Brown v. Atwell, Administrator

• Decision Date: 01 October 1875
• Citation: 23 L.Ed. 511,92 U.S. 327
• Parties: BROWN v. ATWELL, ADMINISTRATOR
• Court: U.S. Supreme Court

92 U.S. 327

23 L.Ed. 511

BROWN v. ATWELL, ADMINISTRATOR.

October Term, 1875

MOTION to dismiss a writ of error to the Supreme Court of the State of New York.

Mr. James Flynn, for the defendant in error, in support of the motion.

Mr. John B. Gale, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

Scott brought this action against Brown & Stone, in the Supreme Court of Rensselaer County, New York, alleging in his complaint that one Neer was the owner of a patent for a certain improvement in fire-places and stoves; that Neer had transferred the patent to Scott, who was the owner thereof; that Brown & Stone, being partners engaged in the sale of patent-rights, and having made sales of this patent while it belonged to Neer, continued to do so after its transfer to him, for which they had never accounted. He asked for an account, and judgment for such an amount as should be found due.

Brown & Stone answered, denying generally all the allegations in the complaint.

Stone having died, his death was suggested on the record; and, the cause proceeding against Brown, the issues were referred by stipulation of the parties to a referee for trial. The referee, having heard the case, reported that Scott was the owner of the patent; that Brown & Stone had made sales of the patent in different localities; and that Brown, as survivor, was bound to account to Scott for the proceeds of the sales. After the testimony on the part of the plaintiff was all in before the referee, Brown moved for a nonsuit, assigning for cause, among others, 'that under the acts of Congress of the United States concerning letters-patent, and especially the Patent Act of 1836, and especially sect. 11 of that act, Scott's title, interest, and rights were unaffected by the sales made by Neer and by Stone as his attorney, and therefore that plaintiff has no claim herein based on any such sale.' The referee denied the motion. Brown excepted, and then proceeded with his own testimony. No other question was made before the referee as to the effect of the patent laws upon the rights of the parties. Numerous exceptions were taken to the report; but not one of them presented directly any question under these laws. The ruling of the referee on the motion for the nonsuit was not mentioned as one of the exceptions. A judgment was entered against Brown at the special term upon the report, from which an appeal was taken to the general term, where it was affirmed. The record does not show that any question under the patent laws was presented or decided in that court. From the judgment at the general term an appeal was taken to the Court of Appeals, where that judgment was affirmed.

After the judgment was rendered in the Court of Appeals, the following entry was made as part of the record of that court; to wit:——

'On the argument of the appeal herein before this court, it was claimed by said appellant Brown that the act of Congress of the United States, commonly called the Patent Act of 1836, and especially sect. 11 of said act, governed and determined the effect of the several transfers appearing in this case relative to the letters-patent issued to Neer, and determined the right in said patent of all concerned therewith; and that by said act and sect. 11, and the application thereof to the facts shown by the record herein, Scott, at the times of the sales and deeds for proceeds whereof judgment was recovered...