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

in sattns aside this whole mass of ca parie afida-
Wits as not afiording assistance III interpreting '"'
deed? for,
/ Shall now ask your Honor's attention for rev
moments 10 another branch Of this oral evidence
which relates to the conduct OF the parues; s anu
here have the honor to concur Wi'n INV nt .m
ants counsel, that this is not case wns.e
oIIs evidence in respect the conduct OF the pares
il sdmissible They think these deeds SO clear that
the evidence is not admissible eitherto forufy orto
impeach the construction which they seek 10 put
upon the deeds. | entertain the same view, never
.theless this evidence has been eNhioueo 10 Tue
Cont. has been read and commented upon, and
should not do my entire duty. fear, In this cause,
if were to pass it over without remark. But
intend TO be extremely brief upon it. 1t is not my
intention to take up these eI pdrte adavits given
by interested witnesses, behind the back OF Mr.
Day and drawn by skilful counsel after the precise
points in which the case pressed were known; II Is
not my intention to take up these aflidavts and ex
anime them in detail, and for the reason that be-
lieve it to be entirely unnecessary.
The ground Of the rule for the admission OF the
acts of parties to aid in the Interpretation OF deeds
is, that if person has received grant, has sell.
interest will cause him to claim under that deed all
that Justly belongs to him; and when the Court
finds itself unable by examining the language OF the
deed to determine what does justly belong to him,
it WILL in instances look outside OF 1t and see
what he has done when claiming under it. But this
has no application to a case where party has not
claimed under deed, but has been acting ad'
versely to it, and has repudiated it, Then MS
conduct can throw no light whatever upon the
deed That ia exactly this case, and 1t covers tne
entire body i0f this parole evidence upon the SUD-
ject of the acts of MIR. Day,
pray your Honor to take two or three dates as
to which there is no dispute whatever IN TINS case.
Mr.. Day took his license on the 18th October,
1896 The title does not seem to have peen COM
pleted in him-probably nothing was done or I'M
derstood to be done under it-nnt an early day IN
january, lS47, when it was agreed that the other
manufacturers who had been engaged In making
these goods should cease their operations, as Good
turers as appears in the New Jersey suit which has
been referred to on the other side, instead of ceas
ing their operations, as Goodyear had agreed
they SHOULD went nnd on t and maas go yas
patent of somewhat inferior quality,
nut them into the Market and rendered it
impossible for Day to enjoy the monopoly which
had been conferred upon him, and which Goodyear
agreed that he should enjoy. He called on Good
year for protection Goodyear either through in
ability or reluctance, did not protect him. Under
the clause in the contract OF the 18th October upon
this subject, Day took the ground that ne was no
longer bound by his covenants in that contract for
the want of that projections and unfortunately for
himself he went further and insisted that he not
only was not bound by those covenants to continue
to pay his tariffs because he had not got the protec
ton in accordance with the contract, but that the
whole contract was void and imperative, and that
he day was reinstated in the position which he
occupied before the agreement of compromise Of
the 29th October. Goodyear brought suits against
him; he sued him for the tariffs; the jury found
that he had not been protected, and no tariffs were
due. He sued him for an injunction in equity, and
Day set ND the defence which appears in this an
swer-passages of which have been read, to
the effect that he was not bound by the agreement
of the 29th October or anything done under it, but
was renstated in his former position. And, sir, that
litigation which was thus begun Immediately after
Day began to act under this license in January,
ls47, was continued down to the time when de-
1,xyA r Inst .ria Ind
Dickerson in New Jersey, in September, 1852.
That was the position which Day during that time
occupied in reference to this deed; not claiming
under it, not conducting in reference to 1t, not
anybody has q right to draw an inference as to
what his Interpretation of it was, but acting in hos
tility to it, and in open opposition to Goodyear and
his patents.
on the 10Th of October following sold his entire
/ interest to the Congress Rubber Company, cor
poration, the deed to whom is in this CASE 1t wa;
stated the other day by Mr. Dickerson that Mr.
pany. There is not particle of evidence before
the Court to substantiate that statement, and
am informed that it is NO. s II u5ecrdbet ffsi 1851
and he did not get back the title until Novem
Der H. 1851; and since that time. | am not
aware that the other side have brought forward
that it is said my brother Seward has been coming
into this court, and all other courts within
reach with arms full of bills to obtain injunctons
and put down these importers of foreign woven
shirred goods. Well, then, what possible conse
quence is it upon this view of the facts, which are
uncontroverted and incontrovertible, what has
been the conduct of Mr.. Day, far as regards its
bearing upon the Interpretation Of this instrument
There is an affidavit in this case, however, which
lies little aside from this course OF remark, con
corning which must make a few observations
1t is the affidavit of Goodyear, in which he begins
by saying that when he obtained the patents
for shirred goods and machinery issued tc
him in 1s44 he intended to secure to him
self self the right to snch goods as are in said pa
tents particularly described; thing in which al
mankind who understood the subject will pro
baby agree, and do not perceive the necessity o.
estifying to it. Undoubtedly he meant by these
patents to secure to himself the right to such goods
as are in said patents particularly described. The
affidavit then goes on to say that che intend
ed to grant, nor did he grant to Horace H. Day
under the agreements made in 1S46, right to any
other than such patented goods" "Nor did he
grant" It He swears to the legal effect of deed
he takes it upon his conscience, under the solemny
Of oath, to declare that that deed did not pass
that right to Mr.. Day. He goes on to say: "There
then was, and there ever since has been a clear
and well understood distinction between such
SHRED goods and woven, braided knitted or elastic
goods" have no doubt Of that. have no doubt
there was clear and well understood distinction
between such slirred goods made under his patent,
and woven, braided knitted or elastic goods; and
the clear and well understood distinction was that
ole was made with vulcanized rubber, and could be
made that way, to wit: his shirred goods;
and the other was not made with vulcanized
rubber, and could not be so made, ac-
cording to the knowledge of anybody in
the trade at that time, by any known method, al
though Goodyear secretly knew Of it. Does he
point out here what distinction there was between
his and other shrred goods? Does he say these
other species of goods, woven, braided, knitted,
and corrugated by strands Of rubber and 80 made
elastic, were not shirred goods, nor known as
as such to him or others? Not at all On the other
hand, by implication he admits they were; because
he says, there clear and well understood dis
tinction between such shirred goods and woven,
braided, knitted or elastic goods. "This," he says
was known to the manufacturers and the trade,
including said Horace H. Day." Ibelieve it was
known to Mr.. Day that there was clear and well
understood distinction between such different spe-
cies Of shirred goods, between such shirred goods
and other shirred goods; and the distinction was
what have stated.
A great deal was said yesterday, based upon the
fact that Mr.. Day has not made an affidavit to
tradct the positions taken in this affidavit Of Good
year, and other positions taken in other afida-
Wits in support Of this same view. | do
not know have no means of knowing. what Mr.