occasionally in negotiable instruments. Any alteration which changes
the date, the sum payable either of principal or interest, the time or
place of payment, the number or the relations of the parties, the
medium or currency in which payment is to be made, or which adds a
place of payment where no place of payment is specified, or any other
change or addition which alters the effect of the instrument in any
respect is a material one and ought not to be made. To add the words
"with interest," with or without a fixed rate, is a material
alteration. But the insertion by the payee of the words "interest"
after the making of a note by authority of maker will not vitiate it.
And if a note had the clause, "interest at __ per cent," the insertion
of the legal rate would not be a material alteration since the legal
import would not be changed.
The position of a writing on a note is not important, for the effect
of the contract is to be gathered from the four corners of the paper.
The general rule is, if a memorandum written on an instrument in the
margin or at the foot is made before or at the time of its execution,
it is considered a part thereof, and if it affects the operation of
the terms of the body of the instrument it is a material part. It
follows that words written by a party on the margin of an instrument
after its execution and delivery, constitute an alteration if
intended to affect the terms of the instrument and would have such
effect if they were there when the instrument was executed.
A bill of exchange is an unconditional order in writing addressed by
one person to another, signed by the person giving it, requiring the
person to whom it is addressed to pay on demand or at a fixed
determinable future time a certain sum of money to order or bearer. A
bill of itself does not operate as an assignment of the funds in the
hands of the drawee available for its payment, nor is the drawee
liable on a bill until he accepts or agrees to pay it. An inland bill
is one drawn and payable within a state. Any other is a foreign bill.
An indorsed promissory note and an accepted bill are very much the
same thing, and that is why the law always treats of both together.
The maker of a note incurs the same obligations as the acceptor of a
bill, both are the parties primarily liable thereon, and the indorser
of a note and the drawer of a note are both secondarily liable on
proper notification of the failure of the primary parties to pay, as
we have learned. The payees in both cases are the same. The acceptance
of a bill is the signifying by the drawee that he has assented to the
drawer's order, and must be in writing. An unconditional promise in
writing to accept a bill before it is drawn is deemed an actual
acceptance in favor of every person who on the faith thereof receives
the bill for value. The drawee is allowed twenty-four hours after
presentment to decide whether or not he will accept the bill; but the
acceptance, if given, dates from the day of presentation. Furthermore,
an acceptance may be qualified as to time, acceptance of payment in
part only and in other ways. When a foreign bill is not accepted it
must be protested, which must specify the time and place of
presentment, and other particulars, and is usually made by a notary
public, though this can be done by other persons.
=Parent and Child.=--A parent is legally as well as morally bound to
support his children who are incapable to care for themselves. Should
a wife be divorced from her husband his duty to maintain the children
would not fall on her, unless she also had the custody of them. A
father's obligation to maintain his child continues until he is able
to provide for himself. The legal obligation ceases by common law as
soon as a child attains majority, however helpless he may be or great
may be his father's wealth.
A child that has property of his own, while his father's means are not
enough, may be supported from his own means. Even the principal may be
used in this manner. Generally if the father has ample means, he must
use them to educate his child. When the father can use the child's
fortune and how much, is sometimes a difficult question to answer. The
education of a child is now largely regulated by statute.
A parent may protect his child, even a homicide is justifiable. A
parent can also correct his child. Says an excellent authority: "The
rights of parents result from their duties. As they are bound to
maintain and educate their children, the law has given them such
authority, and, in support of that authority, a right to the exercise
of such discipline as may be requisite to the discharge of the sacred
trust." See _Adopted Child_; _Husband and Wife_.
=Partnership.=--There may be a partnership in a single transaction,
for example, to buy and sell a load of potatoes. Persons may be liable
as partners to others who had no intention of creating that relation.
If A acts in such a way by speech or deeds as to create the belief in
B that he is a partner, and thus believing B sells goods to the
partnership, A is liable as a partner for them. On the other hand if B
knew that A was not a partner, he could not hold him as one. In many
cases it is difficult to determine whether one is a partner or not.
Many tests have been applied. The most general is that of intention.
Simply sharing in the profits and losses will not always suffice. This
was long considered a proper test but it broke down after many
applications. Thus, suppose a clerk is paid by giving him a fixed
percentage of the profits as a compensation, is he a partner? He was
so regarded on one occasion, and the firm having failed he was made
liable for all its debts. That is one of the consequences attending
the relation, every partner is liable for the entire indebtedness of
the amount he may have contributed. The clerk contributed nothing,
nevertheless he was liable like the others. Today the courts would
decide such a case differently. It would inquire whether the partners
intended to make him a partner, or only gave him a share of the
profits as a mode of paying him for his service. The recent
Partnership Act contains this test.
