by the
expiration of time such covenant becomes impos-
sible, the grant stands.
But had Goodyear this right on the oath of May,
1855? That depends upon the construction which
you give to the license of Goodyear to the Manga
tuck Company on the 18th of July, 1874? Did that
license carry the right Of the Naugatuck Company
into the extended term of the patent of June Is,
1874?
Now, if the Supreme Court have decided that
question there would be an end of it. But do not
consider that question as decided in 20 Howard.
Courts are called upon only to decide questions
that are before them. A judge some times in giving
an opinion uses language which, although it always
is entitled to consideration and respect yet in refer
ence to questions that were not before the Court and
the decision of which was not necessary to its de-
cison of the questions before it, is not of binding
authority. The case in 10 Howard was ths:-Day
complained Of the violation Of the Chafee patent
cover unless he could satisfy the Court that he was
the owner of the patent. The Court decided that
he was not the owner.
There is point in that decision which will read
in reference to the question Of the validity of the
deed of 1868, In the case Of Day vs.. Hartshorn,
tie Court had decided that the Chaffee patent
was in Judson for the benefit of Goodyear They
speak of two contracts that Judson made, but
tba decison rests unon the last contract ~ tho