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806 ATLANTIC REPORTER. [R. I.

jr«je V. Le ITeoe, 2 White & T. Lead. Cas. Eq. (4th Amer. Ed.) pt. 1, p. 189.
In the notes to the case cited the law is thus stated: "It is thoroughly well
established that a purchaser will have constructive notice of everything which
appears in the deed or instruments which prove and constitute the title, and
is of such a nature that, if brought directly to his knowledge, would be actual
notice. This is the more obvious because the right of a purchaser cannot go
beyond his title, and whatever appears on the face of the title-papers forms
an integral part of the title itself." The purchaser of an interest in Sachuest
Beach could not trace his title without coming to the vote of the town under
which the beach was conveyed to Jonathan Easton, and there learning that
authority to make the conveyance was dependent on said Easton^ s giving the
bond.

The defendant also contends tliat tlie town cannot maintain the suit be-
cause it is not a party to the bond. The bond was taken in the name of
Thomas Gould, treasurer of the town of Middletown, but evidently for the
benefit of the town. Doubtless the town, in order to sue upon the bond at
law, would be obliged to have administration taken out on the estate of Thomas
Gould, and sue in the name of the administrator; but it seems to us that to
require it to do so in equity at this late day would be to require the observance
of a mere technicality, which can be dispensed with without the possibility of
harm to anybody. We do not tliink the suit should be dismissed on such a
ground.

It is further objected that the condition of the bond ought not to be enforced
because it is repugnant to the grant, since it allows the inhabitants of Mid-
dletown to take and carry a way sand and gravel from the beach without stint,
the effect of which in time will be to destroy the beach or to remit it to the
sea. We do not think the objection is tenable. The right, as we construe it,
is not without stint; for, being reserved to the inhabitants of the town, we
think it must be construed as exercisable for use by them in the town, and
not elsewhere. An inhabitant of the town cannot be permitted to cart away
the sand or gravel for use or sale in Newport or in any town but Middletown.
The case resembles Oreen v. Putnam, 8 Cush, 21. In that case it was held
that a vote by the proprietors of Worcester, in 1733, recorded in their record,
"that one hundred acres of the poorest land on Milestone Hill be left common
for the use of the town for building stones, " constituted a grant of the quarry
to the town, not for their use in a corporate capacity, but for the use and
benefit of those only who were or might become inhabitants thereof, for all
purposes for which such materials, in tlie progress of time and the arts, might
be made useful; and that the use of the stone for building purposes without
the limits of Worcester, by inhabitants of other towns, was a violation of the
grant, and so far as the defendant, who was an inhabitant of Worcester, had
procured stone for such purposes, he was liable for so doing. See, also, In-
habitants of Worcester v. Oreen, 2 Pick. 425, and Hall v. Latj[>rence, 2 R. I.
218. Doubtless the beach might have been conveyed to Jonathan Easton sub-
ject to a condition that he would allow to the inhabitants of Middletown the
rights and liberties mentioned in the bond ; in which case the rights and lib-
erties, if not allowed, could have been secured by a forfeiture of the estate.
It seems to us that the bond, if possible, should be made as effectual As we
have seen, the beach came to the town under a vote of the proprietors to re-
linquish "all their rights and title in the common land of Sachuest Beach, to
be by said town managed, from time to time, forever hereafter, as an estate
belonging to said town." The town, having accepted the grant, ought, act-
ing in good faith, to have kept the beach; and doubtless it intended, when it
sold the beach, to carry out the purpose of the proprietors by requiring the
bond. The bond was an essential part of the transaction by which the beach
passed to Jonathan Easton, and entered into the very texture of his title.
We think it not probable but that this character of the title has been under-



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Pa.] APPEAL OF REEBB. 807

stood, as it has been until quite recentl7 duly regarded, by the subsequent
holders. It seems to us to be just and equitable in the highest degree that
the defendant, the present owner, should be required to allow to the inhabi-
tants of Middletown the rights and privileges secured by the bond in the same
manner as Jonathan Easton could himself be required* to allow them ifstiU
livings and we will enter a decree against the defendant accordingly.