A partnership may usually hold any kind of property, real and
personal, and not infrequently is formed to cultivate or deal in land.
A partner is a general agent. Hence the risk of creating the relation.
Being a general agent he can bind his partnership for any acts within
the scope of his authority. Yet there are limitations. If a
partnership was engaged in selling dry goods, a partner could hardly
bind his partners by making a contract with a person for a quantity of
iron, unless it was needed in rebuilding the store, or in some other
connection with the business. He can make and indorse negotiable paper
that is used in connection with the business. Suppose he borrows money
on his own note and he gives the money to his firm, is it responsible
for the amount? This has proved a hard question for the courts. If the
money though loaned on his note was for the benefit of the
partnership, and it was known at the time that it was to be used in
that way, the partnership would be liable; but if the money was to be
used by the borrower and this was known and believed by the lender he
could look only to the borrower for payment.
The receiving of a new member constitutes a new partnership. It may
reorganize the old partnership and become responsible for its debts,
or it may not. Unless recognized in some way by paying interest on
them and the like, the new member does not become responsible for
them.
A partnership is formed usually by a definite agreement that is put in
writing. Yet it may be simply an oral agreement with very general
terms about the contribution of capital or skill of the respective
partners and their division of profits. They may and usually do have
distinct fields of employment, each doing the thing for which he is,
or supposed to be, best prepared. By reason of their general
liability, in the olden days persons who wished to thus engage and yet
not be responsible, were kept in the background, and were known as
secret and dormant partners. If found out they were liable because
they were to share in the profits. The fact that they were unknown
when credit was given to the partnership at the time of selling goods
to the concern did not shield them from liability after the discovery
of their relation.
The difficulty has since been removed in two ways, by incorporating
the partners into a corporation whose powers and liabilities are fixed
by law and therefore known to all, and by forming limited liability
partnerships. These consist of two or more general partners, also
special partners who contribute an amount of capital, of which the
public is publicly informed. If such an association is unsuccessful,
the special partners may indeed lose all, or a part of the capital
they have contributed, but are liable for no more. This is a great
improvement over the secret and dormant methods of getting the capital
needed for partnership purposes. One of the matters that should be
carefully guarded in forming a limited liability partnership is to
contribute the full amount of capital advertised. If any deception is
practiced, or mistake made, whereby a smaller amount is contributed,
should the partnership not succeed, the special partners become liable
as general partners for the full amount. Once such a partnership was
formed with three special partners who contributed each $100,000, and
at the end of two years were told that their profits individually were
$60,000. Each was asked to contribute $100,000 more, and feeling happy
over his venture, he put in $40,000 more, which, added to his profits,
made up the required amount. When the concern failed a few years
afterwards the books showed that neither special partner was ever
entitled to $60,000 as profits. Though innocent, for they had never
examined the books, they were held as general partners for the entire
indebtedness of the concern.
An illegal contract made by a partner will not bind his partnership,
for all parties are supposed to know the law, and an illegal bargain
cannot be enforced, for example, an agreement to pay usurious
interest.
How may a partnership be dissolved? Unless the time is fixed by
agreement, it may be dissolved by any member whenever he pleases to do
so, though he cannot act wantonly to the manifest injury of the others
without making himself responsible for their loss. And if a partner
should attempt to transfer his interest before the time fixed for
ending the relation without good reason, to the manifest injury of the
other partners, he can be legally restrained from taking such action.
The death of a partner causes a dissolution. Nor can executors or
administrators succeed to his place, though they often do so for a
short period to prevent the interruption of the business and to enable
all parties to fare better than they would by its sudden ending. Yet
it is awkward for these officials to thus act, and in so doing they
incur an unpleasant personal responsibility. To relieve them from this
some states have passed statutes permitting them to thus act with the
other partners under the direction and orders of the court having
charge of the estate.
A partner who retires should give notice of his retirement to relieve
himself from future liability. For, should he neglect, and persons
continued to sell on credit to the firm, supposing he was a member, he
would be liable as before. The statutes in some states regulate his
duty in this regard; it is one that he cannot safely omit.
Should a partnership fail, the general rule with respect to the assets
is the partnership property must be used to pay partnership debts, and
the individual property of partners to pay their individual debts. If
a partner has anything left after paying his individual debts, it must
be devoted to paying the partnership debts. If the partnership has
anything left after paying its debts, this belongs to the partners in
accordance with their agreement in contributing it and the earnings,
and must be devoted to the payment of their individual debts.
