Superior Court of Judicature of New Hampshire.
TIMOTHY HOLDEN
v.
JOSEPH A. CURTIS and another.
May Term, 1819.
*1 As a general
principle, the vendee of personal property, the title to which fails, may
recover back the consideration which was paid for it.
But if there had been a
former recovery against him of the consideration, the money, thus paid under a
judgment, cannot be recovered back by assumpsit for money had and received.
The assignment of a
patent, though not recorded in the office of the secretary of the United
States, is still valid, except as against creditors and subsequent purchasers
of the patentee.
Nor is the patent itself
void, because the elementary principles of it were previously known and used,
unless those principles were applied in a similar form and proportion to
similar purposes.
If the patent prove to be
void, the purchaser of it cannot recover back a part of the consideration,
which was paid without suit, provided he has derived benefits from the purchase, and the
communications which accompanied it. (Semble.)
THIS was assumpsit for
money had and received.
The cause was tried here,
November term, 1818; when it appeared in evidence, that the defendants, in
December, 1812, conveyed to the plaintiff a patent right to purify all kinds of
spirit; that in the conveyance the patent was recited as having been originally
taken out by Vester & Pease, in 1812; and that the use of it, within
certain limits, had been assigned to the defendants by the patentees.
The consideration for the
conveyance to the plaintiff was originally secured by two promissory notes,
executed by him to the defendants. On one of these, $66,67 was paid in June,
1813, without any suit; but the residue was not paid till recently, and after
an action had been brought, and judgment recovered against the plaintiff for
the amount.
It also appeared, that the
assignment from Vester & Pease had never been recorded in the office
of the secretary of the United States, and that some circumstantial variations
existed between the patent itself and the description of it in the conveyance
to the plaintiff. There was contradictory testimony as to the fact, whether the
principles of the patent had been known and used before A. D. 1812; but there
seemed not much doubt, that the benefits derived from this mode of purifying
spirit were very considerable.
It was thought advisable, however, not to submit the testimony on
these two last points to the jury, until their bearing was further examined;
for that purpose, and for consideration of the other points in the case, a
verdict was taken by consent for the defendants, subject to be set aside, or
judgment entered upon it, as might afterwards be found proper.
Headnotes
Swan & Olcott,
counsel for the plaintiff.
J. Smith, for the
defendants.
WOODBURY, J.
*2 There is no
doubt as to the general principle, that he, who has received money, and is ex
oequo et bono not authorized to retain it, may be made to refund it in an
action of assumpsit. [FN(1.)]
FN(1). 1 D. & E. 732, Shove vs. Webb.-4 Bos. and Pul.
260 note. (Day's Edition.)
The person who receives
money for the sale of personal property, when the title was in a third person,
comes within this general principle. 2 D. & E. 369.--1 D. & E. 732.--6 do.
606.--2 East 241.--2 Es. Ca. 640.--Peak's Ca. 94, 109.
We say personal
property; for, in sales of real estate, as the title appears on record, and may
be secured by covenants, the rule is otherwise. Doug. 654, Bree vs.
Holbeck.--1 Mass. Rep. 65, Gates et al. vs. Winslow. [FNa1]
FNa1. Greenleaf 352,
(semb.) Lloyd vs. Jewell et al.
And the cases, which by
some have been thought contradictory, are merely instances where the
instruments of conveyance have been considered void by some defect in form, or
by being made in pursuance of a prior agreement, which, with all done under it,
is on failure of title, held to be rescinded. Burr. 2639.--3 Bos.
& Pull. 162, 181.--1 Es. Ca. 150.--2 do. 639.--7 Mass.
Rep. 32, Fowler vs. Shearer.
But the sale of patents,
though required to be recorded, [FN(1)] is
the sale of mere personal property; and hence, on a failure of title to the
patent, the money received for it by the vendor, cannot be retained, unless
some equitable circumstance, or some technical rule interpose, to make the case
an exception to the general principle.
FN(1). Act of
Congress, Feb. 21, 1793.
In the present case, the
title to the patent is supposed to have failed, because the assignment of it
from the original patentees was never recorded; and the decision in Bliss
and others vs. Negus, [FN(2)]
countenances this position.
But the act of Congress
does not, in direct terms, declare the assignment void if unrecorded. Its
language resembles that in most statutes, concerning the record of deeds of
real estate; and, in relation to these last, it is every where held, that,
without recording, the title passes between the parties, and is void only as to
creditors, and those who afterwards purchase from the grantor without notice.
