57 Barb. 84 | N.Y. Sup. Ct. | 1870
I am clearly of the opinion that the learned judge at special term was in error in sustaining the demurrer to the second defense set up in the answer. The note on which the action is brought is payable to the order of “ Ball, Baff & Saxton.”
The complaint alleges that the payees duly “ indorsed, assigned and transferred” the same to the plaintiff. This is not denied by the second answer, and must be taken to
The defendants are not estopped from setting up this defense against these notes. It appears from the answer, that the note in question was given for the amount claimed to be due, under and by virtue of a certain contract between the defendants and the payees of the .note. The said payees claimed to have a patent, which gave them the exclusive right to make and vend reapers and mowers, with certain specified improvements, and gave a license to the defendants to make and vend such reapers and mowers, and also to sell territory for a certain specified considera
So in the case of Bliss v. Negus, (8 Mass. R. 46.) In
It does not appear in this case, either by the complaint or the answer in question, that it was part of the agreement that the defendants should not dispute the^plaintiff’s right and title, and would not set up any defense against the validity of the patent in any action against them, to enforce their promises made in consideration of the license. It does appear 'in another action between some of these parties that such was part of the defendant’s agreement.
There is no force in the plaintiff’s objection that this court has no jurisdiction to try the question of want of consideration, because it would necessarily involve an inquiry into the validity of the patent. If the issue was patent or no patent, or right or no right under it, so that the judgment would determine that question, one way or the other, the objection would be well taken. (Dudley v. Mayhew, 3 N. Y. Rep. 9.) But that is not the issue here. The action is upon the note, and the defense is a total want of consideration. The issue therefore is, consideration or no consideration, of a promissory note. The inquiry into the validity of the patent, or of the license, comes in collaterally only, by way of evidence. In such cases the court may inquire into the validity of a patent as well as anything else,, for the purpose of determining the question of consideration. Cases involving just'such defenses as this, are very common in our State courts. In addition to the cases cited on the other point, I refer to the cases in our own court, of Cross v. Huntly, (13 Wend. 385;) Head v. Stevens, (19 id. 411;) and Snow v. Judson, (38 Barb. 210.)
The true test, I apprehend, in all such cases is, whether the judgment upon the issue, allowing the court to have jurisdiction, would affect or determine the right claimed under the patent. All which the judgment in this action could determine would be, whether the note was a valid promise. Indeed, it is plain enough that no United States court would have jurisdiction to try this action, all the parties residing in this State. (Brooks v. Stolley, 3 McLean, 523. Burr v. Gregory, 3 Paine, 426.)
The third answer, clearly, does not state facts sufficient
'The demurrers to the third and fourth answers are, therefore, well taken, and the order sustaining the demurrers to those answers should be affirmed.
The order, so far as it sustains the demurrer to the second answer, should be reversed, and an order entered overruling the demurrer to that answer and ordering judgment for the defendants thereon, with leave, however, to the plaintiff to notice his action for trial, and try that issue.
Johnson, D. D, Smith and Dwight, Justices.]