Appeal of Small et uoj.
(Supreme Cmirt of Pennsylvania. October 1, 1888.)

Judgment— Res Adjudicata— Effect of Dismissal— Appeal.

The lands sought to be partitioned had in previour proceedings in the same court,
for the partition of those and other lands, been awarded to appellant, but the pro-
ceedings had been set aside, and petition dismissed, by the court, an appeal from
which was pending. Held, that the first proceedings were not a bar to tne second,
without a reversal of the decree in the first case.

Appeal from orphans' court, Nortliumberland county: William M. Rock-

EFBLLEIJR, «J •

Petition by William I. Greenough for partition of the land sought to be par-
titioned in SmalVs Appeal, ante, 767; the petitioner being the alienee of the
interest of John Youngman. Susan E. Small and Bruce Small, her husband,
objected to the jurisdiction on the ground of the pendency of the previous
proceedings, and of the award to her in severalty therein made of the land
now sought to be partitioned. From the decree confirming the inquest, and
overruling their objections, they take tliis appeal. ^

William A, Sober, for appellants. S. F. Wolven^ton and Chas. M. Clement,
for appellee.

Sterrett, J. This proceeding in partition, commenced in OctobeT. 1886,
by William I. Greenough, alienee of John Youngman, one of the devisees of
John G. Youngman, deceased, was resisted by appellant, Mrs. Small, on the
ground that the lands in question were then held by her in severalty under
and by virtue of prior proceedings in partition, in same court, embracing the
same lands. In support of her exceptions, she relied on the record of^that
case, which has just been before us on an appeal from the final decree setting
aside all proceedings therein, and dismissing the petition on which they were
grounded. That decree, as will be seen by reference to SmalVs Appeal, ante,
1^1, has just been affirmed. In disposing of appellant's exceptions in the
present case the learned judge of the orphans' court rightly held that the pro-
ceedings in the former case, which were set aside nearly six months before the
petition in this case was presented, could not be interposed as a bar to this
proceeding, unless the final decree in the other case was first reversed by this
court. That has not been done. On the contrary, the decree has been af-
firmed; thus definitely settling the fact that the former proceedings were null
and void for want of jurisdiction. It follows, therefore, that there is nothing
left to support the specifications of error based on the record of those proceed-
ings. We find nothing in any of the specifications that requires special no-
tice; or that would warrant a reversal of the decree. The decree of the or-
phans* court, confirming the report of the inquest, is affirmed, and the appeal
dismissed, at the costs of appellant; and it is ordered that the record be re-
mitted for further proceedings.



(122 Pa. St. 892) . , . ,

Appeal of llEESE.
{Supreme Court of Pennsylvania. October 1, 1888.)

1. Patents tor Inventions— Agreement for Assignment— Constuuction.

An agreement by an inventor to sell and assign **tbe exclusive right to use all and
evexy patent, either granted or applied for, together with all renewals, reissues,



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J



808 ATLANTIC BEPORTEB. [Pa.

or improyements of the siame, which can be used, or relate or apply, in any way
to the Bessemer or pneumatic process in the United States, " which agreement, l^
a supplemental stipulation, was made to embrace any and all process, etc., that the
inventor might thereafter invent, requires him to transfer whatever "inventions'*
relating to said process had been made bvhim at the date of the agreement, whether
he had at that time obtained patents therefor, applied for them, or not; the term
"improvements,.'' as used, meaning inventions.

B. Sahb.

An agreement that "the said assignments shall also cover and embrace any and
all reissues, renewals, improvements, or extensions of the said letters patent now
issued, or which may hereafter be issued under the said applications, or any modi-
fications thereof, and any and every of them, " binds the inventor to transfer what-
ever inventions were made by him at the date of the agreement in relation to the
various subjects described in the contract, though they were not then patented, and
applications for patents had not then been made.

