Redfierd, Ch. J.
I. In regard to the jurisdiction of the court being defeated, because the subject matter of the action concerns the use of an exclusive patent right, we think there has not hitherto been much question. That is certainly so in this State. Actions upon such contracts have been common in the State courts for a great number of years, and we have not known any question to be raised in regard to the jurisdiction of these courts. And as the.action does not neeessarily involve any question in regard to the validity of any patent, it would seem that it could not be regarded as coming within the statute of the United States defining the exclusive jurisdiction of the circuit courts upon that subject. If any question in regard to the validity of the patents arises in this action, it is only incidentally and by way of defence, which could not be allowed, upon any fair principle of construction, to defeat the action.
II. In regard to the proof of those contracts, in relation to the transfer of the patent, which were witnessed, we think the practice in this State, from a very early day, has conformed, to the rule adopted in the trial of this cause. The evidence of the absence of the witnesses might have been more satisfactory, but that is a question chiefly within the discretion of the court before whom the trial is had. If there is testimony tending to show the fact, and the question seems to have been decided upon proper grounds and upon the weight of the evidence, it has not been considered that a court of error could revise the decision.
The only serious question which seems to be raised upon this portion of the decision below is, that the court resorted to the deed to determine this preliminary question, before the deed was [175]*175proved. But we think this is, to some extent; always done in all jury trials, and must be done from necessity. Evidence is received and rejected in jury trials throughout very much upon hypothesis.
And it is impossible not to feel that when a writing is presented which purports to have been executed in the State, and its execution to have been witnessed, the question of producing the witnesses will wear a very different aspect from what it will where the paper professes to have been executed in some remote State or country. And in the one case, much less proof is required of the absence of the witnesses than in the other. This is alluded to by Chief Justice Shaw, in Valentine v. Piper, 22 Pick. 85, as a sound distinction; and it seems to us the learned Judge is not without reason in his suggestion. There was certainly some evidence in this ease beyond these facts, to show the probable absence of the witnesses., as that the plaintiff had never known of their being in the State. This is the only kind of evidence which could have been adduced short of tracing the subsequent history of the witnesses, and their present abode, if living. This undoubtedly would be far more satisfactory than any other proof, but we are not prepared to say that it was indispensable.
As to the omission to prove the signature of the witnesses, it is no doubt true that the English rule requires it. But it seems to us not important in any case where the attestation of the witness is not required to the operative effect of the contract. This view is very clearly maintained in the case of Valentine v. Piper, and it seems to us altogether a sound one.
III. The conveyance of the patent by James A. Stevens, with the written assent of F. B. Stevens, in whom the title then was, if in the form of a deed, must, upon. every principle, be equally effective with a conveyance directly from F. B. Stevens,
And if the conveyance from F. B. to James A. Stevens, is regarded as containing no express warranty of title, there is always in such cases an implied warranty in regard to the conveyance of personalty, unless it appear to be the vendor’s title, and not the thing itself, which is intended to have been conveyed. So that the subsequently acquired title will inure-to the benefit of the vendee, even if it did not pass in the first instance by virtue of the estoppel.
[176]*176IV. The evidence that the invention was useful, at the time it was received, seems to have been competent evidence to prove the issue upon a quanlmn meruit. But as the case went to the jury finally, upon the special count, it probably can not he said to have been competent evidence upon the questions submitted. And if the jury were directed to take it into account in determining the question whether such a contract did exist between the parties, it would be error. For no question was made in the case in regard to the validity of the patent, and it would not therefore be requisite for the plaintiff to show that the invention was useful.
The patent itself is prima facie evidence of all facts upon which it is founded, and requires no support until impeached or attempted to be impeached.
