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

understand what is meant by subsequently re-
leasing part OF what was thus conveyed: under
stano what Is meant by making Q declaration in
writing, which il operative in point OF law. de-
ciarng what the parties intended by that previous
deed, and to be taken in aid of its Interpretation
InaI oeed contained covenants az well as q grant,
and understand what ia meant by releasing the
covenants that were contained in IT, or inserting i'm
new deed some that are inconsistent with them
and which, therefore, as they manifest the later
determination Of the parties, would in that sense
supersede the former. But this is as far az can
carry il. Unless this deed operates in one of those
ways am unable to perceive how it is to affect the
former grant. Uuless it releases something, or
contains declaration, or was designed to contain
a declaration of what was intended by the former
grant, unless it contains some Inconsistent
covenants, or some release Of covenants, am I'M
able TO perceive how the second deed is to operate
upon the first. do not believe that it makes any
difficulty when We come TO understand what the
real purpose and Office Of this deed was. So far
from having either Of the effects to which have
adverfed, il was intended in aid of, and for the
more complete execution Of the preceding grant
and the covenants which followed that grant in the
auxiliary articles. Certainly there is nothing in this
deed TO regrant anything hat had once been con-
yeyed, nor anything in IL which undertakes to de-
clare the meaning of the preceding grant, or to re-
lease covenant, or to insert an inconsistent cove
nant.
What, then, was the intention of this deed? 1t
begins by reciting, that whereas have agreed to
assign to Horace Fl. Day, OF Jersey City, the sole
and exclusive right 10 make, use and sell to Others
to be used, shirrcd or corrugated goods" Agreed
to assign! Why, he had assigned it, he had assign
ed it by the instrument of the 10Th October. But
this instrument, as your Honor will remem-
Der, contains an exception. 1t is found in
can be, repurchase and cause to be cancelled,
the second covenant. 'that said Goodyear will,
at his own cost and expense, and as speedily as
all and every contract, assignment license, privi-
lege agreement made or granted by him, others
claiming by, through under him, except the three
bereinbefore mentioned that is, the licenses to
Onderdonk and LetsOn, Ford Co., and 1lutchin-
son Rnnyon. Those were outstanding; he did not
agree to get them in; but afterwards, after the ex
ecuton OF this deed of the 18th of October, he pro-
vides, in the second memorandum Of agree
ment, the he will get them in: 1.-The said Charles
Goodyear hereby covenants and agrees, to and
with the said Horace II. Day that he will procure,
and cause to be assigned TO the said Day, to be
cancelled, the three certain licenses specified and
excepted in the articles to which these addi-
tionain
What, then, may it please your Honor, is a pro-
per Interpretation of the words of this recital the
deed Of the 9Th December, ls46: "Whereas have
agreed TO assign to Horace II. Day, the sole and
exclusive right" He had executed his agreement
in part by the deed OF the 10Th October but not in
whole. There were outstanding rights which he
must get in, according to his contract, and he
must transfer to Day, by effectual means, the
residue of the title. That undoubtedly Is meant
here, when it is said that 'he has agreed So far
as il was eXecutory, it related merely to these
agreements. Then he goes GA to say
"In consideration of i've thousand dollars to me
contained l have assigned, sold and set over, and
do hereby assign, sell and set to the said Day,
his executors, administrators and assigns, the sole
and exclusive right license and privilege for the
whole United States, to use the machinery in said
before recited patents described and to make and
vend the slirred and corrugated goods in said pa
tents mentioned"
Now, here, may it please your Honor. are four
patents, and shirred and corrugated goods are men
toned only in two OF them:--
and to use in the preparation thereof.
and also in the preparation and manufacture
&C., in said letters patent described, for and
during the term Of said letters patent, and all
newals and extensions thereof"
Goodyear grants to Day the license to make such
SHRED or corrugated goods, and ''to use in the
manufacture of such shrred or corrugated goods,
all improvements in the composition, or fabrics or
machinery aforesaid, or new compositions, fabrics
or machinery to be made by said Goodyear, and
for which said Goodyear now holds patents, or may
obtain or hold patents by grant, purchase other
WISE for and during and until the expiration of the
patents, an exclusive right whereunder is above
contained, and Of all renewals and extensions there
Of" ,..,,,.;o,
to make such 81 saods:
there follows in the same breath statement SINH
lar to that which was contained in the main instru-
ment, to wit: that if Mr.. Goodyear should make an
invention, even if it should be one affecting
machinery by which the manufacture is to
be carried on, no matter how great the
change or Improvement may be, STILL as long
as it is substantially shirred goods, it is to be
deemed within the grant. And then comes the
same inquiry in reference to this instrument, far
as this undertakes to convey anything, whether it
was the intention of the parties, that if Goodyear
or any third person made these inventions or
acquired them, Day should have the right to use
vulcanzed rubber in the new fabric, but not if Day
himself made the invention, or acquired it from q
third person.
lido not propose, however, to pause any longer
upon this instrument because Lconceive that it is i'm
possible to maintain in accordance with any rule Of
law, that it was any part of the design Of these
parties, viewed in the most popular manner, and
aside from the strict means to be used to accom-
plish snch an object, to supersede the agreement
and grant of the 29th October. Does any man sup
pose that after this agreement had been made on
the 9Th December, there were no longer any
covenants in existence between these parties?
That Day had not entered into very specific
and carefully limited covenants? That Days
covenants were not in existence, and Goodyear's
covenants were not in existence, and that he was
no longer bound to prosecute infringers, nor to
protect Day in this monopoly: that he was no
longer bound to allow the tariffs to remain uncol-
Iected unless he failed to protect him? Why, it is
impossible to suppose that the parties being per-
fectly silent all those subjects had intended by
this instrument TO put an end to these covenants.
And If not TO put an end to them or IN any manner
to modify them, what possible ground is there for
the belief that they meant to alter the language of
the grant contained in that deed? Were not the
covenants designed to correspond with and fortify
the grant, Is not the covenant to pay tariffs upon
all kinds of shirred corrugated goods, no matter
what the fabric may be? Is that covenant pay
tariffs based upon the grant and intended to be CO.
extensive with it? And if the parties to this deed
had no intent to disturb or circumscribe or In any
manner to alter the subject matter of that cove
nant under what rule of law, or what dictate of
common sense, can it be said that this instrument
is to have the effect to disturb the grant to which
that covenant relates!
The gentlemen have read from an answer in
chancery of Mr.. Day, made in suit in New jersey,
which they rely upon to show that the instrument
ought to have such effect as they have been con-
tending for; but cannot conceive how any such
is to be drawn from it.
"This defendant further answering, says, that on
the completion of said agreement, it was deemed
advisable by said Goodyear and this defendant,
that there should be short form of assignment and
agreement founded on said new and extended con-
tracts to be prepared and filed in the Patent Office.
This defendant says, that thereupon such form
was provided by mutual consent, and filed in the
Patent Office; but this defendant says it was other
or new agreement. but was part and parcel of the