READ V. BOWMAN, 69 U. S. 591 (1864)

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U.S. Supreme Court

Read v. Bowman, 69 U.S. 2 Wall. 591 591 (1864)

Read v. Bowman

69 U.S. (2 Wall.) 591


1. A declaration that a certain improvement, containing in reality one principal and three distinct minor improvements, was patented on a day named is supported by evidence that four patents -- reissues -- were subsequently granted on an original patent of the date named, such original having, in its specification, described all and no more than the improvements specified in the four reissues. The reissues relate back.

2. Where the purchaser of a claim for a patent agrees that as soon as the patent is issued he will give his notes, payable at a future date, the fact that no patent has issued until after the day when the last note, if given, would have been payable is no defense to assumpsit for not having given the notes, the patent having finally issued in form.

Read & Whitaker were inventors of four improvements in reaping and mowing machines, the principal one being what was called a "tubular finger bar," and in 1856 were in partnership, under the name of Lloyd, Whitaker & Co., with two persons named Lloyd & Bowman, these last-named persons using the improvements with them, though not in any way inventors. On 27th December, 1856, Read & Whitaker applied for a patent, their application giving authority to Mr. Hanna, of Washington, whom they appointed their solicitor,

"to alter or modify the drawings, specifications, and claims thereunto attached in such manner as circumstances might require or to withdraw the application altogether should it be deemed advisable, and in that event to receive and receipt for such sums of money as should be returnable under the act of Congress in that case made and provided."

Pending this application and before any letters were granted, Read agreed to sell out his interest to Whitaker for $4,500, of which $1,500 was to be paid and was paid in cash. The instrument of sale recited that

"Whereas Read & Whitaker have invented an improvement, for which they have applied for letters patent, and whereas Whitaker has agreed to purchase of Read his interest in and to said invention in consequence of letters patent granted or to be granted, now therefore I, the said Read, in consideration &c., hereby assign &c., to Whitaker, the full and exclusive

Page 69 U. S. 592

right to said invention, as set forth and described in the specifications which I, in company with Whitaker, have prepared, executed, and filed with the Commissioner of Patents at Washington, preparatory to obtaining letters patent therefor. To have and to hold,"

&c. Then, in a separate paragraph, the assignment proceeds, for the same consideration ($4,500), and the further consideration of one dollar, to assign to Whitaker Read's right, title, and interest in and to three claims to inventions made by Read & Whitaker, for which the specifications had not been fully made, describing them.

The specifications above referred to contained a description of all the improvements in the case, which were plainly but parts of one invention.

Contemporaneously with this assignment, Whitaker, as one party, and "Bowman & Lloyd" signing as another, executed an engagement to Read for $3,000, the balance of the consideration of the transfer from Whitaker to him. The contract, in opening, recites, that Read had assigned to Whitaker all his title in certain inventions and improvements (both plural) made by Read & Whitaker, in improvement of grain reapers and grass mowers &c. (for full particulars reference being made to said assignment),

"for which the said Whitaker has agreed to pay the said Read as follows: $1,500 on the 1st January, A.D. 1859, and $1,500 on the 1st January, A.D. 1860, with interest."

And the contract then thus concludes:

"Now therefore, we, the said J. Lloyd, F. H. Bowman, and J. T. Whitaker, do hereby agree, for a valuable consideration to us paid by the said Read (the receipt whereof we do hereby acknowledge), as soon as the patent for the improvement in the grain reaper and grass mower aforesaid is obtained by the said Read and Whitaker, to execute unto the said Read our joint and several notes for the said amounts, payable as aforesaid, with interest as aforesaid."

The dates when the notes were to come due must be observed. After this time, Read retired from business, the

Page 69 U. S. 593

three other persons continuing it, and using all four improvements.

The "specifications" referred to in Read's assignment, as filed by him and Whitaker with the Commissioner of Patents, presented in reality four improvements. Mr. Hanna, their solicitor, withdrew three of the claims, and on the 11th of August, 1857, accepted a patent for one of them only, as specified in a specification amended by him; the patent embracing all the improvements in its specification, but the claim being restricted to the principal improvement, that of the "tubular finger bar." On the 12th of February, 1859 -- this date, too, must be noted -- "Bowman & Lloyd," who now ceased to use any of the improvements, notified to Read that as more than a sufficient time had elapsed for procuring the patent for improvements, and as the same had not been procured, they (Bowman & Lloyd) considered themselves discharged, and the contract void so far as they were concerned. About one year after this notice, that is to say, on the 7th February, 1860, Read did obtain four patents -- reissues upon the patent of August 11, 1857, which reissued patents, it was admitted, did contain the said four improvements, being all the improvements in the matter.

Read accordingly brought assumpsit against Whitaker, Bowman & Lloyd, for breach of contract in not executing their two notes for $1,500 each, the declaration alleging that subsequently to making the agreement, "to-wit, on the 11th day of August, 1857, the said improvement was duly patented," nothing being said about any surrender or about the reissues and the one patent of August 11, 1857, being alone offered in proof.

The question below was whether this declaration was sustained by the evidence and whether Lloyd & Bowman were discharged. The court held the declaration sufficient on the reissued patents being granted, that both Bowman & Lloyd were bound, just as Read was, that Bowman & Lloyd were chargeable with notice of Mr. Hanna's authority and were bound by such changes and modifications as he made. Verdict was given for the amount of the notes with interest.

Page 69 U. S. 594

Judgment having gone accordingly, the defendants brought the case here on error.

Page 69 U. S. 598

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