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

the leaulnB op)ect OF the 0ee0, anu snVuu ~
not be construed in such manner as most enectual.
y to carry out that leading object, and Il So should
q construction be put upon the general words OF
the grantor restraining them, that this restrict
ed meaning must inevitably plunge the parties
into Just such disputes as they were settling!
The argument on the other side Ia, that what was
intended to be granted was what was previously
described in Goodyesr's patents for shirred goods,
nothing more. Well, must not anybody connected
with the subject have foreseen-did not Mr. Good
year know--that in the progress OF invention upon
this subject, other articles even If they had not
then appeared, would appear, which would give
rise to questions of the utmost difficulty as TO whe
ther they did OF did not come under that particular
patenU The shirred goods complained OF IN TINS
case can answer all the ends OF such goods, are
capable Of coming into competition with
them, and, as the defendants counsel say, can
drive them out Of the market. Goodyear
secretly existed. Must not any man in his senses
connected with this business have foreseen that
The clauses Of this deed to which l shall refer
presently, will prove that this contingency was an
ticpaed. Is an interpretation then, TO be adopted
by which these parties must have fOreseen they
would be plunged anew into difficulties, disputes
and litgatons like those they were then adjusting
There are anidavts, may it please your Honor, in
this to the eectthat, although the species OF
shirred goods against which we complain in this
case are woven, still they come under Goodyear ca,
patent for shirred goods. Without entering fully
into the reasons for this opinion, they may shortly
tie stated thus:-That woven shirred goods are
capable OF answering the ends uses as those
made in precise and literal conformity with Good
years patent; that they made by combination
OF strands Of vucaDized india rubber, combined
with some textile material as to make corrugated
goods; aad that the shirring corrugation, to
which particular quality of the goods all its
attributable, arises from identicay the same cause
in each-tO wit: the application in some mode Of
strands of such India rubber when extended, the
release OF those strands, their contraction by force
Of their elasticity, and the consequent wrinking or
corpgation Of the goods. say there arc afidavits
in this in sepp0rt of that position. It seems to
me to be question of difficulty. am not prepar-
ed to say that in nay judgment, it is one way the
other, to argue that it is one way or the
other But am prepared to say, that it affords an
illustration Of one of the disputes which it must
have been the purpose of these parties to avoid.
When they settled their controversy, and allowed
Mr.. Day, as is agreed by the instrument to have a
monopoly Of the SHRED goods business, they could
not have intended, submit, to use language which
should be justly interpreted so as to expose the
parties to renewal of the very troubles from which
they were then making their escape.
Another rule for the Interpretation of deeds,
which believe to be equally well settled, is, that
every part Of the instrument is to be looked at Not
merely the words of grant which are themselves to
of the old Judges said, every string must have
its sound. propose to ask your Honor to fol-
low me in brief analysis of this deed | will first
state what believe will turn out to be true that
~,
which is not in entire accordance with that inter-
probation of the general words which we seek to
have put upon them; that it contains provisions
which it is highly improbable would have been in
serted if that not the true interpretations; and
still other provisions which are Inconsistent with
the restricted meaning which has been commended
for by the learned counsel for the defendants.
The first clause to which shall ask your Honor's
attention occurs very early in the deed, and under
article 3:-"That said Goodyear will not hereafter
grant any right. license or agreement to any person
persons bodies polite or corporate, to manufac
ture vend OF use corrugated or shrred goods or to
build, use vend any Of the aforesaid machinery,
or to use any of his compounds in the manufacture
of shirred or corrugated goods, and will not him.
self manufacture or import any corrugated or
SHRED goods"
Now, here are two distinct stpulations in this
covenant The first is that he will not license any
person to his shirrid goods patent; and the
cond is that he will nob license anybody to any
of his compounds, that ia, vulcanzed India rubber
made with sulphur, in the manufacture Of shirred
or corrugated goods. What was the necessity for
the second, if the grant is limited to corrugated
goods under the patent? He has already covenant
sa..d goods UNDER the PATENT Why 60 and
that he will not license anybody to use his com
pounds in making corrugated goods, unless with
out the insertion of that stipulation, although ne
did not license anybody to manufacture under his
patent, and SO kept the first part of his covenant,
he might have licensed somebody to make them
not under his patent, but using the vulcanized rub
Der?
The next section to which ask your Honor's at
tention is the 5th: "That said Horace H. Day, his
representatives and assigns, shall have and ENJOY
the like full, free and exclusive right license and
privilege to make the use in the OF shr
red and corrugated goods, all improvements made,
or to be made, by said Goodyear, or OF which
he his representatives or assigns, may become the
holders or owners, for which patents have been or
shall be obtained which relate to shirred or CORFU
gated goods, or to the machinery for preparing or
making the same, the composition, stuff fabric
of which they may be composed, or the machinery
for preparing finishing such composition, stun or
fabric and also the right to use such improved COM
position, stuff fabric in the manufacture of all the
other articles in these presents above enumerated"
1t is not to enumerate them, because they
do not bear upon this case.
Now may it please your Honor when come to
remark upon that part of the argument of the learn
ed counsel which turns upon the name given to
things and known to the trade &c, shall have
something to say upon the view, which esteem an
important one, that the subject matter OF this grant
was not an existing thing like the grant of house
horse, but license to be exercised in future, aud
to be exercised in trade or art, which the parties
themselves anticipated was in an advancing state,
likely to undergo many changes, and for which
they made every provision which the relative po-
stion of the parties to each other rendered neces
sary The truth was, as have already stated, that
although shirred goods, made by weaving with
strands of native rubber, were we'll known in this
market at that time, and will be found expressly
referred to in this deed, as shall presently show
yet shirred goods made with vulcanized rubber
were known to nobody but Goodyear, and proba-
bly, one or two others, who had thus far kept the
secret. STILL both parties anticipated that in the
progress of this art, changes would be made, not
merely in the method of manufacture but as is
here expressed, in the composition, stuff or fabric
of which the SHRED goods are to be made, and
in the machinery by which the composition stuff
or fabric was to be wrought or composed. That
was anticipated. Now, what have the par
ties agreed "Why," says Goodyear, although
an entire change should be made by me in the
mode of manufacturing shirred goods, 50 that even
the fabric shall be changed, and that the method
of making that fabric shall be changed still agree
that you are to have the benefit of those improve
ments when ! make them, because, in substance
and effect, they will be corrugated or shrred goods;
and not only agree that you shall have them if
make improvements, but if i can acquire such inn
provements, owned or made by others, you shall
have the exclusive privilege of applying vulcanized
India rubber to those improvements
Now, what is the argument on the other side?
Why, it is, that although it was the subject of an
express contract and covenant that fGoodyear him
self should make an improvement by which the
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