Meyers v. Funk

Rothrock, J. „ pateutengiitrepresentafaons. I. There is a conflict in the evidence as to what oral representations were made by the defendant, E. II. Funk, during the negotiations for the exchange of property, and at the time the conveyances were delivered. We do not think it is necessary to give the evidence in detail. The question cannot be controlled by the number of witnesses which each party has produced and examined. The written assignment of the territory made by the defendant to the plaintiff recites that the “Flora Temple Churn” was patented in April, 1866. It purports to convey an interest in an invention which was then patented. It is conceded that the defendant exhibited a churn, at the time and before the trade was consummated, upon which was inscribed certain letters to the effect that it was patented, with the date of patent. With these proofs it is useless to argue that the defendant did not represent that the churn was patented in April, 1866. The writing, and the inscription on the churn, were standing representations to that effect, which cannot be gainsaid nor denied. That the defendant, in his answer and in his evidence, admits that the recital in the assignment is not true, and that he knew it was false, when he executed and' delivered it, must be conceded, for the evidence shows without conflict that he did not even make application for a patent, until after the assignment to the plaintiff. [55] It is contended by counsel for appellants that although the defendant had not. procured a patent when he sold the territory to the plaintiff, yet that when he did procure it, the right of the plaintiff in the territory purchased by him vested and took effect by relation. But the proofs in the case show that the patent which was afterwards applied for and obtained did not cover all the improvements, or all of the invention claimed by the defendant when he made the assignment to the plaintiff. "When he made his application for a patent for the invention claimed, the commissioner of patents decided that he was not entitled to letters patent for all that was claimed,, because certain parts of it were covered by patents to others. Defendant then modified the claim first made, and took a patent in accordance with the decision of the commissioner, blow material this modification was we need not inquire. "We think it not too stringent a rule to hold that one who purchases a patent right which does not sell on its own merit, but requires the services of travelling salesmen, is entitled to the very invention and patent which he purchases, and nothing less. It is said that the plaintiff should have promptly offered to rescind the contract, and that by reason of the delay he is not entitled to relief. But the evidence show's that he did not ascertain until a short time before he brought this suit that the defendant did not have a patent when he made the assignment. Besides, there really was no rescission necessary upon the part of the plaintiff. By the assignment to him he received absolutely nothing which a rescission would require him to restore to the defendant. It is said that the court belów had no jurisdiction to try the validity of the patent obtained by E. H. Eunlc in September, 1868; that the federal courts,alone have jurisdiction of all actions in which the validity or force of letters-patent is involved. But the ready answer to this is that the validity of the patent which defendant obtained is not involved in the ac [56] tion. The issue presented here is, did the defendant falsely represent that he had a patent dated in April, I860, and did he by means of such representation obtain a conveyance of the plaintiff’s land without any consideration? The evidence-shows beyond question that Lewis S. Funk is not an innocent purchaser of the land claimed by him. lie was present when the negotiations for the exchange of property-were made, and at its consummation. Ilis name appears as an attesting witness to the assignment of the interest in the pretended patent. He took an active part in making the trade, and joined in the. representations made by the defendant, who was his brother, -and we think the evidence fairly shows that he represented that he had assisted his brother in obtaining a patent. In our opinion the decree of the Circuit Court should be Affirmed.