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to the plaintiff for the payment of 108. per ton by agreement upon and in respect of 500 tons of a substance used in manure, manufactured or sold by the defendants pursuant to the plaintiff's permission or authority, by means of the use of an invention comprised in letters patent granted to the plaintiff,-the defendant pleaded, that, at the time of the agreement, and at all times since, the letters patent were void, and the plaintiff had no such right or privilege as supposed; that the defendants were before and at the time of the agreement entitled as of right, and without license or permission from the plaintiff, to use the supposed invention, and sell the said manure, and the plaintiff never did grant any license to the defendants, and the same if given would have been void, and the defendants had no benefit from the agreement, and there was not any sufficient consideration for making the agreement or paying the money claimed. claimed. It was held, on demurrer, that the plea was no answer to the plaintiff's claim. Wightman, J., said: "The declaration is upon an executed contract. The plea is, that there was no consideration for the *contract. Now, it appears that the *81] defendant has had all that he bargained for. It is said that this is analogous to the case of a party who has no title assuming to grant a right that every one else exercised; but that is not the case here, because, for all that appears, the defendant has had the same benefit as he would have had if the patent were a valid one."

Montague Smith and Norman, in support of the rule.—The first question is, whether the contract declared on is a valid contract within the statute of frauds. It is submitted that it is an agreement not to be performed within a year, and therefore within the 29 Car. 2, c. 3, s. 4. The Guild, no doubt, had the benefit of it for a certain time: but, upon the face of it, it clearly was not to be performed within the year; part only of the money (501.) being payable within the year, and the residue not until the expiration of three years, besides something to be done during the whole period the patent should enure. It must be borne in mind that this is not a contract for the absolute sale of the patent. Donellan v. Read, 3 B. & Ad. 899, was the case of an executed consideration, and the plaintiff had actually performed his part within the year. [CRESSWELL, J.-The contract must, with reference to this point, be good or bad at the time it is made.] No case has held, that, where the contract is executory on both sides, it is good because it may on the one side be performed within the year. [CRESSWELL, J.-In Donellan v. Read, performance by the landlord was a necessary ingredient; it was the consideration for the annual payments.] Parke, B., says in Cherry v. Heming, 4 Exch. 635,t-In Donellan v. Read, the court considered that the words not to be performed' meant, not to be performed on either side, and did not include cases where the contract was performed on the one side. That was certainly in accord

ance with the opinion expressed by *Lord Tenterden in Brace[*82 girdle v. Heald, 1 B. & Ald. 722.” In Drant v. Brown, 3 B. & C. 665 (E. C. L. R. vol. 10), 5 D. & R. 582 (E. C. L. R. vol. 16), A. entered into a written agreement with B. for the hire of a piece of land for the purpose of making bricks. C. afterwards made an offer in writing to let another piece of land to A. upon the terms contained in the agreement between him (A.) and B., and at a subsequent time A. verbally accepted this offer. In an action by C. for a breach of some of the terms of this contract, it was held that the written offer made by C. was admissible in evidence without being stamped. [CRowder, J.-There was no complete agreement in writing there. What part of this agreement do you say was to be performed by the plaintiff beyond the year?] The fourth clause. [WILLES, J.-Not necessarily. The fifth clause seems the strongest one for you,- that, in the event of the Guild not being carried on, the patent should revert to you, subject to the repayment of moneys paid to keep it up." The words "subject to," however, do not make a covenant: Wolveridge v. Steward, 3 M. & Scott, 561 (E. C. L. R. vol. 30), 1 C. & M. 644,† 3 Tyrwh. 637,— reversing Steward v. Wolveridge, 9 Bingh. 60, 2 M. & Scott, 75 (E. C. L. R. vol. 28): they amount to a condition for her benefit.] A signature by one party to the contract is not sufficient: Gaunt v. Hill, 1 Stark. N. P. C. 10; Drant v. Brown. Both must be bound: Lees v. Whitcombe, 5 Bingh. 34 (E. C. L. R. vol. 15), 2 M. & P. 86 (E. C. L. R. vol. 17); Sykes v. Dixon, 9 Ad. & E. 693 (E. C. L. R. vol. 36), 1 P. & D. 463. In Warner v. Willington, 3 Drewry, 523, 531, Kindersley, V. C., says: "A memorandum of agreement supposes that the two parties have verbally made an actual contract with each other; and, when the terms of such contract are reduced into writing, and signed, that is sufficient to bind the party signing: but, if the memorandum is of an offer only, that assumes that there has been no actual contract between the parties." [WILLES, J.-He afterwards says,-532,— "Taking it, then, as a memorandum, not of an agreement, but of *an offer not then finally accepted, the question is whether there [*83 has been a sufficient acceptance by the plaintiff before the defendant retracted. Now, what is alleged by the plaintiff as an acceptance, was, his sending the draft lease. This raises another question, viz. whether acceptance can be by parol without writing; and it is singular that I cannot find any case in which it is determined that parol acceptance of a written proposal is sufficient. But I think, upon principle, that parol acceptance would be sufficient; because, when one party has signed a written proposal, and the other expressly accepts it by parol,as, if he says in express terms I accept the proposal,'-it appears that that reduces it to a case of parol agreement come to between the parties, and a memorandum of the agreement signed by one, in which case it is clear that the signature of one party is sufficient to bind him,

