Troy Iron and Nail Factory v. Corning et al. hand, or by the use of any machinery which they might choose, other than that which should infringe upon Burden's patent, then it results that the defendants relinquish the patent horseshoe business, worth, as is proved by the testimony of Mr. Davidson, $10,000 per annum, for the privilege of doing just what they had a right to do before, and what every body else had the right of doing, that is, making those spikes by hand, or with any machinery not infringing on Burden's patent. Such a construction would be contrary to the well-settled rule in the interpretation of contracts, that, when a clause is capable of two significations, it should be understood in that in which it will have some operation, rather than in that which it will have none, "ut res magis valeat quam pereat." Pothier, cited in 2 Comvn on Contracts, 533; Parkhurst v. Smith, Willes's Reports, 332; Archibald v. Thomas, 3 Cowen, 290. An agreement or contract must have a reasonable construction, according to the intent of the parties, as if a man agree with B. for twenty barrels of ale, he shall not have the barrels after the ale is spent. Comyns's Digest, Title Agreement, C. So if a man promise payment, without saying to whom, it shall be intended to him from whom the consideration comes. Cro. Eliz. 149. And upon a promise of payment, according to the rate of forty shillings per ton, it shall be intended that payment will be made for the odd pounds, according to the same rate. Yelverton, 124. The practicalxnstruction of both parties has been in conformity to the interpretation on which the defendants insist. "Contemporanea expositio est fortissima lex." If the construction were a doubtful one, it should, under the circumstances, be held to be against that set up by the plain-tiffs, whose grantor, Henry Burden, is the contractor. In a case of doubt, the words of a promise, or covenant, are to be taken most strongly against the promisor or contractor. Coke Lit. 183, a. This rule should be applied, in this case especially, for two very apparent reasons: First, because it was well understood, by both parties, with what machinery alone these hookheaded spikes could be successfully made for sale in market, and that the defendants were then using that machinery in their works; and, secondly, because Burden had a strong pecuniary motive to deal in generalities, and not to grant, specifically and clearly, a license to use the bending lever. He feared he might jeopard the thirty per cent., secured to him by the agreement of December 2d. 1836, and which,was afterwards in controversy,. and was claimed by the plaintiffs to have been forfeited by him; and yet he desired to obtain the monopoly of the horseshoe business. The contemporaneous exposition of the agreement, by Burden, Troy Iron and Nail Factory v. Corning et al. is in accordance with the position of the defendants. See his letter of December 15th, 1845, and his letter of December 11th, 1846. In this latter letter, Burden speaks of his intention to share the spike business with defendants. He very well knew that could not be done, except by uniform prices, and that we could have no uniform price with him, unless we used the bending lever. But there was an actual sharing between appellant and respondents, of contracts for spikes. Burden declared that it was his intention to share with respondents the spike business, and this was done, as is shown by his letters. Such was, the practical contemporaneous construction of the agreement, and it appears, by Burden's letter of February 10th, 1848, that not only was there to be an uniform price for hook-headed spikes, but. that the whole field was to be occupied by the parties in common, and to the exclusion of all others. The whole object of this letter was to tell respondents what he had been doing to protect their common rights. Can there be any thing more needed to show that it was the understanding of both parties, that by the agreement of October 14th, 1845, respondents had the right to use the bending lever? Winslow's letters, written in January, 1845, show that respondents were using the bending lever at that time, and that Burden then knew it. In Burden's letter of January 10th, 1845, and in Winslow's reply to it, of January 13th, 1845, they both refer to “the machinery in question," which can only mean the bending lever. IV. But whatever might have been the construction which a court would, under other circumstances, have put upon this agreement a Court of Equity will not now grant an injunction, as is prayed for in the complainants' bill, after an acquiescence in the use of the patented machinery, under this agreement of October 14th, 1845, for near three years before the commencement of this suit. Wyeth v. Stone, 1 Story, 273; Rundle v. Murray, Jacob's R. 311; Williams v. the Earl of Jersey, 1 Craig & Phil. 91; Warwick v. Hooper, 3 Eng. Law and Eq. Rep. 233, cited; U. S. Dig. Appendix, vol. 5, 1851, title Patent. Mr. Justice WAYNE delivered the opinion of the court. This is an appeal from the Circuit Court of the United States for the Northern District of New York. The appellants are a manufacturing company, incorporated by the laws of the State of New York. They aver, that Henry Burden was the inventor of a new and useful improvement in the machinery for manufacturing wrought nails and spikes, for which letters-patent were granted to him, on the 2d of Decem VOL. XIV. 18 Troy Iron and Nail Factory v. Corning et al. ber, 1834. They allege that it was assigned to them, for a valuable consideration, and also, that Burden covenanted with them, if he should thereafter make any improvement upon his invention, that he would convey the same to them. Burden afterwards did make a new and useful improvement in machinery for making hook or brad-headed spikes, for which a patent was granted to him, on the 2d of September, 1840. He assigned it to the complainants, in virtue of his covenant, whereby they became the exclusive owners of the patent. They then complain that the defendants had infringed the same, by having erected and put in use, in their iron and nail works, in the city of Troy, four or five machines for the manufacture of hook, or brad-headed spikes, containing the improvements in their assigned patent, and had used them for manufacturing hook, or brad-headed spikes, since the 15th of October, 1845. It is also stated, that Burden brought an action at law against the defendants, for an infringement, secured by the patent of September 2d, 1840. The defendants resisted a recovery, upon the ground that Burden was not the first inventor of the improvements for which that patent had been obtained. A trial of this case, upon the merits, resulted in a verdict for Burden, for seven hundred dollars, which was carried into a final judgment against the defendants, after a motion which they made for