Selden v. Pringle

17 Barb. 458, 1854 N.Y. App. Div. LEXIS 2

• Court: New York Supreme Court
• Decided: March 6, 1854
• Status: Published

Opinion

By the Court, Welles, J.

The first position now taken by the appellant is, that the respondent did not establish upon the trial any title to the note upon which the action is brought, for the reason that the obtaining a patent securing the right to use the machine, and a determination of the suit of Tathams v. Selden and others, mentioned in the contract, were conditions precedent to the vesting of such title, and that neither of these conditions was shown to have been performed; but that on the contrary it was proved as a matter of fact, that they were not performed.

By the contract, Samuel L. Selden sold to Robert W. Lowber the one equal undivided half of a certain machine for making lead pipe by hydrostatic pressure, together with the steam engine, boiler, and all other apparatus connected with the-said machine or with the business of manufacturing pipe therewith; and also one half of the patent to be obtained for the said machine; for which Lowber agreed to pay the sum of $4000, and interest from the date of the contract, in manner following, to wit: $1500 to be secured by a good approved indorsed note, payable in fifteen months, with interest from the date of the contract, and the remaining $2500 and interest in bonds and mortgages, as in the contract specified. Then the conditions upon which the agreement is made to depend are introduced; which aré, 1st, that in case the application then about to be made for a patent for the said machine, including the process for tinning the pipe, should fail, and no patent should be obtained for the same, securing to said Lowber the right to use the machine as then constructed; or 2d, that if the suit then pending in the circuit court of the U. S. for the southern district of New-York in favor of the Messrs. Tatham against the said Selden and others, should be finally determined against the defendants therein: if either of these events happen, that is, if the application for the patent should fail, &c. or if the suit mentioned should be determined against the defendants therein, then the said bargain and sale should be void.

Were these conditions precedent or subsequent to the payment of the note ? “ By the word condition, is usually understood some quality annexed to real estate, by virtue of which it paay be defeated, enlarged or created, upon an uncertain event; also qualities annexed to personal contracts and agreements, are? frequently called conditions, and these must be interpreted according to the real intention of the parties.” (Bac. Abr., Conditions.) The learning in the books relates principally to the former kind. Conditions of the latter class rest upon the same general reasoning with those of the former, “ Conditions precedent are such as must be punctually performed before the estate can vest; but on a condition subsequent the estate is immediately executed; yet the continuance of the estate depends upon the breach or performance of the condition. (Bac. Abr. Conditions, I.) “ Where an estate or interest passed or vested immediately in the plaintiff, and was to be defeated by a condition subsequent or matter ex post facto, whether in the affirmative or negative, or to be performed by the plaintiff or defendant,, or by any other person, performance of that matter need not be averred; as, if a grant of an annuity should be till the plaintiff should be advanced to a benefice, he need not say that he is not yet advanced.” (1 Chit. Plead.p. 310, Phil. ed. of 1825. Id. Springf. ed. of 1844, p. 321.) There are no precise technical words required to make a stipulation precedent or subsequent. The same words may operate as either the one or the other, according to the nature of the transaction and as evincing the intention of the parties. They are to be construed either precedent or subsequent, according to such intention, to be collected from the instrument. (Hotham v. East India Co., 1 T. R. 638-to 645. Porter v. Sheppard, 6 Id. 665 to 661.)