although the other has not signed."] That is founded upon a dictum of the Lord Keeper (Cowper) in Coleman v. Upcot, 5 Vin. Abr. 527, 528, "that, if a man (being in company) makes offers of a bargain, and then writes them down and signs them, and another person then takes them up and prefers his bill, there will be a sufficient agreement;" the authority of which dictum is questioned in Dart on Vendors, 100. [CROWDER, J., referred to Bird v. Blosse, 2 Ventr. 361,-"One wrote a letter signifying his assent to the marriage of his daughter with J. S., and that he would give her 15007.; and afterwards, by another letter, upon a further treaty concerning the marriage, he went back from the proposals of his letter; and at some time afterwards declared that he would agree to what was proposed in his first letter. This letter was held a sufficient promise in writing within the statute of 29 Car. 2, called the statute against frauds and perjuries, and that the last declaration had set the terms in the first letter up again."] That *84] which is called a proposal there was in *truth an acceptance. That class of cases met with the disapprobation of Sir J. Mansfield in Allen v. Bennet, 3 Taunt. 169, 173; and some further doubt is cast upon them in Huddleston v. Briscoe, 11 Ves. 583, 592. In Mozley v. Tinkler, 1 C. M. & R. 692,† there never was any agreement at all on the part of the plaintiff: the offer was conditional. The decisions on

the stamp act are applicable here: no stamp is requisite on a mere proposal: Vollans v. Fletcher, 1 Exch. 20.† To constitute a complete agreement, the memorandum must show the acceptance, as well as the proposal. [WILLIAMS, J.-In Coleman v. Upcot, 2 Eq. Cas. Abr. 45, Lord Keeper Harcourt "decreed defendant to perform this agreement, for that it was directly within the statute of frauds, as being an agreement signed by the party to be charged with the same, and there was no need of its being signed by both parties; and plaintiff by his bill has submitted to perform his part of the agreement. This, though it was not at first a contract, but conditionally only, if the other would accept of it, yet, when the other had accepted of it, it was all one."] The filing of the bill there reduced the whole into writing. The statute is not confined to cases where neither party can perform the contract within the year. Donellan v. Read and Cherry v. Heming were both cases where upon an executed consideration the defendants would have been liable, however void the agreement. Where a corporation has actually used and occupied land, for a corporate purpose, by permission of the owner, it is liable in assumpsit for use and occupation, though there be no contract under seal for such occupation: Finlay v. The Bristol and Exeter Railway Company, 7 Exch. 416;† Lowe v. The London and North Western Railway Company, 18 Q. B. 632 (E. C. L. R. vol. 83). Sweet v. Lee, 3 M. & G. 452 (E. C. L. R. vol. 42,) 4 Scott, N. R. 77, was the case of an unexecuted agreement. In Birch v.