■And it certainly could not be requisite to show the invention valuable, in order to recover upon a contract for the sale of its use, or the sale of the use of machines manufactured under it. This is the same question, as it seems to us, in another form. The fact of the thing being secured by letters patent is prima facie evidence of it being valuable, and it will sustain the sale or leasing of the right, and more especially that of the machines. But were the jury directed to consider this evidence upon the issue submitted? It seems to us that although not, in terms, directed to consider it from the recitation of it, in connection with submitting the question of the special contract to the jury, they might have inferred that it was regarded by the Judge as having some tendency to prove the issue. But we still apprehend that the judge really had no such opinion, or any purpose of having the jury so understand him. He meant to be understood, probably, that the plaintiff had an equitable claim upon the defendant for .compensation. It is certain the testimony referred to tended to show that, but not to show a special contract to pay, as charged in the declaration. We could ‘not then grant a new trial upon this ground, without giving the charge an interpretation different from that intended by the judge. This is sometimes done, and properly enough no doubt, where there is reason to apprehend the jury may have mistaken the purport of the instructions, and thus have been misled in an important particular materially affecting the merits of a trial.
[177]*177But where it is merely conjectural whether any misapprehension has occurred in the minds of the jury, and especially where the matter is of such slight importance to the merits of the case, as this certainly must have been known to be by the jury even, upon the particular issue submitted, we should not be prepared to direct a new trial, because we found the jury might have misapprehended the judge in an indifferent matter, A mere formal error should be very clearly established before a court of error could justly be expected to reverse the judgment for that cause. We should not, therefore, feel justified in granting a new trial upon this ground, unless it appeared the court were requested to give the jury specific instructions upon the very point. The request to charge the jury, that the mere use of the machines had no tendency to prove the special contract alleged, does not specifically point to this particular evidence, although it is very nearly associated with it, undoubtedly.
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Redfierd, Ch. J.
I. In regard to the jurisdiction of the court being defeated, because the subject matter of the action concerns the use of an exclusive patent right, we think there has not hitherto been much question. That is certainly so in this State. Actions upon such contracts have been common in the State courts for a great number of years, and we have not known any question to be raised in regard to the jurisdiction of these courts. And as the.action does not neeessarily involve any question in regard to the validity of any patent, it would seem that it could not be regarded as coming within the statute of the United States defining the exclusive jurisdiction of the circuit courts upon that subject. If any question in regard to the validity of the patents arises in this action, it is only incidentally and by way of defence, which could not be allowed, upon any fair principle of construction, to defeat the action.
II. In regard to the proof of those contracts, in relation to the transfer of the patent, which were witnessed, we think the practice in this State, from a very early day, has conformed, to the rule adopted in the trial of this cause. The evidence of the absence of the witnesses might have been more satisfactory, but that is a question chiefly within the discretion of the court before whom the trial is had. If there is testimony tending to show the fact, and the question seems to have been decided upon proper grounds and upon the weight of the evidence, it has not been considered that a court of error could revise the decision.
The only serious question which seems to be raised upon this portion of the decision below is, that the court resorted to the deed to determine this preliminary question, before the deed was [175]*175proved. But we think this is, to some extent; always done in all jury trials, and must be done from necessity. Evidence is received and rejected in jury trials throughout very much upon hypothesis.
And it is impossible not to feel that when a writing is presented which purports to have been executed in the State, and its execution to have been witnessed, the question of producing the witnesses will wear a very different aspect from what it will where the paper professes to have been executed in some remote State or country. And in the one case, much less proof is required of the absence of the witnesses than in the other. This is alluded to by Chief Justice Shaw, in Valentine v. Piper, 22 Pick. 85, as a sound distinction; and it seems to us the learned Judge is not without reason in his suggestion. There was certainly some evidence in this ease beyond these facts, to show the probable absence of the witnesses., as that the plaintiff had never known of their being in the State. This is the only kind of evidence which could have been adduced short of tracing the subsequent history of the witnesses, and their present abode, if living. This undoubtedly would be far more satisfactory than any other proof, but we are not prepared to say that it was indispensable.
As to the omission to prove the signature of the witnesses, it is no doubt true that the English rule requires it. But it seems to us not important in any case where the attestation of the witness is not required to the operative effect of the contract. This view is very clearly maintained in the case of Valentine v. Piper, and it seems to us altogether a sound one.