8. Same.

An agreement to assign all patents "relating to or connected with the manufact-
ure of pig-iron, iron or steel ingots, blooms and billets, and the conversion or treat-
ment of iron or steel into rails, blooms, billets, or plates, " requires the assignment
of two classes of patents,— one relating to the manufacture of pig-iron. Iron or steel
ingots, etc., and the other to the conversion or treatment of iron or steel into rails,
blooms, etc. The word "and" is used in the cumulative, and not in the combined,
sense.

4. Same— Spboipic Performance— Equity— Jubisdiction.

Equity will enforce specific performance of such agreements.

Appeal from court of common pleas, Allegheny county.

Action by the Bessemer Steel Company, Limited, against Jacob Reese and
the Harrison Wire Company, to compel defendant Reese to assign certain
patents to plaintiff, and enjoin him from otherwise disposing of the same, and
to cancel certain assignments made by said Reese to the Harrison Wire Com-
pany. Decree adjudging plaintiff to be entitled to the relief prayed for on
payment to defendant Reese of $32,110.83. Defendant Reese appeals.

D, T, Watson and S. A, McClung, for appellant. John Dalzell and Geo,
B. Gordon, for appellee.

Green, J. The chief contention ot the parties to this litigation is upon the
terms of their contract relation. That relation is evidenced by four distinct
writings, which, while executed at different times, and not always by the same
parties, are material, if not essential, in interpreting the stipulations involved
in the controversy. They are "the Carnegie option," of September 4, 1879;
the contract of September 25, 1879; the supplemental paper of November 5,
1879; and the new and final agreement of September 20. 1881. The first of
these was a letter signed by Reesp, and addressed to Carnegie; the second was
a formal contract made between Reese and the Bessemer Steel Company,
Limited; the third was supplemental to the second, signed by Reese alone;
and the fourth is a new agreement made by Reese and Carnegie, drawi ig to
it, by express reference and appropriate words, both the main contract with
the Bessemer Steel Company, Limited, and the supplemAnt tJiereto, bi.t yet
adding new terms, and changing others contained in the previous papers. By
proper instruments made with the sanction and by the desire of Reese, what-
ever was personal to Carnegie in these several papers was turned over to tJie
steel company; so that that company became the depositary ot wnatever rights
and interests were vested ostensibly in Reese, in addition to those conferred
upon the company by direct contract. The papers are continuous, and all re-
late to each other, and to subject-matter common to all.

The controversy is upon the question whether the defendant was bound to
assign to the plaintiff inventions, as well as patents and applications for pat-
ents, in existence on September 25, 1879, the date of the principal contract.
The master held that inventions were included in the contract, but limited
them to such as related only to the manufacture of iron or steel into rails, ingots,
and billets, and denied that they included such as were connected with the



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Pa.] APPEAL OF REESE. 809

metallurgy ot iron or steel. The court held that all inventions which related
to both these subjects were included, and decreed that the defendant must as-
sign both classes. The defendant contends that both master and court were
in error in holding that any inventions not patented, or patents applied for, at
the date of the contract, were included within its operation. The decree ad-
judged that the plaintiff was entitled to have a conveyance of "those inven-
tions which belong to the defendant at the date of the said agreement* to- wit*
on September 25, 1879, whether said inventions were then patented, or appli-
cation had been made for letters patent, or not, if subsequently thereto letters
patent were applied for, which related to or were connected with the manufact-
ure of pLg-iron, irop or steel ingots, blooms and billets, and the converting or
treating of iron or steel into rails, blooms, billets, or plates/' .And the decree
further .adjudged as follows. "And the uaid plaintiff is also entitled to have
conveyed to it by said defendant, in and by the supplemental contract of date
November 5, 1879, all such inventions as were tendered to it by the said de-
fendant, and by it accepted, but no others; for the reason that said contract is
unilateral, and has been rescinded by the action of defendant; and, in addition
to the foregoing, all reissues, renewals, inprovements, or extensions of the
letters patent issued for the same. " The decree further specified the inventions,
applications, and letters patent which should be assigned by defendant;
directed the plaintiff to pay defendant $32,110.83 upon the making of the said
assignments, all the costs of the case, and a master's fee of $1,000. The defend-
ant was also enjoined from selling orassigning any of the specified inventions,
applications, or letters patent, or from granting any licenses for using the same,
and the grant made to the Harrison Wire Company was declared void. The
defendant, who is the appellant, contends that this decree is erroneous, chiefly
because it includes patents and applications for patents which had no exist-
ence on September 20, 1879, the date of the main contract, and inventions
which are not embraced within the meaning of that contract. So far as the
patents and the applications are concerned, they are found by the court below
to be for inventions which the defendant was bound to hold for the plaintiff,
and to assign to it at the proper time, by force of the contract between the
parties. If this finding was correct, the circumstance of the patents and ap-
plications in question being subsequent in date to the contract becomes im-
material; and the inquiry is narrowed down to the question whether inven-
tions are embraced within the meaning of the contract as well as patents and
applications.

