Day v. Union India Rubber Company.

the appellant, and by Mr. Noyes for the appellees, upon which side there was also a brief by Mr. Staples.

Mr. Justice NELSON delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the southern district of New York.

The bill was filed in the court below by Day, as assignee of the patent of Edwin M. Chaffee, for a new improvement in preparing and applying India rubber to cloth, &c., dated the 31st August, 1836, and renewed for seven years from the 31st August, 1850, against the defendants, for an alleged infringement during the running of the renewed term.

The questions involved in the case are, substantially, the same as those presented and decided in the case of Hartshorn et al. v. Day, at the last term, and reported in 19 How., p. 211. That was an action at law, brought by the same plaintiff, upon this patent, against the defendants, who were licensees under Charles Goodyear, for the manufacture of India rubber boots and shoes. The defendants in the present case are licensees under Goodyear, for the manufacture of India rubber cloth for various purposes. In both cases, the right to manufacture the article rested upon the authority of Goodyear to grant the license, as derived from Chaffee, the patentee.

The court held, in the case of Hartshorn et al. v. Day, that under the agreement of the 5th September, 1850, between Chaffee, the patentee, and William Judson, the entire ownership in the patent, legal and equitable, passed to Judson, for the benefit of Goodyear and those holding rights under him, and on that ground decided in favor of the licensees.

Now, in this case the licenses under Goodyear to manufac ture cloth of the description claimed are as broad and ample as were those to the defendants in the case just mentioned. Goodyear became the sole owner of the patent of Chaffee as early as 28th June, 1844, and on the 18th July following gave a license to the Naugatuck India Rubber Company, to manufacture cloths, with certain exceptions, under all his patentsthose in which he was then interested or in which he might thereafter be interested, issued or to be issued-and, also, in all renewals of patents. He also gave a like extensive license, on the 28th of March, 1847, to W. E. & John Rider, for manufacturing of ships' letter and mail bags; and in February of the same year, a similar license to manufacture wearing apparel, &c., to Jonathan Trotter; and on the 1st July, 1848, one to Trotter and W. Rider & Brother, for the manufacture of army and navy equipments, sheet rubber, &c. All these various licenses afterwards became consolidated in the Union

Day v. Union India Rubber Company.

India Rubber Company, the defendants in this suit, and present therefore a complete defence to the suit, if Goodyear was the true owner of the Chaffee renewed patent. And this, as we have seen, has already been held in the case of Hartshorn v. Day.

Besides, in the agreement of the 5th September, 1850, between Chaffee and Judson, it is expressly stated that the patent was conveyed to the latter, to secure it for the benefit of Goodyear and those holding rights to use it under and in connection with his licenses; and Judson was also directed to hold it for their benefit.

The license of the defendants therefore, in this case, stands upon two grounds, either of which would seem to constitute a sufficient defence to the suit for infringement: First, authority from Goodyear, the owner of the renewed term of the patent; and second, the express recognition of Chaffee, the patentee, of the right of these parties as licensees of Goodyear to use the improvement. And we may add to these grounds of defence, that upon the interpretation of the court in the case of Hartshorn v. Day, of the several agreements relating to this patent, and especially that of 5th September, 1850, Day took no interest in it under the assignment of Chaffee of 1st July, 1853, he having previous to that time parted with all his interest for the benefit of Goodyear and his licensees.

Some evidence has been given in the case for the purpose of showing that the agreement of 5th September was not sealed at the time of its execution, and that the seal must have been annexed afterwards without any authority. But it is too slight and uncertain to be entitled to any weight.

It has also been insisted that this instrument was procured by fraud from Chaffee, through the contrivance of Judson. But the evidence relied on is very general and unsatisfactory; and, besides, it is too late to set up any such ground of defence after Chaffee himself has carried the agreement into execution, and acted under it, receiving its benefits for some three years. And what is remarkable on this point, he is the chief witness to make out the alleged fraud.

It has also been urged that the licensees have not contributed to the fund for paying the expenses of the renewal of the patent. But this is a matter in which Chaffee had no interest. He has taken the indemnity of Judson against these expenses. The licensees were never liable to him for them.

Without pursuing the examination further, we are entirely satisfied, for the reasons above stated, that the decree below is right, and should be affirmed.

Payne et al. v. Niles et al.

JACOB U. PAYNE, J. P. HARRISON, AND GEORGE W. HUNTINGDON, COMMERCIAL PARTNERS, under THE NAME AND FIRM OF PAYNE & HARRISON, INTERVENORS, PLAINTIFFS IN ERROR, v. JONATHAN J. NILES, JAMES M. NILES, LEANDER H. COREY, AND STEPHEN Allen, partneRS, DOING BUSINESS UNDER THE NAME AND STYLE OF NILES & Co., PLAINTIFFS, AND WILLIAM A. BROADWELL, SYNDIC OF ANdrew Knox, DECEASED, DEFEND

ANT.

No one can bring up, as plaintiff in a writ of error, the judgment of an inferior court to a superior one, unless he was a party to the judgment in the court below; nor can any one be made a defendant in the writ of error who was not a party to the judgment in the inferior court.

Therefore, where there was a judgment in the court below, and certain persons intervened, whose petition for intervention was dismissed, they have no right to sue out a writ of error from the judgment to which they were not parties; nor was any process, upon their intervention, served upon the original defendant.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

As originally brought, the suit was Niles & Co. v. Knox, and the circumstances which led to the change of title are stated in the opinion of the court.