III. The conveyance of the patent by James A. Stevens, with the written assent of F. B. Stevens, in whom the title then was, if in the form of a deed, must, upon. every principle, be equally effective with a conveyance directly from F. B. Stevens,
And if the conveyance from F. B. to James A. Stevens, is regarded as containing no express warranty of title, there is always in such cases an implied warranty in regard to the conveyance of personalty, unless it appear to be the vendor’s title, and not the thing itself, which is intended to have been conveyed. So that the subsequently acquired title will inure-to the benefit of the vendee, even if it did not pass in the first instance by virtue of the estoppel.
[176]*176IV. The evidence that the invention was useful, at the time it was received, seems to have been competent evidence to prove the issue upon a quanlmn meruit. But as the case went to the jury finally, upon the special count, it probably can not he said to have been competent evidence upon the questions submitted. And if the jury were directed to take it into account in determining the question whether such a contract did exist between the parties, it would be error. For no question was made in the case in regard to the validity of the patent, and it would not therefore be requisite for the plaintiff to show that the invention was useful.
The patent itself is prima facie evidence of all facts upon which it is founded, and requires no support until impeached or attempted to be impeached.
■And it certainly could not be requisite to show the invention valuable, in order to recover upon a contract for the sale of its use, or the sale of the use of machines manufactured under it. This is the same question, as it seems to us, in another form. The fact of the thing being secured by letters patent is prima facie evidence of it being valuable, and it will sustain the sale or leasing of the right, and more especially that of the machines. But were the jury directed to consider this evidence upon the issue submitted? It seems to us that although not, in terms, directed to consider it from the recitation of it, in connection with submitting the question of the special contract to the jury, they might have inferred that it was regarded by the Judge as having some tendency to prove the issue. But we still apprehend that the judge really had no such opinion, or any purpose of having the jury so understand him. He meant to be understood, probably, that the plaintiff had an equitable claim upon the defendant for .compensation. It is certain the testimony referred to tended to show that, but not to show a special contract to pay, as charged in the declaration. We could ‘not then grant a new trial upon this ground, without giving the charge an interpretation different from that intended by the judge. This is sometimes done, and properly enough no doubt, where there is reason to apprehend the jury may have mistaken the purport of the instructions, and thus have been misled in an important particular materially affecting the merits of a trial.
[177]*177But where it is merely conjectural whether any misapprehension has occurred in the minds of the jury, and especially where the matter is of such slight importance to the merits of the case, as this certainly must have been known to be by the jury even, upon the particular issue submitted, we should not be prepared to direct a new trial, because we found the jury might have misapprehended the judge in an indifferent matter, A mere formal error should be very clearly established before a court of error could justly be expected to reverse the judgment for that cause. We should not, therefore, feel justified in granting a new trial upon this ground, unless it appeared the court were requested to give the jury specific instructions upon the very point. The request to charge the jury, that the mere use of the machines had no tendency to prove the special contract alleged, does not specifically point to this particular evidence, although it is very nearly associated with it, undoubtedly.
But there is another point in the case more nearly affecting the merits, where it seems to us there is some difficulty in sustaining the decision to the full extent. We need not, therefore, farther discuss the last point, as we are satisfied the charge as understood by the judge, was well enough, and we do not feel satisfied it was misapprehended. by the jury. The question whether the defendants could so far repudiate the contract under which they agreed to use the patent and the machines, without ceasing such use, as not to be iiable for the after use according to the terms of the special contract, is one of more importance to the merits of the ease. This has been argued upon the analogy of leasing of real estate, or of contracts for use and occupation. /Till within a comparatively recent period, it was considered that a tenant could not, in any sense, repudiate his tenancy, even where it existed by parol merely, or from year to year; or that he could not do this without surrendering or abandoning the premises. But it is now settled otherwise in this State, and in the United States supreme court. The tenant, by distinct notice to his landlord that he will no longer hold the premises under him, has been regarded here as committing an absolute disseizin, and after that, as holding adverse to the landlord, and unless evicted before the term of- the statute of limitations expires, he will, by such adverse [178]*178possession, acquire title in his own right. In Willison v. Watkins, 3 Peters U. S. 48, Mr. Justice Baldwin says, “Had there been a formal lease for a term not then expired, the lessee forfeited it by this act of hostility; had it been a lease at will, from year to year, he was entitled to no notice to quit before an ejectment. The landlord’s action would be as against a trespasser, as much so as if no relation had ever existed between them.” This case was professedly followed in two cases in this State: Greeno v. Munson, 9 Vt. 37; Hall v. Dewey, 10 Vt. 593; and has been recognized in many others. It is undoubtedly a new doctrine, and adopted here from a regard to the difference in our land tenures, and in our civil and social relations and institutions in many respects, from those in England.