Lastly concerning the authority of a liquidating partner. He can do
many things, give renewal notes, make indorsements, collect debts due
the partnership, and even revive an outlawed debt. Of course the
affairs of a partnership may be settled by some other person than a
partner; not infrequently a receiver is appointed who acts under the
order of the court that appointed him.
An agreement between a liquidating partner and the other partners, to
take all the property and pay all the debts, is limited in its effect
to themselves and does not affect others. After the partnership assets
have been transferred to a liquidating partner, or to any other person
for liquidation, a debtor who has notice of the transfer is not
justified in making a settlement with any one else. And if he should
do so, the liquidator could require him to pay again to himself.
=Patent.=--In the United States the thing patentable is a new and
useful art, machine, manufacture or composition of matter, or new and
useful improvement thereof, or new, original and ornamental design for
an article of manufacture. An idea, principle or law of nature is not
patentable, but only the means for utilizing the idea or principle.
Many a great discovery has slipped away from the inventor or
discoverer, because he sought to hold the discovery or invention of
the principle as his own, instead of limiting his claim to the means
or methods of putting his principle into use. Morse's invention of
telegraphy is one of them. An art or process is patentable as well as
machinery, though the inventor may not know the abstract principles
involved in his art. But he must know and describe the steps by which
the result is accomplished. A composition of matter is a mechanical
mixture or chemical combination of two or more substances; and an
improvement is an addition to, or change in, a known art, machine,
manufacture or composition of matter, which produces a useful result
and is patentable if it amounts to invention. Lastly "a patentable
design may consist of a new and ornamental shape given to an article
of manufacture, or of an ornamentation to be placed upon an article of
old shape." It is said that the law relating to this subject intends
that the patentability of a design shall be determined by its appeal
to the eyes of the ordinary man, and not to the eyes of a jury of
artists. Design patents are granted for different periods, three years
and a half, seven years and fourteen years, as the applicant may
elect.
The subject matter of a patent must be new and useful. It must be new
not only to the patentee, but to all the people in this country, and
at the time he filed his invention. The federal law, however, secures
a patentee who had no knowledge that his invention had been discovered
abroad and which had not been patented there, nor described in a
printed publication. Before the enactment of this law a patent was not
granted without showing that the applicant was the original inventor
with relation to every part of the world.
Much has been said concerning the novelty of an invention. This may be
in the use of an old means in a new way; or a change of shape or form
to produce new functions and results, but the changes must amount to
invention, which is more than mere novelty.
A foreign patent in order to invalidate an American patent must
antedate the invention patented. A foreign patent exists as a patent
only as of the date when the invention was published. In England an
invention is not patented within the meaning of the act of Congress
until the enrollment of the complete specification.
What is meant by a prior publication? It is a printed book, newspaper
or document of a public nature disclosing the invention intended and
actually employed for the purpose of informing the public. Publication
in a book of general circulation is sufficient; business catalogues or
circulars are not such publications as are meant in the law.
To defeat a patent on the ground of want of novelty the proof of prior
use or knowledge must be convincing, sufficient to establish the fact
beyond a reasonable doubt. The recollection of one witness concerning
the peculiar construction of a piece of machinery, especially if the
structure is one of complex character, is not enough evidence to
defeat a patent. Much less evidence, however, might be sufficient to
prove that a very simple invention had been anticipated.
To justify the granting of a patent it must be useful. If the
invention be frivolous or pernicious, the inventor cannot secure for
it legal protection. The use of the invention must not be contrary to
public health or morals. It is not needful that the invention should
be the best of its kind, or that it should accomplish all that the
inventor claims for it. Furthermore, its utility depends on the state
of the art at the time of making the claim or issuing the patent; its
subsequent inutility does not invalidate the patent. Extensive use is
evidence of utility. The presumption of law favors a patent, and the
burden of proof is on the one attacking it to show that it is not
useful. The infringement of an invention is in effect an admission of
utility, because use implies utility.
A patent also calls for the exercise of inventive power. Though
invention must be seen in every patent, it is difficult to define.
Says a former commissioner of patents, Justice Duell: "It is a matter
resting in judgment and therefore no fixed rule for its determination
is possible." Some principles, however, assist in defining the term.
"Thus, it is declared that an act of invention is primarily mental and
involves the conception or mental construction of a means not
previously known for accomplishing a useful result. It is not the mere
adaptation of old means by common reasoning, but is the construction
of new means through an exercise of the creative faculties of the
mind." Between invention and discovery the patent laws draw no
distinction. Again, it has been often said that the design of the
patent laws is to reward those who make a substantial invention or
discovery, which is an additional step in the useful arts. The law
never intended to grant a monopoly for every trifling device which
would naturally occur to a skilled mechanic in the ordinary progress
of manufacture.
