Springfield v. Drake , 58 N.H. 19 ( 1876 )

It does not appear that Bickford had conveyed his title to the company at the time of the plaintiff's appointment; and the defendant claims that, his principal having no apparent title, the agent's conveyance would not be a sufficient consideration for the note. The defendant obtained the patented machine for sale under his assignment, and he was never disturbed in the full use of all the rights he supposed he acquired under it, and for which he gave his note.

The general doctrine upon this subject appears to be, that when the vendee has not been disturbed in the exercise and use of his rights as conveyed, he is not in a situation to call upon the vendor, in an action for the purchase-money, to establish his title to the thing sold. Buss v. Putney, 38 N.H. 47; Bartlett v. Holbrook, 1 Gray 114; Stevens v. Head,9 Vt. 174. If it is material to his defence that the vendor's want of title appear, the burden is upon him to prove it.

The defendant excepted to the charge of the court, that the plaintiff could convey to the defendant, by verbal assignment, the rights he had under his appointment.

A patent is personal property — Holden v. Curtis, 2 N.H. 63 — and, if it were not for the law of congress, could be conveyed by parol. Buss v. Putney, before cited. The plaintiff conveyed to the defendant, by the verbal assignment, the authority and license he had of the company to canvass and sell the machine in three towns in Carroll county, and to have the machine furnished him at wholesale prices, retaining the retail profits as pay for his services. This was not a conveyance of any interest in the monopoly conferred by the letters patent. It was a mere assignment of the plaintiff's license to canvass and sell for the owner in those towns, and not required to be in writing. Gayler v. Wilder, 10 How. 477.

The defendant's objection, that the plaintiff had not authority to make the assignment, is not well taken. The appointment provides that the plaintiff may do the work, or cause others to do it, which is sufficient to authorize the making of the assignment. If there had been no prior authority, there was a subsequent ratification. A ratification is equivalent to prior authority. Despatch Line v. Bellamy, 12 N.H. 232; Davis v. School District, 44 N.H. 407.

Upon the question of fraud, the court charged the jury that the plaintiff must have stated what was false, and known to be so, or not known to be true, on a point material to the contract, in relation to a matter not equally within the knowledge of the defendant, and by which the defendant was actually misled to his injury.

We think this a correct statement of the law. Hoitt v. Halcomb,23 N.H. 535, 552; Gage v. Gage, 29 N.H. 543.

Judgment on the verdict.