Gibson v. Barnard

10 F. Cas. 307, 1 Blatchf. 388

• Court: U.S. Circuit Court for the District of Northern New York
• Decided: October 15, 1848
• Status: Published

Opinion

NELSON, Circuit Justice.

It is quite clear that down to the time of the grant by Wilson to the defendants on the 5th of December, 1S45, the plaintiff possessed the exclusive right and title to tire patent during the extension, for the county of Albany, with the exception of the two rights in the town of Watervliet, namely, the right to use one machine, claimed by Rousseau & Easton as accruing to them by virtue of the extension and of their having had the right to usevit during the original term, and more effectually secured to them.by the administrator, and the right sold and assigned by Gibson to the administrator, and by him to Rousseau & Easton. It is clear, also, that Wilson possessed no interest in the extended patent for the town of Watervliet, except as respected the two machines and the interest therein, which he derived by the assignment from the administrator of the 12th of August, 1844, the right to those machines having before been sold by the administrator to Rousseau & Easton, and they being in the actual use and enjoyment of them. Wilson, therefore, could grant his interest in those two rights, whatever it might be, and nothing more, and this was all that could pass to the defendants under the agreement of the 5th of December, 1S45. The terms of that agreement also establish the fact that Wilson intended to sell, and the defendants to .purchase, his interest in those two rights.

The failure of Rousseau & Easton to fulfil-their agreement of purchase with the administrator, the interest in which belonged to Wilson, did not of itself operate to annul and cancel the agreement. It was a contract partly executed. Two hundred dollars of the-purchase money had been paid and promissory notes given for the residue. The machines were in operation. And, although a court of equity might have decreed a surrender of the contract, and its cancellation on terms, yet, until then, Rousseau & Easton must be deemed to have been in the lawful. use and enjoyment of the two rights in Wa-tervliet under the extended patent.

rXOTE. For other cases involving this patent. see note to Bicknell v. Todd, Case No. 1,389. [An appeal was taken by the defendants, hut was dismissed by the supreme court, Mr. Justice McClain delivering the opinion, upon the ground that the appeal was not from the final decree; it appearing that the decree of the circuit court had referred the report to a master to ascertain the amount of damages, and that in the meantime the bill had not been dismissed, nor a decree rendered for costs. 7 How. (4S U. S.) 630.]

Even assuming the contract to have been annulled and the parties to have been remitted to their original rights, it is clear that Wilson had power to grant to the defendants but one of the rights, as the other was secured to Rousseau & Easton by the decision of the supreme court in the suit between Wilson and them. I am of opinion, therefore, that the defendants have failed to establish any right to run the machines in question, and that the plaintiff is entitled to a decree for a perpetual injunction.