But no case has been found where this principle of repudiating a tenancy without surrendering the possession, has been extended to an action for the rent, in such a manner as to excuse the tenant from paying rent, or for use and occupation under the contract, by which the tenant made his entry, for the full term of the occupation. And in Hall v. Dewey, Royce, J. expressly declares, “ for other purposes than the statute of limitations, the original relation between the parties has its legal effect upon their respective rights.” It would certainly be a very wonderful departure from the usual principles of the law of contracts, if it were not so. If one party alone had the power, without any express provision to that effect, of terminating his liability under the contract, while he was still receiving the benefits secured to him by the contract, and for which he promised to make compensation so long as he enjoyed them, it would be a construction which is certainly unjust, and equally at variance with the terms and with the spirit of the contract.
It will not fail to be noticed that this is a peculiar species of contract, by which one party concedes the use of a thing, real or personal, to another, for a specified rent or return, the possession being yielded to-the latter. To put the parties upon an equality, which seems to be the purpose of all contracts, the party,. thus obtaining the possession of the thing from another by operation of the contract, should not be allowed to repudiate the contract in part, and not in toto. The lessor certainly has it not in his [179]*179power to revoke the contract, or to terminate it, which is the case in most other contracts where both parties stand upon an equality, or in cases of hiring, and in all cases where continued acts on one part create continued obligations upon the other. In such cases either party may always put an end to the contract by violating its terms, and only becomes liable for damages for the breach of the contract.
It was at one time supposed that in such cases, the party contracting for service for a definite term, if turned away before the full term expired, might recover compensation for the full term. Many elementary writers of credit, and some cases hold this view. But the later English cases do not seem to countenance it. The party thus turned away may elect either to recover in a quantum meruit for the service actually performed, in which case the contract price will not control the amount of the recovery ; or he may sue for breach of the contract in not allowing him to fulfill his contract, in which case he recovers for part performance, and for the damages sustained by the employment not being continued. But he is not at liberty to lie by unemployed for the remainder of the term, and then claim full compensation. Notwithstanding the violation of the contract by the other party, he is still bound to make the best of his time ; Goodman v. Pocock, 15 Q. B. 576.
It seemed at first blush just enough in the present case to apply this principle, and thus excuse the defendants from liability under the contract, after they refused to go on under it, notwithstanding they still persisted in enjoying the benefits of the contract in the use not only of the plaintiff’s patent, but of his machines also. But upon more reflection, we are satisfied that such a construction fails to give the plaintiff the fair and full benefit of the contract, and enables the defendants to obtain an unjust and unequal advantage, and one which the parties never contemplated putting into their power.
By means of the contract, the defendants had “secured the use of the plaintiff’s machines, and of his patent in the manufacture of a machine, for an indefinite time, upon the condition of making a specific compensation for such use, so long as they elected to continue it. The contract provided by implication for an election [180]*180to terminate the use and the liability therefor, whenever the defendants chose to exercise it. But there can be no question whatever that this election, when exercised under the contract, must imply a surrender of the plaintiff’s machines, and that the defendants should cease to use the one they had themselves manufactured by the plaintiff’s permission. We do not understand it is claimed that the contract could be terminated within the fair construction of its own provisions, short of this.
