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

part is-and it is for the Court to say whether
L is sound argument-that by means of that nstru-
ment the Naugatuck Company eXtinguished us
presumption right to Goodyear.
BY that grant they not only release all right they
have or may have, in and to the application OF any
preparations Of India rubber to the manufacture OF
shrred.or corrugated goods, but they insert an ex
press covenant that after the first day OF January
1917, "they will not manufacture, or cause to ee
manufactured, or be directly or indirectly concerned
in the manufacture of shirred or corrugated goods
That being so, we suppose that their preemp-
ton right it ever existed, was released aud con-
veyed to Goodyear by force of that deed; and when
Goodyear conveyed to Day those same rights under
that deed, Of course he conveyed them free rom
any pre-emptive right whatever in the Naugatuck
1t would be unnecessary, as your Honor
perccives, in that point of view, to advert
at ALL for the purposes of this case, to the
agreement or grant made in May last from Good
year to Day; because, if the title was in the
Naugatuck Company to. apply .vulcanized rub
Der to the manufacture of other kinds
of shirred corrugated goods, they conveyed
it to Goodyear, and Goodyear conveyed 1t to Day.
For the purposes of this case, therefore, it would
be unnecessary to resort to that grant and that is
the reason why that grant from Goodyear to Day
has not been put forward in this case as the exclu
siye source of title and relied upon by the COM
plainant as SUCH From the beginning Of this case,
however, to the present moment, both he and his
counsel have been quite aware that there were
species of goods embraced in that agreement which
from Goodyear to Day, made in 1876; and there
ore, inasmuch as there might be doubt also, whe-
Their this particular species, which Is now before
the Court, and complained OF, did come under that
per to make this additional and confirmatory title
of May last part Of this BILL and to rely upon 1t in
this case, far as it might be necessary to 40 SO,
and with no view or desire whatsoever to ask
for decision of this Court based upon one rather
than the other of these agreements Or rather per-
haps, ought to say, if Mr.. Day has any desire or
any interest in this matter il would be that his title
under the deed of May last from Goodyear might
be declared to bea good title on which ne could
stand, leaving out of view entirely the preceding.
If there be any separation between them-if there
is to be decision made upon one part and not
upon the other part it is both the wish and interest
OF Mr. Day that that decision should rest upon the
grant in May last rather than upon the earlier grant
in Is46.
Let us then for moment look at this deed made
in May last, and see whether the objections which
have been made to it by the learned counsel are
tenable. He first insists that it does not presently
convey anything, but is mere executory agree
ment But, if your Honor is to decide what the par
ties mean from what they say in their writing, do
not know how there can be doubt about this. 81
hereby sell, license and convey, and do hereby
agree to confirm" one part of this as much as the
other evidencing present conveyance, because
you cannot confirm thing that has not already been
conveyed. You make new title, and nota confirma-
tory title, If there has been no previous convey
ance of any title. And this language, which is
thus clear and explicit, not admitting of two inter
pretatiOns, is perfectly consistent with everything
contained in this deed. The learned counsel goes
on 60 argue that here is provision by which the
consideration is to be fixed, requiring the aid of
Nathanial Hayward and my colleague, Mr. Jenckes,
and non constat they will ever act in the matter.
Well suppose they never do act in the matter; that
does not prevent the conveyance from taking eff
feet He says court of equity would not compel
the specific performance Of an agreement OF that
Sort one Of the terms of which that there was
til ifrofi mi IN fY a
sons had acted or were willing to act.
Mr.. Brady-A little more than price-all the
terms and conditions there was of the bargain.
Mr.. Curtis-I do not so understand the agreement.
All the terms and conditions Of the bargain, the
counsel says, are to be fixed by others. Now,
/ do not find anything in this deed that
calls for or admits any such interpretation as
that. "The terms and conditions upon which this
license shall be held and enjoyed as to bonuses,
not exceeding in the whole the sum of 100000, and
tariffs not exceeding five cents pound, shall be
fixed"
Mr. Brady-That read parenthetically.
Mr.. Curts-Well, it must be read very parentheti-
cally, think to ntroduce any other terms and con-
dti0ns of the bargain, when it says the terms and
enjoyed as to bonuses not exceeding so much, and
to tariffs not exceeding much, shall be fixed.
do not see that there is any ambiguity in it.
Mr.. Drady-There is nothing said as to how they
are to be paid, nor when.
Mr.. Curtis-Tbat is quite true. The argument
which was proceeding to consider was that Court
of Equity would not enforce aspecifc performance
of this contract in case where these two persons
refused or failed to act. In the first place doubt
the law. Where the purpose Of the parties was
manifestly merely to fix the price, Courts of
Equity have said that they will put that in the
hands of master; they have sufficient confidence
in his discretion to let him fix it. Besides, could
not Mr.. Day tender the whole $50, 900 and
offer to pay the five cents per pound? We are
not asking here for any specific performance of the
contract. Here Is an executed conveyance make
by Goodyear to Day. and perhaps one Of the very
reasons that made it an executed conveyance in
stead Of an executory one, was that they or their
counsel had doubts whether if il were left execu-
tory, it could be enforced. At all events whatever
their reasons may have been, they have made an
executed conveyance. Q
Moreover, what are these terms and conditions?
Are they conditions precedent, or conditions subse-
quentg Are they conditions upon the performance
Of which the right is to vest, they terms and
conditions upon the performance of which the
right is to be enjoyed? "The terms and conditions
upon which this license shall be held and enjoyed"
are the words; not acquired but held and en-
joyed; entirely consistent with the previous Ian
guage of the grant in which, by words as apt as
any lawyer can select, a grant has been made.
do not know, may it please your Honor, that it
is my duty and certainly it will not be my plea
sure, to occupy more Of the time of the Court with
any observations upon this case. return your
Honor my sincere thanks for the patience with
which you have listened to me, and regret that it
has been necessary to make SO large demands
upon it.
KpnRTAET TRnM g0IrTU hMrpIrk