new trial had been overruled. The defendants are then charged with again using the improvements in the patent of 1840, under the pretence that they h. ve a license from Burden to do so. This is denied by the complainants; and they say, if such license had been given by Burden, that it was in contravention of his assignment to them of his patent, by which they became the legal and equitable owners, from the time it was granted, on September 2d, 1840. The bill is then concluded, with a prayer that the court would enjoin the defendants, Corning, Horner, and Winslow, their attorneys, and agents, and workmen, to desist from making, using, or vending, any machine containing the improvements, for which letters-patent were granted to Burden, on the 2d of September, 1840; and, from selling or using any spikes which they then had on hand, which had been manufactured by their machines containing the improvements of that patent. account of the profits, which they had derived from the use of such patented improvements, is also called for. An The letters-patent granted to Burden, on the 2d day of September, 1834, and that of the 2d of September, 1840, describing an improvement called a bending lever, in the machinery for making hook or brad-headed spikes, are made exhibits to the bill. Troy Iron and Nail Factory v. Corning et al. This bill was answered by the defendants. It admits that the complainants were an incorporated body, under the style of the Troy Iron and Nail Factory Company; also, that Henry Burden was the inventor of the improvements in the machinery for making nails and spikes, for which letterspatent were granted to him in December, 1834, and that he assigned the same to the complainants two years thereafter. But they deny that there was any covenant in the assignment, or in any other agreement then recorded in the Patent-Office, or any agreement between Burden and the complainants, obliging him to convey to them any improvement which he might make upon his invention. And they insist, if such an agreement was made, that, as it was only a covenant to convey a contingent possibility, which would be inoperative and void, and could not affect them. The defendants also admit that Burden obtained the patent of 2d September, 1840; but they deny its validity. They declare that the bending lever, described in the specification of it, or one similar to it in form and principle of construction and operation, had been invented and had been used by several persons in making spikes for several years before the patent had been obtained by Burden for his improvement of the bending lever. They state that it was invented by Thomas and William Osgood, and used by them in the years 1835, '36, '37, '38, upon one of their spike machines, to make hook or brad-headed spikes, which they sold during those years in Philadelphia. It is also stated by the defendants, that the bending lever, patented by Burden, was the invention of one Ebenezer Hunt, whilst he was in the employment of the former. It is then admitted that Burden assigned to the complainants his patent for the bending lever, in June, 1848; but it is said to have been fraudulently done, and that the appellants have no right, legal or equitable, to that improvement, under that assignment, or by that of the agreement between the complainants of Burden, of December, 1836. And, it is added, should they have any right or interest in the patent for Burden's bending lever, that the defendants have also the right to use the same under an agreement with Burden of the 14th October, 1845, which was made for himself, and in behalf of the appellants, as their agent, before he had assigned it to them in 1848. The defendants then aver, that this agreement of the 14th October was made with the understanding of both parties; that it would finally settle all differences between theinselves and Burden and the complainants, which had arisen out of counter claims by both parties to a patent for making horseshoes, and also to a patent-right for making hook or brad-headed spikes, each party claiming the right to manufacture and vend Troy Iron and Nail Factory v. Corning et al. such horseshoes and such spikes, under their respective counter claims and patents, without the permission of either to the other, and to use, in the manufacture of the brad-headed spike, Burden's bending lever. The consideration of the agreement is said to have been purchase by the defendants from the complainants, of an undivided half part of a dock on the Hudson River, for $1,500,a grant by the defendants to them for the exclusive manufacture of patent horseshoes, and a mutual relinquishment of their counter claim to the patents for making hook-headed spikes by a bending lever. It is averred, that they had used Burden's bending lever in the manufacture of such spikes, from the date of the agreement, with his knowledge, without objection by him. or by the appellants, and that Burden had discontinued the suit against them. It is not necessary to state more of the pleadings. The abstract given discloses what had been the relations between these parties for several years before this suit was brought, and their views and conduct respecting the patent for the bending lever. We will now turn to the evidence in the case. It shows, first, that every allegation in the bill has either been proved or admitted by the answer of the defendants, excepting such as they respectively make concerning the agreement of the 14th October, 1845, which will hereafter have our attention. The letters-patent obtained by Burden, in 1884, which describes a machine for maling nails and spikes, is annexed as an exhibit to the bill, and so is that afterwards granted to them, in 1840, for his improvement on the first, for making hook or bradheaded spikes. The answer admits that he was the inventor of the first, and that he had a patent for it. It also admitted that he obtained a patent for the other; but it is denied that he was the inventor of it. This the defendants have failed to prove; and, in our opinion, the evidence given by them on that point rather serves to establish the originality of the invention than to impair it. We think so, because it is uncertain and conflicting, and, as our learned brother said concerning it in the court below, is irreconcilable. The appellants stand upon that patent as the first which was granted for the bending lever, and they may well do so, until other evidence than that in this record shall be given to disprove its originality. It is admitted that Burden assigned that patent also to the appellants; but it is said to have been fraudulently done, and that it was not made, because Burden had covenanted, in his assignment to them of his first patent, to convey to the appellants any improvements he might thereafter make upon that machine during the time that the patent had to run. The assignment by Bur |