Joel Stevens v. Ralph Head, 9 Vt. 174

The opinion of the court was delivered by Williams, Ch. J. This action was brought to recover certain sums of money paid, and for the value of goods delivered, by the plaintiff to defendant, in payment of notes, which were executed by the plaintiff, and by the plaintiff and his surety to Strong & Head. The suit was originally commenced against Strong & Head.

The notes, it appears, were executed on the purchase by the plaintiff from Strong & Head, of the right of making, constructing, using and vending to others to be used, an improved cider-mill, in different parts of the State of Vermont, for which a patent had been obtained, by one Wicks. The plaintiff claims that no consideration passed for the notes, that the money and goods paid thereon were paid without consideration, and that, therefore, he is entitled to recover back the same in this form oí action.

It is to be observed that no fraud or deceit is imputed to the defendant, nor has any thing transpired, since the execution of the notes, to impair the right, whatever it was, which was conveyed to the plaintiff. Some questions have been made to the court, which it may be well to notice, although the decision of them may not be necessary to determine the case before us.

The plaintiff has contended, that the defendant had no right to make the conveyance, which was the consideration of the notes, as he had not procured his assignment from Wicks to be recorded; or, at least, that it was incumbent on him to shew his right, after the deposition of the superintendant of the patent office had been read. Our opinion is against the plaintiff on both of these positions.

We think that an assignment of a particular interest in a patent right, or a conveyance of a -right to use an invention, in a limited territory, is not required to be recorded in the patent office, by the laws of the United States.

And as the plaintiff has not been disturbed in the exercise of the right, as conveyed, if it was essential to his right of recovery to prove that Wicks, or his assignees, had never conveyed to the defendant, or authorized him to make such conveyance as he did, the burden of proof was on him; as it was equally convenient for him to make such proof, as for the plaintiff to prove the affirmative. It also may be worthy of consideration, whether the plaintiff has not misconceived the action, if the word “ grant” in the indenture implies a covenant of title, as he contends.

In the case before us it appears, that notes were given by the plaintiff for the purchase; that these notes were a ft e r w a rd s p.aicL.. If the patent was void for any of the reasons, which have been urged, either party had equal means of ascertaining it; and no misrepresentation was used by the defendant, nor any concealment of any materiahfactJKithi.n-h.is. knowledge.

The payment, therefore, by the defendant, was purely voluntary, with a full knowledge, or means of knowledge, of all the facts in relation to the transaction ; and to permit a recovery, under these circumstances, wonld contravene a plain and acknowledged principle of law. Brown v. McKinally, 1 Esp. Rep. 279. Marriot v. Hampton, 2 Esp. 346.

There is manifestly a wide difference between permitting the maker of a note, given for a patent, void on its face, to avail himself of the want of consideration, as a defence, (and such was the case from 13 Wend.) or allowing him, after he has paid such a note, to recover back the sum paid. Of the case of Corbin v. Kendrick, 4 Term.

Rep. 481,which is relied on to shew, that the payment was not voluntary, it is only necessary to remark, that the question, whether the payment was voluntary, does not appear to have been raised, and moreover, the law upon the subject of voluntary payment, probably, was not fully settled at that time ; the only point, made in the court of King’s Bench, was a question of evidence in relation to the admissibility of an attorney to testify to communications from his client.

Starkie, in his treatise on evidence, Vol. 2. p. 118, treats it as a case, where money has been paid on compromise of an action, the compromise having failed and another action brought. The case itself cannot be considered as an authority for the ground taken by the plaintiff in this action. We do not discover any error in the views taken by the County Court. The plaintiff, therefore, takes notning by his motion.