On the 8th of February, 1856, the Circuit Court dismissed the intervention, with costs, when the intervenors sued out a writ of error, and brought the case up to this court.

It was argued by Mr. Chilton for the plaintiffs in error, and by Mr. Benjamin for the defendant. There were also briefs of Mr. Chilton and Mr. Davidge for the plaintiffs in error, and Mr. Pike for the defendant.

Mr. Benjamin thus noticed the point upon which the decision of the court turned:

1st. The writ of error must be dismissed. There is no such record as is required by the eleventh and thirty-first rules of the court. There is nothing but a petition of intervention, and an agreed statement of facts without any date, but which seems to have been made up after the new trial was refused; no answer, no pleadings, no bill of exceptions. (Keene v. Whitaker, 13 Pet., 459; Curtis v. Petitpain, 18 How., 110.)

2d. The judgment appealed from is one of which this court has no jurisdiction; the writ ought to be dismissed. (Bayard v. Lombard, 9 How., 550; Curtis v. Petitpain, 18 How., 110.)

Mr. Chief Justice TANEY delivered the opinion of the

court.

Payne et al. v. Niles et al.

This case is brought here by a writ of error directed to the Circuit Court for the eastern district of Louisiana.

It appears by the transcript, that Niles & Co., citizens of Ohio, brought suit in the Circuit Court against Andrew Knox, of Louisiana, for the price of certain machinery furnished to the latter for the use of his plantation. They claimed the vendor's privilege on the articles sold, which were still in possession of the vendee. The suit was instituted on the 21st of February, 1855, and on the 17th of April, 1855, a decree was rendered in favor of the plaintiff for two thousand six hundred and eighty-six dollars and sixty-nine cents, with interest, and with the vendor's privilege on the machinery.

On the 19th of March, 1855, Payne & Harrison, the plaintiffs in error, citizens of Louisiana, filed in the Circuit Court a petition of intervention in the above-mentioned suit, alleging that Knox was indebted to them in a large sum of money, for which they held a mortgage on the plantation on which the machinery in question was erected; and claiming that their right by virtue of this mortgage was superior to the vendor's lien of Niles & Co., and prayed a citation for Niles & Co.; but did not pray for any process against Knox. Nor does the record show that he ever voluntarily appeared to or answered this petition. And on the 8th of February, 1856, it was by the judgment of the Circuit Court finally dismissed, with

costs.

A statement of facts was afterwards agreed on between the counsel for Niles & Co. and the counsel for Payne & Harrison, which is set forth in the transcript, but it does not appear that Knox assented to it, or indeed had any knowledge of it.

Afterwards, on the 18th of February, 1856, the counsel for Payne & Harrison represented to the court that Knox had died after the suit on their intervention was instituted, and that no one had qualified as his executor or administrator, and that there was no representative of his estate, except William A. Broadwell, of New Orleans, who was the duly-appointed and qualified syndic of said Knox; and thereupon moved the court that the said Broadwell be made a party to the cause, which was accordingly ordered by the court, and a copy of the order served on him by the marshal on the succeeding day; and on the day of the service, this writ of error was sued out by the intervenors, Payne & Harrison.

The writ recites that a judgment was rendered in a case between Niles & Co., plaintiffs, and Broadwell, syndic of Knox, defendant, and Payne & Harrison, intervenors in said suit, who were plaintiffs, both as against Niles & Co. and Broadwell, syndic of Knox; and citations were issued and served on Niles &

McGavock v. Woodlief.

Co. and Broadwell, to appear in this court upon the return of the writ of error.

It will be seen, from this statement, that Payne & Harrison were not parties to the judgment in the suit of Niles & Co. v. Knox. The only judgment in the Circuit Court to which they were parties, was the judgment dismissing their petition of intervention; and Knox was not made a party defendant in that proceeding, nor was he a party to that judgment. The order of the court to make Broadwell, his syndic, a party, was passed after this judgment was rendered.

Writs of error to remove the judgment of an inferior tribunal to this court are, under the acts of Congress, governed by the principles and usages of the common law. And it is very well settled in all common-law courts, that no one can bring up, as plaintiff in a writ of error, the judgment of an inferior court to a superior one, unless he was a party to the judgment in the court below; nor can any one be made a defendant in the writ of error, who was not a party to the judgment in the inferior court. Payne & Harrison, therefore, have no right to sue out a writ of error upon the judgment in the suit between Niles & Co. and Knox, to which they were not a party, nor can they make Knox or his representative a defendant in a writ of error brought upon the judgment on the petition of intervention, to which neither Knox nor Broadwell, his syndic, was a party.

This writ of error attempts to do both, and is therefore not warranted by law. It cannot bring the judgments referred to, or either of them, before this court, and must therefore be dismissed, with costs.

JOHN MCGAVOCK, PLAINTIFF IN Error, v. Peter W. WOODLIEF. 20h 221

L-ed 884 22h 73

A broker who negotiates the sale of an estate is not entitled to his commission 18f 543 until he finds a purchaser in a situation and ready and willing to complete the purchase on the terms agreed upon between the broker and the vendor. Where the judge files the statement of facts after the trial, nunc pro tunc, it is reasonable to presume that he had been requested to do so at the trial.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

The case is stated in the opinion of the court.

It was argued by Mr. Benjamin for the plaintiff in error. and Mr. Taylor for the defendant.