In view of the foregoing general rules we will examine the conditions of the contract in this case. And first, the one respecting obtaining the patent. In this connection it is important to bear in mind the language of the contract in this respect: it is, “ that in case the application about to be made for a patent for said machine, including the process of tinning the pipe, shall fail, and no patent shall be obtained for the same securing to said Lowber the right to use the machine as now constructed,” &c. In another place it is provided that Lowber shall pay the expenses of procuring the patent, and in the supplement at the end of the principal contract, it is further provided that the said patent shall be taken out in the name of Lowber alone, and in case the Tatham suit should be decided against said Selden, then he, Lowber, was bound to convey one half of it to Selden. By the terms of the contract, $1500 of the purchase money of the machine, &c. was to be paid in fifteen months. Ho time is .specified in which the patent is to be obtained. We have no right to assume that it was to be obtained within that period. The application was not yet then made; it was about to be made. Lowber was to pay the expense, and it was to be taken out in his name and for his benefit. He was to be the principal actor. It would depend upon him, when the application would in fact be made, if made at all; and if he refused or neglected to pay the expense, it would never be obtained, unless Selden, or some one else who was under no obligation to do so, should defray such expens e. If the application should be made without unnecessary delay, and prosecuted in good faith, and the expenses duly paid, it still might not be obtained in fifteen months. If the application should not be made, or being made should fail, through Lowber’s neglect, it would be absurd to say it would work a forfeiture of the plaintiff’s claim to recover the purchase money of the machine.

It is strictly correct, therefore, to say that this fifteen hundred dollars was to be paid before the patent was, by the contract, required to be obtained; or, which amounts to the same thing só far as this question is concerned, that there was no obligation resting upon Selden to procure the patent to be obtained before or by the time when the fifteen hundred dollar note would mature. Suppose the contract had required the payment of the fifteen hundred dollars in tén days, with the same conditions in other respect's as in fact it contains; in that case it would be next to impossible to obtain a patent on an application thereafter to b’e made, in the period of ten days ; and yet I know of no rule by which to determine whether the condition was precedent or subsequent, which would not apply equally to both cases. One of the rules mentioned by Mr. Chitty on this subject is in the following words: “ Where a day was -appointed for payment by the defendant, of money or part of it, or for his doing any other act, and such day .was to happen before the thing which was thé consideration of the defendant’s contract was to be performed, an action may be brought for the money or for not doing such other act, before performance by the plaintiff.” (1 Ch. Pl. 313, Phil, ed. of 1825.) In Cunningham v. Morrell, (10 John. R. 203,) Kent, Ch. J., in delivering the opinion of the court, says : “ It is true that ifj by the terms of the contract, the money is to be paid by a day certain, and which is to happen before the performance of the Service, or by a day certain, and there is no day certain for the performance, the performance is not a Condition precedent; and the party may sue for the money without averring or showing performance.” This is unquestionably good law, and seems to me to dispose of the question under immediate consideration. I am therefore clearly of the opinion that the com tract in relation to obtaining the patent, cannot be regarded as a condition precedent to Selden’s right to the money intended to be secured by the note in question.

In the second place, it is equally clear that' the provision of the contract respecting the determination of the suit of Tathams against Selden and others, was not a condition precedent. This seems to me too plain to admit of argument. That provision is, that if the suit shall finally be determined against the defendants therein, until the suit is determined, the condition most clearly cannot attach. Most of the foregoing reasoning, upon the other condition, applies with equal force to this. If either of these conditions had in fact happened before the note became' due, no action could be maintained upon it by the plaintiff of Samuel L. Selden, and the provision that Ke'dfield should hold it' with the other securities to be delivered to him, was doubtless to prevent their being transferred to a bona fide purchaser before maturity.

The fact that the plaintiff has not the actual possession of the note, does not affect his right to recover upon it: It is sufficient if he has the right to the money due Upon it. (Smith v. McClure, 5 East, 476. 2 Saund. 47, a. note (1).)

