Sone v. Palmer

28 Mo. 539 | Mo. | 1859

RichaRDSON, Judge,

delivered the opinion of the court.

There is nothing in the record that discloses the consideration of the note sued upon ; but it is conceded by the counsel that it was executed in consideration of an assignment, by the plaintiff to the defendant, of the right under the patent to Moses D. Wells for his seed planter for a specified district in this state. The defendant, erroneously assuming thp law to be that the plaintiff had no vendible interest in the patent because he had failed to have the assignment to him recorded in the patent office at Washington, rested his defence upon simply proving that there was no record in the patent office of an assignment to the plaintiff. All the evidence introduced by the defendant did not tend to make out his defence and amounted to nothing; but, although it was admitted, we see no reason why the plaintiff voluntarily suffered a nonsuit. The court had not instructed the jury on any question of law, and had not improperly ruled any point in the case to his prejudice; and this court will not interfere when parties voluntarily suffer nonsuits before any improper decision hurtful to their case has been made. (Schutler’s Adm’r v. Beckwinkle’s Adm’r, 19 Mo. 647.)

The eleventh section of the act of Congress of 1836, chap. 357, provides that every patent shall be assignable, either as to the whole interest, or any undivided part thereof, by any instrument in writing; which assignment — and also every grant and conveyance of an exclusive right under any patent to make and use, and to grant to others to make and use, the thing patented within and throughout any specified portion of the United States — shall be recorded in the patent office within three months from the execution thereof. But it is not declared that the assignment, if not recorded, shall be void; and it is held that the recording of an assignment is not indispensable to its validity, and that the statute is merely directory, for the protection of bona fide purchasers without notice. (Brooks v. Bryan, 2 Story, 526; Pitts v. Whitman, id. 614.)

The only objection taken by the plaintiff to the reading of Hall’s deposition was that it did not appear he was the keeper of the records in the patent office. But the witness testified that he was a clerk in the office, and that his employment consisted chiefly in making examinations in relation to assignments and other papers recorded and filed in the office ; and we think he was quite as competent to prove what documents were in the office as the head of the bureau.

The assignment to the plaintiff from Scott is not contained in the bill of exceptions, but it is stated that it purports to have been executed by J. M. Leach for Scott. As the defendant had made no case, it was unnecessary for the plaintiff to offer any rebutting evidence ; but as he chose to present a paper purporting on its face to have been executed by an agent, the court properly required him to produce the agent’s authority.

The other judges concurring, the judgment will be affirmed.