Thomas v. Quintard — 12 N.Y. Super. Ct. 80

Majority

p. 80

George F. Thomas, Assignee of Isaac H. Bassett and Robert W. Aborn, v. Edward A Quintard.

Headnote

Upon the sale of an interest in a patent, the purchaser is precluded from setting up the want of value in the invention, or insufficiency of the materials, where he has sold the right transferred to him, to another for value. He cannot defend an action for the unpaid purchase money on that ground. It would he otherwise if there had been a warranty, or express representation of the value or character of the article.

By parting with the patent, he had disabled himself from reinstating the plaintiff in its possession, and this forms another answer to his defence.

(Before Hoffman and Slosson, J.J.)

November 7-27, 1855.

The cause came up on a verdict taken, subject to the opinion of the court, upon a case to be made, with a stay of proceedings, and to be heard in the first instance at the General Term. The defendant moves that the verdict be set aside, and a new trial granted, with costs to abide the event.

The plaintiff is the general assignee of Bassett and Aborn, and the action was brought upon a promissory note given by the defendant to the firm of Bassett, Aborn & Motley, upon his purchase from them of an interest in a certain patent known as Mason’s Patent Sperm Oil. Motley released all his right and interest in the partnership assets to his copartners, Bassett and Aborn, and the note passed, with other assets of the firm, into the hands of

p. 81

the present plaintiff, as their assignee, under a general assignment for the benefit of creditors. The following is a copy of the note:

$1,070, New York, July 1st, 1853.

Twelve months after date, I promise to pay to Messrs. Bassett, Aborn & Motley, ten hundred and seventy dollars, for value received.

E. A. Qttirtard.

Endorsed, Bassett, Aborit & Motley.

Bassett & Aborh.

The defence was, that the note was not negotiable, nor intended to be so; that it was without consideration passing to the defendant from any one.

The defendant proved that the note was given, among other notes, in payment of a purchase of an interest in a patent known as Mason’s Patent Sperm Oil.

The defendant’s counsel, at the trial, offered to show of what ingredients the article was composed, the offer was rejected, and an exception taken.

He next offered to show, that the article which was sold by Bassett, Aborn & Motley, and called Mason’s Sperm Oil, was composed of ingredients substantially different from that patented, and that the latter was of no value, and incapable of use.

This was also rejected, and forms the ground of another exception.

A distinct offer was also made, to prove, that the thing patented was of no value, and again, that the thing patented would not produce the effect described in the patent.

Both these offers were overruled. It appears that the defendant had assigned his interest in the patent and invention to one Jones, before the suit was commenced, and this assignment recited the assignment to himself of the patent right, known as Mason’s patent, and purports to transfer it, as it was transferred to the defendant.

There was no warranty upon the sale, and there were no representations as to the character or value of the articles sold.

De Forest, for the plaintiff.

p. 82

Worth, for the defendants.

We think the plaintiff is entitled to judgment upon the verdict, on two grounds.

First. That his own assignment precludes him from saying that what he sold was valueless; and there being neither warranty nor fraudulent representation, there was a sufficient consideration for the note. (Johnson v. Titus, 2 Hill, 606 ; Oakley v. Boorman, 20 Wend. 596 ; Say v. Richards, 21 Wend. 626 ; Williams v. Hicks, 2 Vt. 36 .)

Next. That, by parting with the patent to another, and apparently on a valuable consideration, he has disabled himself from placing the plaintiff in the same situation as he was in at the formation of the contract. The defendant would have a right to call for the restoration of what was transferred. It may be of some value to him. (Taylor v. Hare, 4 Bos. and Pull, 201; Barnet v. Stanton, 2 Ala. Rep. 181 ; Chance v. Commissioners of Clay County, 5 Blackford, 441; Conner v. Henderson, 15 Mass. Rep. 319 ; Griffith v. The Fred. County Bank, 6 Gill & John. 624.)

Besides these considerations, the defendant is probably estopped by his own assignment, referring to that to him, from questioning the patent or invention. The case of Boorman v. Taylor (2 Add. & Ellis, 278) is very strong to this point. Upon these views, the ruling of the Judge was, in all respects, correct.

Judgment for the plaintiff, for the amount of the verdict, with interest and costs.

Cases cited

Fay's Administrators v. Richards 21 Wend. 626 N.Y. Sup. Ct. p. 82