17 Barb. 458 | N.Y. Sup. Ct. | 1854
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;
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
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
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
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
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
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.