Sone v. Palmer

• Decision Date: 31 July 1859
• Citation: 28 Mo. 539
• Parties: SONE, Plaintiff in Error, v. PALMER, Defendant in Error.
• Court: Missouri Supreme Court

28 Mo. 539

SONE, Plaintiff in Error,

v.PALMER, Defendant in Error.

Supreme Court of Missouri.

July Term, 1859.

1. If a plaintiff voluntarily suffers a nonsuit before the court has made any ruling prejudicial to him, the supreme court will not interfere.

2. To render an assignment of a patent right or of an undivided part thereof valid, it is not necessary that it should be recorded in the United States patent office; the assignee will have a vendible interest without such record.

3. A clerk in the patent office, whose employment consists chiefly in making examinations in relation to assignments and other papers recorded and filed in the office, is a competent witness to prove what documents are of record or on file in said patent office.

4. Where a party relies upon an instrument purporting to have been executed by an agent, he must prove the agent's authority.

Error to Moniteau Circuit Court.

This was an action commenced before a justice of the peace on a promissory note for one hundred and fifty dollars, dated October 5, 1855. At the trial the plaintiff read in evidence the note and rested. The defendant then offered to read the deposition of one William F. Hall, taken in Washington city. In this deposition Hall stated that he was then a clerk in the United States patent office; that his business in the office was chiefly to make searches and examinations in relation to assignments and other papers recorded and on file in said office; that he had carefully examined the records of assignments of patents and found no assignment to L. D. Sone of record prior or subsequent to October 5, 1855, of a patent to Moses D. Wells, December 14, 1852. The plaintiff objected to the reading of this deposition on the ground that it did not appear that said Hall was the keeper of the records in the patent office or that he had access to all the records of assignments of patent rights. The court overruled the objection and admitted the deposition. The defendant then read in evidence two deeds--one dated October 2, 1855, the other October 5, 1855. By these deeds plaintiff Sone assigned to defendant Palmer the exclusive right to vend Wells' seed planter in certain counties in the state of Missouri. In these deeds there were recitals of assignments duly recorded in the patent office from Moses D. Wells to Alpheus Wells, and from the latter to Isaac Scott. The plaintiff then offered, as appears from the bill of exceptions, “to read in evidence a certain deed to him dated March, 1855, conveying to said Sone, by one J. M. Leach for Isaac Scott, the right to sell said patent in said counties.” This deed was excluded on the objection of defendant. The plaintiff thereupon suffered a nonsuit, with leave, &c.

Batte and White, for plaintiff in error.

I. The court erred in permitting the deposition of Hall to be read. It was not the best evidence the nature of the case would admit of. He was only an employee in the patent office. It does not appear who employed him. It does not appear that he was there by authority of law; that he had access to all the records of assignments, or that he was keeper of the records of assignments in said office. (7 Pet. 685; 1 Greenl. Ev. 485.) The court erred in excluding the deed from Scott. It was competent for the plaintiff to show what sort of a title he conveyed to defendant. Plaintiff could show that even if there was an irregularity in the conveyance to plaintiff, yet that defendant was aware of the irregularity at the time of his purchase. The deeds contained no covenants of warranty. They only purport to convey the interest that Sone had in the counties mentioned. It is not pretended that any false or fraudulent representations were made to defendant, or that Sone had sold to any one else, or that defendant has been in any way molested or hindered in the enjoyment of the rights acquired by him under the deed. (16 Mo. 411; 21 Mo. 338.) It was improper for the...