Opinion
March Term, 1903.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
There is no theory upon which this verdict can be permitted to stand. The contract contains no express provision for a formal assignment in writing of the plaintiff's interest in the patent, but such an assignment being essential to pass title, the law will imply an agreement to make it. The plaintiff, however, was under no obligation to part with his title until the defendants fully paid the purchase price of his interest in the patent. Undoubtedly under section 4898 of the Revised Statutes of the United States, if the plaintiff should assign his interest in the patent to an innocent purchaser for a valuable consideration good title would pass as against the defendants. There is, however, nothing to indicate that the plaintiff intends to perpetrate a fraud on the defendants by thus parting with the legal title to a third party. If there were, that might be ground for injunctive relief, but it has no bearing on the issues presented here. If the defendants apprehended any such action on the part of the plaintiff they should have protected themselves on or before executing the agreement. They need not have executed the agreement if they could not have been protected otherwise, unless the plaintiff consented to transfer title at once. This, however, is not the fair construction of the agreement as made. If, as contended by the defendants, a formal assignment was to be delivered on their making the first payment, which at their election might have been in cash, there would have been no necessity of incorporating the election clause with reference to the first payment, for if they were to pay cash the only agreement necessary was an agreement on their part to pay the balance and such agreement with reference to security therefor as the parties saw fit to make; and, if it was then understood that they were not to pay cash, the first provision with reference to a cash payment would have been omitted, and it would have been provided that upon the delivery of the first twenty-five looms the plaintiff was to deliver a formal assignment. We think the agreement is not ambiguous and that it was not subject to explanation by parol evidence. At the time of making the last payment of the purchase price by the defendants, either in cash or by the tender of the delivery of the looms, they will be entitled to the delivery of a formal assignment in writing of the plaintiff's interest in the patent, but not until then. It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. Van Brunt, P.J., O'Brien, Ingraham and McLaughlin, JJ., concurred.