An article of manufacture is not patentable because means have been
devised to make it more perfectly than before; it must be new in
itself and not merely in its workmanship. A machine-made article
therefore is not patentable simply because it is thus made, and no
longer by hand.
The substitution of an art, manufacture, or composition of matter of
one element or device for another which does the same thing in the
same way and accomplishes a similar result is not invention. Even if
the substituted part performs the function better, there is no
patentable invention unless some new function or result is secured.
Changes therefore of the relative location of parts without changing
the functions performed by them are not an invention, nor is the
omission of a part with a corresponding omission of function.
A patent can issue only to the inventor, or if he is dead to his
executor or administrator. If there be two original inventors the one
who first made it or brought it to this country is entitled to a
patent. A patent granted on the application of a non-inventor is void.
By first inventor is meant the one who first had a mental conception
of the invention provided he exercised diligence in perfecting it. If
there be a rival claimant the party who first reduced to practice the
invention was, until the contrary fact is shown, the first inventor.
One who merely utilizes the ideas of others is not an original
inventor and is not entitled to a patent. In the United States any
person, regardless of residence, citizenship or age may obtain a
patent.
An invention is reduced to practice when it is so far perfected that
it may be put into practical and successful use. The machine may not
be perfectly constructed, but it embodies all the essential elements
of the invention. Demonstration of its success by actual use is
usually necessary, but not always. The reduction to practice must be
by the applicant for a patent, or by his agent; to do this by a third
party will not suffice. The person who first conceived the invention,
but was later than his rival in reducing it to practice, is not
regarded as the first inventor unless he exercised due diligence to
perfect his invention after the time that his rival entered the field
against him.
Two or more parties may contribute in developing an idea and producing
an invention, which is truly the result of their joint mental efforts,
and not the separate invention of either. In such case both must apply
for the patent, which is granted to them jointly. But if a patent is
thus issued to two and only one of them is the inventor, the patent is
invalid. Nor can one of two joint inventors make application and
secure the patent on assignment from the other; both must join.
The patent must issue on the application of and in the name of the
real inventor even though he was employed to make it for the benefit
of another. Notwithstanding, the employer is the owner of the patent
and may compel the patentee to transfer it to him. Of course their
respective rights may be changed by agreement. If no agreement exists,
a company that employs a skilled workman to make improvements on its
machinery is not entitled to the patents granted to the workman. Says
Justice Duell: "An employee, performing all the duties assigned to him
in his department of service, may exercise his inventive faculties in
any direction he chooses with the assurance that whatever invention he
may thus conceive and perfect is his individual property. The
company, however, has an implied license to make, use and sell the
invention."
Where a party employs another to assist him in perfecting an invention
the presumption is that the employer is the real inventor of the thing
produced by their joint effort. On the other hand, where a person is
employed to exercise his inventive skill, because he is known to be
the possessor of it, Edison for example, the presumption is in favor
of the employee. Government employees may secure patents on inventions
made by them during their employment, after their relationship has
ceased. The government may have an implied license to use the
invention without any title thereto.
Patents may be issued and reissued to assignees on the application of
inventors. On the death of an inventor before a patent has been issued
to him, his executor or administrator may apply therefor, who takes
the patent in trust for the heirs. A foreign executor or administrator
may make a similar application. He must, however, present a proper
certificate of his authority to act. Likewise, a legally appointed
guardian or conservator of an insane inventor may apply for and obtain
a patent in trust for him.
The inventor must apply to the commissioner of patents for letters
patent which secure to him his invention. The application comprises a
petition, specification, claims, oath, drawings if the nature of the
invention may be thus shown, and a model, when this is required by the
patent office. A fee of fifteen dollars also must be sent with the
papers. The application must be signed by the inventor and two
witnesses.
The specification is the written description of the invention and of
the manner and process of making, constructing, compounding, and
using the invention; whatever it may be. He must describe not merely
the principle of the invention, but the mode of applying it in such a
clear, intelligible manner that those who are "skilled in the art"
can, without other aid, use the invention. Nothing should be left to
experiment. The phrase "skilled in the art" means persons of ordinary
skill. Whether a description is clear, exact and sufficient is a
question for the jury whenever it is a matter of legal contention.
In describing an improvement the same rule is applied. The description
should show clearly the nature of it. The description should
distinguish between the old and the new. "A description in a patent
for an improvement is sufficient if a practical mechanic acquainted
with the construction of the old machine in which the improvement is
made, can, with the aid of the patent and diagram, adopt the
improvement." If an inventor intentionally conceals facts or misleads
the public by an erroneous description, his patent is void.