150 Mass. 495 | Mass. | 1890
The note in suit was given by the defendant in consideration of a written agreement by the plaintiff to assign to him an English patent, which was therein agreed to be “ in full force and effect”; otherwise, the defendant was to be relieved from the payment of the note. The defendant contended that the patent was not in full force and effect. It has been heretofore determined by us, when this case came up before, that the meaning of the above words in the contract is, that the patent should be in “ effect ” in a sense that an American patent must be to obtain recognition in our courts, and that, if it should prove to be void for want of novelty or other cause, the defendant would be relieved from the payment of the note. Chemical Electric Light & Power Co. v. Howard, 148 Mass. 352. At the subsequent trial in the Superior Court the plaintiff offered to prove that in point of fact the parties meant and intended something else, namely, that the patent had not lapsed for nonpayment of fees, and that at the time of signing the written agreement they made an oral agreement which was different from and inconsistent with the construction put by us upon the words of the written agreement; but the evidence was properly excluded, since it was merely an attempt to vary the meaning of
The plaintiff contends that he was entitled to introduce such evidence by virtue of the St. of 1883, c. 223, § 14, which provides that the plaintiff shall be entitled to avail himself, in answer to any defence alleged by the defendant, of any facts that would avoid such defence in equity, or would entitle the plaintiff to be absolutely and unconditionally relieved in equity against such defence; and of § 17, which provides that no action or suit shall be defeated on the ground that the relief sought can only be obtained by a suit in equity. But it does not appear that the plaintiff offered the evidence with reference to the rights conferred by this statute, or that any such question was either raised upon the pleadings or presented at the trial. Squires v. Amherst, 145 Mass. 192, 195.
The temporary separation of one of the jurors from his fellows, under the circumstances stated, was found to have worked no injury to the plaintiff, and- was not fatal to the verdict. Nichols v. Nichols, 136 Mass. 256. Commonwealth v. Desmond, 141 Mass. 200. Commonwealth v. Gagle, 147 Mass. 576. Burrill v. Phillips, 1 Gallison, 360. The testimony of the juror was competent to show that nothing happened to affect *or influence him while he was separated from his fellows. Woodward v. Leavitt, 107 Mass. 453, 467-471, and cases cited. Johnson v. Witt, 138 Mass. 79.
Exceptions overruled.