Jolliffe v. Collins

• Decision Date: 31 July 1855
• Citation: 21 Mo. 338
• Parties: JOLLIFFE & HOLLAND, Appellants, v. COLLINS & OTHERS, Respondents.
• Court: Missouri Supreme Court

21 Mo. 338

JOLLIFFE & HOLLAND, Appellants,

v.COLLINS & OTHERS, Respondents.

Supreme Court of Missouri.

July Term, 1855.

1. Where a bill of sale of a patent right is a simple transfer of title, containing no warranty, the purchaser cannot set up a parol warranty.

2. In order to make a representation a ground for an action of deceit or fraud, it must have been known to be false, and have been made with intent to deceive.

3. As to what is a useful invention.

4. A note given for a patent that is void, by reason of its being useless, is without consideration.

5. In an action for a balance due upon a note given for a patent right, to which the defendant pleads merely want of consideration and deceit, he cannot have judgment for money paid upon the note.

6. A certificate to a deposition that it was reduced to writing in the presence of the witness, and subscribed in the presence of the officer, is sufficient, although it omits to state that it was reduced to writing in the presence of the officer.

Appeal from Andrew Circuit Court.

Action for a balance due upon a bond for the direct payment of money. The defendants answered that the bond was given for the right to make, use and vend in certain counties in Indiana a patent right improvement in a revolving hay rake, and set up in substance three pleas: 1st. Want of consideration, because the patent right was useless and void. 2d. Fraudulent and deceitful representations in regard to the utility of the improvement, and 3d. Representations which amounted to a warranty. They ask judgment against plaintiffs for the amount paid upon the bond.

At the trial before a jury, the defendants read in evidence the depositions of various witnesses taken before a justice of the peace in Indiana. The certificate of the justice stated that the examinations were reduced to writing in the presence of the several witnesses, and subscribed by them in his presence; but did not expressly state that they were reduced to writing in his presence. The judge, in his certificate to the official character of the justice, stated that he was a justice of the peace within and for the county, ““duly elected, commissioned and qualified.” An exception was taken to the overruling of a motion to suppress these depositions. The witnesses testified in substance, that the plaintiffs, about the time of the sale of the patent right improvement, publicly represented that it was very valuable and a great saving of labor, and that in fact it proved to be of no utility, and was not used by the farmers. The plaintiffs then read in evidence the bill of sale from them to the defendant. It was a simple transfer of all their right, title and interest in the patent in and for certain enumerated counties, and contained no warranty or affirmation as to the utility or value of the improvement.

The court instructed the jury as follows:

“If the patent right improvement was worthless and of no value, they will find for defendants the amount paid upon the same as set up in their answer.”

“If the jury believe from the evidence, that the consideration of the bond sued upon was a certain improvement invented in the revolving hay rake, and that plaintiffs represented the same to defendants to be a useful and valuable invention, which representations were relied upon by defendants, and were untrue and the said invention worthless, they will find for defendants; but if such representations were not made, and if made, not relied upon by defendants, they will find for plaintiffs.”

Several instructions asked by defendants were refused, one of which was to the effect that the defendants were not responsible for representations made unless they knew them to be false.

The jury returned a verdict for the defendants for the amount paid on the bond.

Hall and Gardenhire, for appellants.

1. The depositions should have been suppressed. The statute requires that they should be reduced to writing in presence of the officer. (R. C. 1845, tit. Depositions, § 14.) The certificate must show that the requisites of the law have been complied with. (1 Peters, 351, 356.) 2. There was error in the giving and refusal of instructions. (2 Croke, 4. 2 Esp. 572. 31 Eng. C. L. Rep. 116. 8 Blackf. 518. 19 Wend. 159. 1 Dana, 611. 2 Kent's Comm. 479. 15 Mo. Rep. 410. 8 Mo. Rep. 394. 1 J. R. 129, 453, 274. 4 J. R. 421. 5 J. R. 354. 20 J. R. 196. 9 Watts, 55. 1 Denio, 385. 7 Cran. 92. 2 Bibb, 616.11 Mees. & Wels. 401. 24 Mees. & Wels. 651, 663. 21 E. C. L. Rep. 218. 4 Blackf. 57. 6 Barbour, 557. 7 Serg. & R. 681.)

Vories, for respondents.

1. The certificates to the depositions show that they were reduced to writing in the presence of the witness, sworn to by him and subscribed in the presence of the officer, which sufficiently shows that they were reduced to writing in the presence of the officer. 2. The instructions given were correct. He who sells an article for a particular purpose, making statements at the time of the sale as to the utility and usefulness of the article sold to induce another to purchase, such other relying upon the representations, is bound to make the representations good. (2 Cow. 129. 5 J. Ch. Rep. 174. 3 Cranch, 280. 9 Vesey, 21. 3 Story, 732, 659. 1 Story, 172. 9 Mo. Rep. 840. Story's Eq. § 193, and notes, § 197. 4 Barn. & Cress. 108. 6 Taunt. 108. 1 Stark. N. P. R. 504. 2 Pick. 214. 2 Kent, 611.) 3. If the patent right was not for a useful, but frivolous invention, then the patent was void and the consideration failed. (14 Pick. 217. 1 Mason's Rep. 182.)

SCOTT, Judge, delivered the opinion of the court.

1. The plaintiffs, on the trial of the cause, read in evidence, without objection, the written contract for the sale of the patent right, which was the consideration of the bond on which this suit was brought. This conveyance or bill of sale of the patent right is entirely silent in relation to any warranty or representation as to the utility of the invention patented. There is nothing in it that can be construed to be a warranty of any quality of the invention. This being so, all question as to a warranty are beside the case, for it is a well established principle, that if a bill of sale contains no warranty, but a simple transfer of title, the vendee cannot set up a parol warranty, for it must be presumed that the article contains the entire contract. ( Reed v. Wood, ...