The supplemental agreement of IS'ovember 5, 1879, expressly stipulates " that
the foregoing instrument (the contract of September SK), 1879) shall embrace
in and among the inventions and improvements which I shall be bound there-
under to assign and transfer to the said Bessemer Steel Company, Limited, any
and all processes in the metallurgy of iron and steel, or devices for the manipu-
lation of the same, relative to the manufacture of pig-iron, iron or steel ingots,
blooms, billets, and plates, which I may hereafter invent, or apply to have
patented, during the continuance of the foregoing agreement; and also any
letters patent which may issue for such processes or devices: provided, the
said Bessemer Steel Company, Limited, shall elect to take, own, and possess
the same; such processes and devices when transferred to the said company at
its request to be subject to all the provisions of the foregoing agreement, with
the same effect in all respects as if they had originally been mentioned therein. "
Depending onlv upon the election of the company, the subsequent inventions,
together with the subsequent applications for patents therefor, and patents
actually granted, were clearly brought within the operation of the original
contract, and made a part of it. As the decree applied only to such of these
as were tendered by the defendant, and accepted by the plaintiff, of course
there could be no error in the decree so far as it embraced inventions made after
the date of the supplemental contract. This leaves only remaining such inveu-



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810 ATLANTIC REPORTER. [Pa»

tions as were previously made, but for which no patents had been issued, nor
applications for patents made. The question is, were such inventions in-
cluded within the meaning of the contract of September 20, 1879 ? They were
not expressly named. But were they not intended to be embraced in its opera-
tion? It is difficult to understand why the parties should, by a subsequent
and supplemental stipulation, expressly declare that the original contract
should embrace any and all processes, etc., which the defendant might there-
after invent, and not provide, by either the original or supplemental agree-
ment, that it should embrace the inventions which had already been made
when the original agreement was executed, except upon the theory that both
parties considered that the latter class of inventions were already included.
A strong inference of such an intent in the original agreement arises from the
mere fact that the defendant declared in writing subsequently that all- the in-
ventions which he should afterwards make should be embraced within the
operation of the first agreement. But a still stronger inference to the same
eifect flows from the peculiar language employed in the second agreement when
referring to the first. The words are these: "It is also agreed that the fore-
going instrument shall embrace in and among the inventions and improve-
ments which I shall be bound thereunder to assign and transfer to the said
Bessemer Steel Company, Limited, any and all processes, " etc. That is to say,
there are certain Inventions and improvements which I am bound to assign
and transfer by the original agreement, and among them shall be such as I
may hereafter invent. Clearly, and independently of a reading of the original
agreement, here is a distinct and solemn assertion, not recognition merely, of
the fact that Inventions were embraced witliin its meaning, and within its ob-
ligatory operation; for the words are, "which I shall be bound thereunder to
assign and transfer.*' But furtlier in the original agreement itself provision
is made for "the inventions, methods, and processes covered by applications
for letters patent made by the said party of the first part which are now pend-
ing in the patent-office of the United States, as well as the letters patent which
may be issued thereon," for three described processes and inventions. These
constitute the second class of subjects to be assigned by the contract, and the
third is described in the same continuing clause of the contract, thus: "To-
gether with all other letters patent, and applications therefor, if any, which be-
long to the party of the first part, relating to or connected with tlie manufact-
ure of pig-iron, iron or steel ingots, blooms and billets, and the conversion or
treating of iron or steel into rails, blooms, billets, or plates; and together, also,
with any arid all rights, if any, which the said party of the first part hiis, to
receive or recover royalties from parties who have by him been licensed to use
any of the said patents, processes, or inventions in such manufacture, conver-
sion, or treating. " The agreement next provides that the assignments of pat^
ents then existing shall be made as soon as possible, and of patents which may
be issued under the applications as soon as possible after they are issued; and
then stipulates as follows: "The said assignments shall also cover and em-
brace any and all reissues, renewals, improvements, or extensions of the said
letters patent now issued, or which may hereafter be issued under the said
applications, or any modification thereof." Turning now to the Carnegie
letter, September 4, 1879, which was the origin of the whole transaction, we
Qnd that the subjects of the future assignments are very broadly described.
Thus: "In consideration," etc., "I hereby agree to transfer^ sell, assign to you,
the exclusive right to use all and every patent, either granted or applied for,
together with all renewals, issues, or improvements of the same which can be
used or relate or apply in any way to the Bessemer or pneumatic process in
the United States." We are seeking for the intention of the parties as to in-
ventions, relating of course to the subject-matter, which had already been
made, but neither patented nor patents applied for at the date of the contract,
but for which applications were subsequently made, and for some of which