We see no reason against
an adoption of the same rule under the act of Congress. [FN(3)]
FN(3). 6 Cranch
324.-12 Mass. Rep. 323, 324.
It was argued, also, that
the title to the patent failed; because differences existed between the patent
itself, and the description of it in the conveyance to the plaintiff. But it was admitted, that
those differences were only circumstantial. Hence the patent was sufficiently
identified, and no presumption arose, that the variations were intended as
fraudulent affirmations, in respect to the character of the patent. 1 N. H.
Rep. 349, Case vs. Morey.--2 Barn. & Ald. 345, Rex vs.
Wheeler.
*3 It was
contended, likewise, that the principles of the patent had before been used and
known; and hence, that the patent right failed under the express provisions of
the act of Congress, passed April 17th, 1800.
It is doubtless true, that
the patent, under such circumstances, fails, though the prior use of its
principles, may not have been known to the patentee. [FN(1)] Because the public is not benefitted by a patent, for what
was before ""known and used;" and the profits of what was before
"known and used," should not be monopolized by one individual.
FN(1). 3 Wheaton
465.--1 Mason 447.
But the word
"principles," as employed in the act of Congress, does not mean
merely the elementary principles of bodies, as earths, alkalies, &c.; or of
mechanic power, as the wheel, lever, screw, &c.; or of power obtained by
water, fire, air, &c. Because scarcely any machine, medicine or utensil,
could be constructed or operate, without the aid of some such principles.
It means, not only elementary principles, but the application of
them. 1 N H. Rep. 348.--2 Hen. Bl. 463.--3 Wheaton (Apx.
15.)--1 Mason 447.--2 Gallison 51.--8 D. & E. 95, Hornblower
vs. Bolton.
There must be the
discovery of new principles, or the employment of old ones in a new proportion,
or in a new process, or to a new purpose. That is, to use the language of the
great renovator of the arts and sciences, there must be "an invention of
further means, to indow the condition and life of man with new powers or
works." 2 Lord Bacon's Works, 199, (Shaw's edition.)
Under these views of the
true construction of the Act of Congress, the evidence as to the originality of
this patent, can hereafter be submitted to a jury, unless, on the other
testimony in the case, the defendants shall appear in all events to be
discharged. We are inclined to think that they are so discharged. For on a
supposition, that the patent was not original, and that the right has thus
failed, yet it is to be remembered, that the plaintiff, when sued for the
consideration, enjoyed an opportunity to prove this fact, and to defeat a
recovery of the very money he now seeks to regain.
It does not appear, that
the notes had been negotiated, or the defence precluded by any other
circumstance. Hence, if it was not made, the omission arose from such accident
as would entitle him to a new trial, or from such ignorance and neglect as are
irremediable.
The point in issue in both
actions is identically the same, that is, the right of the defendants to the consideration money
for the patent; and it is well settled, that no question, unless by review, new
trial, or appeal, can be twice litigated between the same parties. 1 N. H.
Rep. 33.--Whittemore vs. Whittemore, (ante.)--9 John. Rep.
233.--Parker vs. Colcord, (ante.)
*4 But if the
plaintiff, in his conveyance, had a covenant concerning the title of the patent,
he may still resort to a higher and distinct remedy on the covenant. [FN(1)]
FN(1). 7 D. & E.
568, Cowley vs. Dunlap.
Whether he could sustain a
special assumpsit on an implied warranty, if no covenant exists, is a question
which need not now be discussed. 1 N. H. Rep. 76, Robison et al. vs.
Crowninshield.
On the facts of this case,
a further question might arise as to the sum of $66,67; because that sum was paid previous to the institution of
any suit; and, therefore, does not fall within the reasons of the above
principle.
But, in Taylor vs.
Hare, (4 Bos. & Pul. 260) it was held, that though the title to
a patent failed, yet the purchaser could not recover back the consideration
paid, if any benefits were derived from the use of the patent, and the
communications which accompanied it.
We see no insuperable
objection to this rule, when the benefits were equivalent,
and the purchaser not liable for them to any prior patentee. How these facts
were in the present instance, has not been settled by the jury. Yet this
distinction as to the sum paid before suit not having been taken at the trial,
and the cause being still open to review, we shall render
Judgment on the
verdict.
N.H. 1819.
2 N.H. 61
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