Keene Mach. Co. v. Barratt

"WOODS, Circuit Judge, after stating the case, delivered the opinion of the court. The assignment of errors contains many specifications which are unavailing. They are to the effect that the court erred in its several findings of fact, in refusing to make findings requested, in finding matters of evidence instead of the ultimate facts, and in finding as fact matter of law. The first five specifications are objectionable, for the reason that they do not set out, as required by rule 11. of this court (32 C. C. A. Ixxxviii., 90 Fed. cxlvi.), the substance of the evidence referred to, and áre unimportant for the reason that the court either based no finding on that evidence or found in favor of the plaintiff. As pointed out in Wright v. Bragg, 37 C. C. A. 574, 96 Fed. 729, tthe only recognized exception to the statutory rule which in common-law cases tried without a jury limits the review, on writ of error, to “rulings of the court in the progress of the trial,” and to the question “of the sufficiency of the facts found to support the judgment,” is that “a party may [593] insist upon a finding in Ms favor on tlie ground that there is a total lack of evidence to support a contrary finding, or, if he have the burden of the issue, on the ground that the evidence in his favor is adequate, nnimpeached, and without conflict or uncertainty.” See, also, World's Columbian Exposition v. Republic of France, 38 C. C. A. 483, 96 Fed. 687. But, to raise such a question as one of law, the exception or motion must be specific to that effect, distinguishing it from a question of the weight of evidence. Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862. If a verdict or finding, whether general or special, be defective on its face, or on the face of the record, the remedy, it is well understood, is a new venire; and so, if matter of law is found as matter of fact, the fact not being found, or if evidentiary facts are found, and the ultimate fact not found, the remedy must be sought by a motion for a venire de novo. It must be remembered, however, that silence in a special verdict or finding upon any issue or question of fact is equivalent to an express finding thereon against the party on whom was the burden of proof. If on any issue there is a finding of the ultimate fact and also of evidentiary facts, the latter will be regarded as surplusage, not affecting the validity of the verdict or finding as an entirely. “The one question upon a special finding or verdict,” it was said in Lamson v. Beard, 36 C. C. A. 56, 65, 94 Fed. 38, “is ‘of the sufficiency of the facts found to support the judgment.’ In determining that question, of course, every relevant and material fact found must be considered, and every irrelevant and immaterial fact rejected, and when the fact has been excluded from consideration there can remain no harm from the error of admitting the evidence by which it was established.” By the same principle, when upon a ¡special finding upon different issues judgment has been given in favor of the defendant, if the finding on one issue is unassailable, no error of law or fact in respect to another issue can be deemed harmful. Under the statute it is not necessary, and probably was not contemplated, that a special finding should be followed by a statement of more than a general legal conclusion that the plaintiff or the defendant is entitled to judgment, and probably the mere entry of judgment would be enough. To say the least, no statement of a legal conclusion, however wrong,' can be deemed important, if the judgment rendered is right upon the facts found. The finding before us contains several propositions, each of which, if unassailable on any of the grounds urged, is sufficient to support the judgment rendered. They are, in substance, that the contract declared on never came into force, because “neither countersigned nor approved” by the officers of the plaintiff; that prior to the signing of the contract there was a parol agreement that it should not take effect as a contract unless the defendants should be satisfied with the working .of devices, constructed according to the patents, then being installed, which on trial failed to work satisfactorily; and that the legal title to the patents which were the subject of the agreement was in four individuals, who were stockholders of the plaintiff corporation, and was not vested in the eor594 poration until May 4, 1898, when, pending this action, the owners executed a conveyance of the title to the plaintiff. Touching the last proposition, the plaintiff in error contends that the after-acquired title inured, by force of the contract, to the benefit of the defendants, and by relation made them owners from the date of the execution of the contract, and therefore liable for a failure to perform their undertakings. Assuming, without deciding, that the title acquired by the plaintiff passed by force of the contract to the defendants, we.cannot agree that the defendants, while not possessed of the title, became liable, by relation, for the failure to do things which at the time of the failure they had no legal right to do. The doctrine of relation is equitable in its nature, and is invoked for the purpose of accomplishing right or defeating wrong, but never for the purpose of inflicting injury, by making wrongful anything which when done was rightly -done. Bragg v. Lamport, 38 C. C. A. 467, 96 Fed. 630, and cases cited. In Felton v. Smith, 84 Ind. 485, it was said: “The fiction of relation is allowed force when equity requires that the last of a series of acts shall be carried back to the first or original act, for the purpose of shutting out intervening claims. In no case is it allowed force where the party insisting upon it is endeavoring to secure an unconscionable result.” The contract between these parties, whether called a grant or an assignment, did not transfer to the defendants the title or any present interest in the patents. The plaintiff had no title or interest to dispose of. Patent rights and the title thereto are intangible, and can be transferred only by an instrument in writing executed by the owner. -The defendants, as the finding shows, were given possession of nothing under the contract, and in no way derived benefit from it. They constructed no devices under the patents. To apply the doctrine of relation to the extent insisted upon would be palpably and grossly unjust. It has often been and may well be invoked against one who has had the possession and enjoyed the advantages of possession of property under the grant of one who had not, but afterwards acquired, title, but it may not be invoked for the purpose of creating liability against ■one-who has not had and by no possibility can receive a corresponding benefit, which can be regarded as affording a substantial consideration, within the meaning of the cbntract or grant, for the liability sought to be enforced. The following authorities have been cited, but none of them support the present contention: Rawle, Cov. § 252; Cole v. Raymond, 9 Gray, 217; Cornell v. Jackson, 3 Cush. 506; Marsh v. Scott, 125 Ill. 114, 16 N. E. 863; King v. Gilson, 32 Ill. 348; Cotton v. Ward, 3 T. B. Mon. 305; Reese v. Smith, 12 Mo. 344. Whether the evidence justified the finding that the contract was delivered conditionally we do not consider. To show the competency of the evidence, reference has been made to Burke v. Dulaney, 153 ü. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698. The fact that the contract, after passing out of the possession of the officers of the plaintiff, was materially altered, and in its .final s.hape was never countersigned and approved, as required by its [595] terms, is admitted; but, to quote the brief: “The plaintiff .maintains that this provision for tlie countersigning and approving was left in the contract by merest negligence; that it was nullified by a later clause in the contract; that it is inconsistent with the conduct, of the parties, and was never intended to be observed by either of them.” There is no such inconsistency between the two clauses referred to as to justify the contention that one was nullified by the oilier. But for the alteration afterwards made, the original signing of the contract by the officers of the corporation would perhaps have been enough, but in its Anal shape the contract was never signed by or for the plaintiff, nor “countersigned and approved,” as required, and, if there was good reason for disregarding the explicit provision on the subject, it was outside of the instrument itself, and tbe plaintiff should have proved it. As originally prepared and signed by the officers of the corporation, the contract was in terms “subject to the approval of George Taylor,” but that did not clothe him with power to make an essentially different or new contract, which should be binding, though not “countersigned and approved.” Whether the provision for countersigning and approval was left in the agreement by negligence, and whether it is inconsistent with the conduct of the parties and was never intended to be observed, are questions of fact, which, if originally open to inquiry, are concluded by the finding. The judgment below is affirmed.