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

mean what tney say-snlrred or corrugated goods
generally, and without restriction-and this Is the
precise question between us.
The learned counsel yesterday said that he did
not deem it necessary to go out Of this deed for the
means Of interpreting these particular words; that
the deed itself containeda definition of those Words
that they meant only what he (Goodyear) had de-
nominated in his patent, shirred or corrugated
goods Now, am entirely prepared to concede,
think it must be admitted that If Mr. Goodyear, at
the time when he made this grant to Mr.. DAY, had
only been the owner Of the two patents for par.
ticuar kind of shirred or corrugated goods and had
proceeded to make the grant in the terms which are
here given, Of sbirred or corrugated goods, think
it must in fairness be conceded that the learned
counsel's argument would have been sound and cor.
rect and that unless that Interpretation could be in
some way controlled by the other portions Of the
deed the argument would have been conclusive as to
this part OF the case. Because it would seem to be
unanswerable that inasmuch as it is the purpose Of
this deed to make grant OF an exclusive privi-
lege-and the only exclusive privilege which the
grantor had and could convey was one arising under
these two shirred goods patents-hs intent was to
convey privilege under those two patents, and UNI
der those alone That would be- under those circum-
stances, the only subject matter within his control
upon which his grant could operates and therefore,
the construction would be that it was designed to
operate upon that, and upon nothing else Far other
wise 1t is, however upon the facts recited IN TINS
deed; for here it is reced that, besides these two
patents named in the recital for what he denomi-
mated shirTed or corrugated goods, Mr.. Goodyear is
the inventor and patentee of vulcanized rubber,
SHRED or corrugated goods made in pursuance of
GoodyeaH's patent for the method and means of
making those goods, but is also capable OF being
applied TO other kinds of shirred or corrugated
goods.
Tho vulcanized rubber is an essential part not
merely of that kind of SHRED goods which
he himself had invented but of any which he,
or anybody else. either previously had or
tirely the argument which is predicated on
the nature of the grant and the possible
subject matter upon which it might operate.
In the actual case before the court, Mr.. Goodyear
had the power to make grant of an exclusive
privilege to use vulcanized rubber, not merely in
the particular kind of shired or corrugated goods
for which he had taken patent bat in any other
kind which he or anybody else might have invent
ed or might afterwards invent
Now, this being so, let us turn back once more to
those words of grant. The grantor might have
made general grant Of privilege to use vulcan
lied rubber in any species of shrred corrugated
goods. What has he done? 1t is "a license or pri
vilege to make, use or vend shrred or corrugated
goods'-general words; not ''my said shirred
corrugated goods fixing identifying and restrict
ing the meaning, by reference to a particular pa
tcnt; but general words, "shirred or corrugated
goods" capable, certainly, of comprehending any
kind then existing, afterwards to be invented.
Were these words intended 10 comprehend any
kind then existing or afterwards to be invented?
That is the question.
The first rule of law which I suppose occurs
to the. mind of any lawyer, when thus
biguity IN grant is to be taken most strongly
against the grantor. And not only in the old law but
in modern times has this rule been resorted to and
applied in ca ses which were very striking certainly
atording relief by this rule to the judicial mind
to conduct it out Of difficulty. Thus in of the
cases to which have referred, decided in Massa
chusetts, grant was made OF land, bounding it
easterly on the flats; the sea- under the law
Of Massachusetts, meaning low-water mark, and the
flats meaning highwater mark; that, in legal in
depreciation, the deed gave one boundary upon
low-water mark, and another upon highwater
mark The Court said, We cannot tell with GER
tainty from these words what was intended by
these parties if we look merely to the words them
selves we therefore call in aid the rule Of law that
must take the consequences of that ambiguity; and
the land is bounded by low-water mark. So, in
many cases to which l have referred your Honor,
in Coke Lttleton and other books, which will not
stop to detail, the rule itself and many applications
of it being familiar to thesmind of the Court
But do desire, in order to show how applicable
this rule is to this case to ask your attention to
reason which is given by Blackstone in his Com
mentaries, why the rule has been established, or
rather what is of the reasons for it, and it Is this:
"That, hereby all manner of deceit in any grant is
avoided; for men would otherwise affect ambiguous
and intricate expressions" 1t is to prevent
grantor, who has a secret knowledge of facts to
which the words he employs would apply advan-
tageously to himself and disadvantageousy to the
grantee from using ambiguous expressions, and thus
escaping, by means of them, from the true meaning
of the words of the grant as the grantee had
right to understand them. Now, let us see, may it
please your Honor, if this reason has not direct
and immediate application to this case.
The defendants have put into this case an afhda-
Wit of Onderdonk, one portion of which desire
to read to your Honor. He first begins by saying
that, ''being licensee, Mr.. Goodyear applied to
him to get him to surrender his license, in order
that he Goodyear, might carry out an arrangement
he had made with Mr.. Day; that he was unwil-
ling to surrender his license considering that it was
profitable business, which he desired to retain.
f1,Io ,ic inn onuip al
citation of Mr.. Bishop, to surrender his license to
Mr.. Goodyear; that Mr. Goodyear applied per-
sonally to him at New Brunswick, and urged him
to consent to such surrender that at first this de-
ponent persisted in his refusal, and Mr.. Goodyear
urged various arguments upon it; among others,
he produced small piece of woven India rubber
goods, which he showed to this depOnent, and said
that that class OF goods would undoubtedly super
sede SHRED goods at some time and this deponent
recolects perfectly the piece of woven goods, and
the remarks of Goodyear upon it; and that Good
year, among other things, said that when this woven
goods became valuable this deponent might have
chance at it."
This was Immediately before this man surrendered
his license. He surrendered his license the first
day of December, within short time after the
original grant from Goodyear to Day, which are
now considering, and before the entire transaction
was completed between these parties.
Now, pray your Honor to consider this matter
for one moment. Here is a grantor, who is settling
a controversy with this complainant Day. 1t was
to be an adjustment of litigation; a species of
contract which, as your Honor knows, is upheld by
a court Of equity, even with strong hand, and
against serious objection. 1t was matter in which
the parties were called upon, by every considera-
ton of law and honor, to exhibit good faith TO-
wards each other. Mr.. Day, as they have read from
his answer in the New Jersey case, and as is clear
ly inferrable from this deed, had an expectation,
grounded on the provisions of the deed ITSELF that
he was to have monopoly of this shirred goods
business. Mr.. Goodyear knew that there was a
secret deeply affecting the subject of his grant.
He knew that although woven elastic goods had
long been known in the market they were made Of
unvulcanized rubber, and therefore were of com
paratively little value; that the art of making
these goods OF vulcanized rubber had not yet
been attained and made public; the difficulty
being, as was explained to the Court by
Mr.. Dickerson that, although you could weave
the strands Of unvulcanized rubber when they had
been extended and their elasticity taken out of
them and restore their elasticity afterwards by the
application Of hot water you could not treat vulca-
nized rubber in that way. 1t was necessary to
weave the strands while their state of elasticity
ad md tha mi Of In, hal Hac