[*85

*The Earl of Liverpool, 9 B. & C. 392 (E. C. L. R. vol. 17), 4 M. & R. 380, it was held that a contract whereby a coachmaker agreed to let a carriage for a term of five years, in consideration of receiving an annual payment for the use of it, but which, by the custom of the trade, was determinable at any time within that period upon the payment of a year's hire, was an agreement not to be performed within a year, within the meaning of the statute of frauds. Bracegirdle v. Heald, 1 B. & Ald. 722, and Williams v. Jones, 7 D. & R. 548 (E. C. L. R. vol. 16), 5 B. & C. 108 (E. C. L. R. vol. 11), are to the same effect. An instrument void as a lease for not being by deed, after the 8 & 9 Vict. c. 106, may still be valid as indicating the terms of the holding: Tress v. Savage, 4 Ellis & B. 36 (E. C. L. R. vol. 82); Stratton v. Pettit, 16 C. B. 420 (E. C. L. R. vol. 81); Davis v. Jones, 17 C. B. 625 (E. C. L. R. vol. 84). The statute has always been construed with strictness: Cocking v. Ward, 1 C. B. 858 (E. C. L. R. vol. 50); Kelly v. Solari, 9 M. & W. 54;† Sarl v. Bourdillon, 1 C. B. N. S. 188, (E. C. L. R. vol. 87). The rule is well stated by Tindal, C. J.,--in Souch v. Strawbridge, 2 C. B. 808, 814 (E. C. L. R. vol. 52),- Assuming that the 4th section. of the statute of frauds does apply to actions upon considerations that are executed, it seems to me that the contract in the present case is not within its terms. It speaks of any agreement that is not to be performed within the space of one year from the making thereof;' pointing to contracts the complete performance of which is of necessity extended beyond the space of a year. That appears clearly from the case of Boydell v. Drummond, 11 East, 142, the rule to be extracted from which, is, that, where the agreement distinctly shows upon the face of it that the parties contemplated its performance to extend over a greater space of time than one year, the case is within the statute; but that, where the contract is such that the whole may be performed within a year, and there is no stipulation to the contrary, the statute does not apply." Then, the learned judge ought to have *directed the jury to find [*86 for the plaintiff on the issue on non concessit, instead of leaving it to them, as he did, upon the facts. The effect of the plea of non concessit was fully considered in Cooke v. Blake, 1 Exch. 220.† The allegation that the plaintiff was an inventor, was material and traversable: Routledge v. Grant, 4 Bingh. 653 (E. C. L. R. vol. 13), 1 Moore & P. 717 (E. C. L. R. vol. 17). The mere application of a known article to a new use, the mode of application not being new, but, before the date of the patent, having been used in applying analogous articles to the same purpose, is not a manufacture within the meaning of the statute, and cannot be made the subject of a patent. [CRESSWELL, J.Wire is old; plaiting is old: is the making of wire-rope not the subject of a patent?] No: a patent might be taken out for the machinery for plaiting or twisting it. Darcy v. Allin, Noy, 173, Walker v. Congreve, Godson on Patents, 56, Phillips on Patents, 127, 134, Brunton v.

Hawkes, 4 B. & Ald. 541 (E. C. L. R. vol. 6), Kay v. Marshall, 5 N. C. 492, 7 Scott, 548, Pow v. Taunton, 9 Jurist, 1056, Hotchkiss v. Greenwood, 11 Howard's (American) Rep. 248, and Bean v. Smallwood, 2 Story's (American) Rep. 408, were also referred to.

Cur. adv. vult.

WILLES, J., now delivered the judgment of the court:In this case the plaintiff sought to recover damages for non-performance of a contract alleged to have been entered into by the defendant with her, whereby she was to assign a patent which she had obtained for making toys, in trust for an institution called the Ladies' Guild, which was under the management of the defendant; which patent was to be used by the Guild for making toys; and the plaintiff was to have 5 per cent. upon the profits made thereby, and the defendant was to provide *for the next payment to be made in respect of *87] the patent; and, if the profits made did not reach a certain sum in the first and subsequent years, the plaintiff should have the right, upon giving one month's notice, and repaying any payments made to keep up the patent, to reclaim it, unless the deficiency in the year was made up within the month: and, in case of the Ladies' Guild not being carried on, the patent was to revert to the plaintiff, subject to her repaying any moneys paid to keep it up.

The declaration alleged as a breach that the defendant had not provided for the next payment to be made in respect of the patent. The defendant pleaded, amongst other pleas, a denial of the alleged contract, that the invention patented was not new, and non concessit.

At the trial, it was proved, that the defendant had made the plaintiff a written proposal, signed by him, containing the terms of the proposed contract, to which she had assented by word of mouth; that she had allowed the Guild to have the possession and use of her patent until and after the time when the next payment to be made fell due, and had in all other respects fulfilled the terms of her agreement with the defendant; that the next payment had not been made by the defendant; and that, consequently, the patent became void.

Conflicting evidence was given as to the novelty of the invention. The defendant took several objections to the plaintiff's right to recover, viz. that no valid contract had been proved; that the invention was not new; and that, at all events, the defendant was entitled to a verdict upon the plea of non concessit, upon the ground that the invention was not the proper subject of a patent. The case was, however, left to the jury, who found all the issues for the plaintiff, with 757. damages.

*The defendant, in Michaelmas Term last, obtained a rule to *88] set aside the verdict, and for a new trial, on the ground of alleged misdirection of the learned judge,―first, in not directing the jury that there was no evidence of the contract stated in the declaration, upon the ground that it was, within the 4th section of the statute of frauds,

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