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Pa.] APPEAL OF REESE. 811

patents were issued. They are described in part in the master ^s supplemental
report. The term "improvement" is a technical one in the patent practice,
and Ls almost always used to designate the invention itself in making out ap-
plications. Thus, in the master's report, he describes numerous applications
for patents which the defendant notified the plaintiff, on December 31, 1880.
he had made, accompanied by a statement of his expenses in connection there-
with. In all of them the invention is described as an "improvement" or "im-
proved process" or "improved method." We find nothing, therefore, in the
use of the word "improvements," which confiicts with its being intended to
convey the same idea as the word "inventions. " On the contrary, it is manifest
they were used as synonymous throughout all the papers which passed between
the parties. We are clear, therefore, that when the defendant stipulated in
his letter of September 4, 1879, that he would sell and assign "the exclusive
right to use all and every patent, either granted or applied for, together with
all renewals, reissues, or improvements of the same, which can be used, or
relate or apply, in any way, to the Bessemer or pneumatic process in the United
States," he undertook to transfer whatever inventions he had then made re-
lating to the "Bessemer or pneumatic process," whether be had at that time
obtained patents therefor, applied for them, or not. It seems to us that good
faith requires this interpretation. Otherwise he could hold back important
inventions which in point of fact were improvements upon patents then is-
sued, or for which applications were then made, and, by incorporating them
into subsequent patents or applications, use them to the injury of the plain-
tiff. So, also, when the defendant agreed in the contract of September 25,
1879, that "the said assignments shall also cover and embrace any and all re-
issues, renewals, improvements, or extensions of the said letters patent now
issued, or which may hereafter be issued, under the said applications, or any
modifications thereof, and any and every of them," he must be held to have
agreed to transfer whatever inventions he had then made in relation to the
various subjects described in the previous part of the contract, although they
were not then patented, or applications for patents for them were not then
made. An improvement upon a patent then issued, or an application then
made, might very easily be an invention which the defendant had then made,
but withheld both from patent and application. If it were so, in reality the
plaintiff would be entitled to the benefit of it, though in very words "in-
ventions then made" were not enumerated as subjects of assignment. Of
course, if it were not so in fact, the plaintiff would not be entitled to it. It
seems also from the testimony that the defendant himself so understood bis
contract, as he tendered several patents which covered inventions made prior to
September 25, 1879, as appears by his letter of April 3, 1882. Without dwell-
ing further upon this subject, we think the court below was right, as well as
the master, in their views upon this branch of the case.

As to the other branch, in which the master held that the expression, "To-



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