But it is said the defendants might elect to violate the contract and still continue the use, as a mere tort. The objection to this view is, that it is giving the defendants an election which the parties evidently never contemplated, and thus virtually superadding one to the original provisions of the contract, thereby making a contract, and not merely giving construction to it. It is doing this too, greatly to the disadvantage of the plaintiff, and when the contract provides him no redress for any such supposed breach of its provisions. If the contract had provided for the use of the machines for a definite time, there would be more justice and equality in such a construction, as the plaintiff could then recover compensation for the refusal to continue the use during the term. But the term here being at the election of the defendants, there oan be no recovery under the contract for a refusal to continue the use,
And as the contract, in terms, is required to be proved under the declaration, and the charge obligates the defendants to make a particular compensation so long as they continue the use of the machines, and the right, we are not prepared to allow them, by the mere finesse of calling it a breach of the contract, or a tort, to escape from this responsibility and accountability. We think the charge of the court upon this point was correct, at least so far as the plaintiff’s machine was concerned. But the court are not prepai’ed to extend the same rule to the mere use of the plaintiff’s patent. Here there was nothing which the defendants had received of the plaintiff, and which they could restore to him upon repudiating the contract. And we are not prepared to say that after the defendants had done all in their power to restore the plaintiff to the same condition he was in before the contract, they might not cease to act under the contract and take issue, with [181]*181the plaintiff as to the validity of the exclusive right which he claimed by virtue of his alleged title to the patent.
We have not perceived any fatal defect in the evidence by which the plaintiff attempted to trace his title to the patent. Upon general principles the defendants’ contract estopped them from denying the plaintiff’s title so long as they continued to use the machines, unless they could show that he was guilty of fraud in inducing them to enter into the contract; or, that his title had expired before the expiration of the term for which he claims to recover. But the detail of the proof seems unobjectionable. The conveyance from Sickles to Cook was proved by a copy of the record, and was made anterior to the date of the patent, and was not strictly and technically an assignment of a patent, and so perhaps was not entitled to registry under the statute, and if not, it was not legal proof. But the conveyance by Sickles and Cook to the plaintiff of the whole right was sufficient to vest the title of the whole patent in the plaintiff, if it were all in one of the grantors.
The correspondence between the parties prior to the closing of the contract, and the votes of the defendants’ corporation upon that subject, seem altogether unobjectionable evidence upon the issue, and we do not perceive that any improper weight is attached to them in the charge of the court.
We do not see how it was competent for'the defendants to show that they used the machines, or the patent, under a claim of ownership as evidence tending to rebut the plaintiff’s evidence of a special contract. The two things are not inconsistent after the defendants repudiated the contract. They would then be expected to set up some show of title. But that is no ground of defence against the plaintiff’s claim under the contract. The lessee is not allowed to set up an independent title in himself to defeat a recovery under the contract, without showing fraud. And before the defendants repudiated the contract, their having some other color or claim of title was not inconsistent with their purchasing a right under the plaintiff.
The use of the machines by the defendants’ vendees is virtually a use by their permission, and for which they are liable, the same as if they had underlet premises to others. The landlord [182]*182is not bound to go against the lessees, but may go against them, or their under tenants, at his election, ordinarily in some form of action.
The only remaining question, upon which reliance seems to be placed, is whether the contract is not within the statute of frauds. It seems to us very certain that to the class of cases to which this case properly belongs, that is, where the consummation of the contract depends upon the election of one party, or any other contingency which may happen within the year, the statute of frauds has no application; Browne on Statute of Frauds, 278, sec. 276; Tolley v. Greene, 2 Sand. Ch. R. 91, and other cases cited; Lyon v. King, 11 Met. 411. It is certain, I think, in regard to a case of this character, where the obligation on one part depends upon a use conceded on the other part, that even when the contract in terms extends beyond one year, it is not competent for the party, who has acquiesced in the receipt of such use for a succession of years, to successfully defend against an action for the compensation stipulated. And whether the recovery is put upon the ground that whatever is received by one party in performance of a contract, which he elects to avoid on the ground of the statute, he must pay for, or that by acquiescing in the receipt of such use, year after year, he did, toties quoties, renew the contract, does not seem very material. In any view we can take of the case, it is obvious the statute of frauds can have no application.
The judgment is reversed as to all the damages claimed by the plaintiff for the use of the patent right in the manufacture and use of the machine made by the defendants, after notice of repudiation of the contract by the defendants ; and the judgment is affirmed for the remainder. And unless the case can be so amended by the presiding judge at the trial from his minutes, as to show the precise sum thus to be deducted from the verdict, judgment will be reversed generally, and the case remanded for a new trial.