Even if the condition first mentioned was intended by the parties to be precedent to the payment of the note, the plaintiff Is still, so far as that is concerned, entitled to recover. The case shows that a patent has been obtained on the application of Lowber, which he still holds. It is dated March 12th, 1845, and is granted to him as the assignee of Henry M. Ward, Samuel L. Selden and Elisha Y. Kneeland, the inventors, and grants to him the exclusive right of making, using and vending, <fcc¡, a certain improvement, a description whereof is contained in the schedule annexed to the patent and made a part of it, which by reference to the schedule appears to be “ a new and useful improvement in the machinery used in the manufacture of lead pipe, and in effecting the tinning thereof internally,” &c. The schedule then proceeds with a long and minute description and specification of the said improvement, which, for the purpose of the questions involved in the case, it is not necessary to examine. It is sufficient to remark that until the contrary appears, it is to be presumed that this was the patent contemplated by the contract: Certainly nothing does appear to .the contrary, and that condition , is therefore to be deemed as being fulfilled. With respect to the other condition, (and the same may be said with regard to both,) it was not a condition upon which the contract should take effect, but it was one, upon the happening of which, the contract of sale should fail. Unless, therefore, the contract of sale has failed; by reason of the determination of the Tatham suit adversely to the defendants therein, the contract is, of necessity, in force; So far as this condition iá concerned; for it does not appear that the suit has been determined in any way. If it has been, it is an affirmative fact which the defendant was bound to show: In the absence of evidence, the presumption is that it has not been determined, or. that the determination was such as not to be of any service to the defendant in the present action. So far from the contract of sale having failed, the bill of sale shows that Lowber has received the full benefit of it, and has sold the machine.

It only remains to consider, briefly, the offers of evidence which were overruled at the circuit.

1. The defendant asked Lowber, while on the stand as a witness; if he accepted the patent proved, as a substitute for the one contemplated by the contract. This was objected to, and excluded by the court. If I am correct in the conclusion to which I have arrived, that the provision in relation to the patent •was not a condition precedent to the payment of the purchase money, it was immaterial for what reason Lowber accepted the patent which was issued, or whether he received it as a substitute for the one contemplated by the contract. Besides, the question assumed that the patent issued was not such as was contemplated. Such assumption was unauthorized by any evidence which had been given. Enough has appeared to raise the presumption that it was such as the contract contemplated, at least enough to estop Lowber from disputing it. The only question in relation to the patent issued, which in this respect could be material, was whether it was, in point of fact, such as the contract contemplated. That question could not be affected by showing how or why he received it. And if it could be thus affected, the offer was not broad enough. It did not propose to establish any material fact. An answer to the question must necessarily have been in the affirmative or negative. If the former, it could not help the defendant. If the latter, it would have proved nothing, as it would not show why he received the patent.

2. Lowber’s offer to rescind was merely idle. It was previous to the application for the patent proved, and required S. L. Selden not only to purchase back what he had sold, but also to purchase the other half of the machine, which it does not appear he had ever owned, and to pay Lowber what the latter had paid Freeman Clark for it. There is not the shadow of a reason to show that- Selden was under any obligation to accept such offer, or to rescind'the contract in any way.

3. The offer to prove the representation of Samuel L. Selden, that the machine for making lead pipe was not an infringement upon the patent of the Tathams, and that the patent proved was taken in consequence of such representation, was properly overruled on the plaintiff’s objection. Admitting that such representation was made before the assignment of the contract to the plaintiff, and at a time when the plaintiff could be affected, if at all, by any representations of S. L. Selden, those offered to be proved, and the consequent action of Lowber thereon, instead of showing that the patent was not received as a substitute for another, would, if proved, have tended to establish that fact, and thus have strengthened the plaintiff’s ease. The defendant has no right to complain that the evidence was not received. It came entirely short of an offer to prove a fraud.

[Monroe General Term, March 6, 1854.

Welles, Johnson and T. R. Strong, Justices.]

4. The defendant’s offer to prove the recovery of a judgment in favor of the Tathams against Lowber and his vendees, was also properly overruled. It was not a suit between the parties to this action, nor in which either Samuel L. Selden or the plaintiff was a party or privy. On no principle of which I am aware, was the evidence admissible, without giving the party sought to be affected by it, notice of the pendency of the suit, in time to defend it, or an opportunity to furnish the necessary evidence for that purpose.

In my opinion the judgment at the circuit should be affirmed.

Judgment affirmed.