specification many questions have arisen. First, the claim must be
clearly stated so that the public may know what it is. The claim
should not be too broad. Several claims may be made, but they should
not be varying phraseology for the same thing. They should state the
physical structure or elements of mechanism by which the end or result
is produced.
The inventor must make oath that he believes himself to be the
original and first inventor, that he does not believe that the thing
was ever before known or used, and as to his citizenship. If dead or
insane, the oath must be made by his executor, administrator, or other
representative. After the application is granted another fee of twenty
dollars must be paid.
The commissioner of patents must make an examination for the purpose
of deciding whether a patent may be granted or allowed. This
examination is made by an examiner, whose decision, however, is not
conclusive and may be set aside by the commissioner. The patent office
is not confined to technical evidence in rejecting applications, but
may base its action on anything disclosing the facts relating to the
matter.
When objection is made to the form of the application, an amendment
may be made by the applicant or his attorney to correct the error; and
this may be done at any time prior to the entry by the first examiner
of a final order of rejection, and within one year from the date of
the preceding action by the patent office.
When two parties apply for a patent for substantially the same thing
an interference is declared and the respective parties must present
proofs in support of their claims. The question between them is
priority of invention. The proceeding then is much like an equity
trial with perhaps a wider latitude in admitting evidence bearing on
the inquiry.
The applicant, if dissatisfied with the rejection of his claim by the
first examiner, or with the decision in an interference case, can
appeal to the board of the examiners-in-chief, and if dissatisfied
with their decision he may appeal to the commissioner in person, and
if still dissatisfied he can appeal to the Court of Appeals of the
District of Columbia. All appeals must be taken from the patent office
within a year, or a shorter period, if one has been fixed in a
decision.
The decision of the commissioner of patents in granting a patent is
not conclusive that the inventor is the first and original inventor,
but only prima facie, that is, in the absence of other evidence to the
contrary. Consequently, the question of patentability in every case
may be reexamined in the courts. In the early days of administering
the patent law an inventor often applied to a court for an injunction
to prevent an infringer from continuing his work. The court, assuming
that the patent had been properly granted, did not hesitate, on
adequate proof of the infringement to grant the injunction. The courts
were not slow in finding out that patents were sometimes granted that
ought not to have been, and so the practice was changed and patentees
were required to establish their right to a patent in a court of law
before a court would enjoin an infringer, except in very clear cases.
These hearings in the courts to decide the claims of patentees, are
often prolonged, running through years to collect testimony, and are
appealed from one court to another finally reaching the supreme
federal tribunal. After a patent is thus judicially established
injunctions are readily granted against all infringers.
=Payment.=--In making payment the parties to an agreement always have
in mind cash, unless they otherwise agree. Not every kind of money can
be used, nor only in limited amounts. Thus, if one owed another a
thousand dollars he could not deliver to him, unless he were willing
to accept them, one thousand silver dollar pieces, but only ten of
them. Nor can a debtor compel his creditor to receive one cent and
five cent pieces to a greater amount than twenty-five cents. National
bank notes may be paid or tendered to the government, and by one bank
to another, yet they may be refused by an individual in payment of his
debt. It is important, when one owes another and there is a dispute
over the amount, that the debtor should tender or offer to pay his
creditor the proper kind of money, because should he offer him some
other kind, national bank notes for example instead of United States
notes, or those issued by the federal reserve bank, and he declined to
take them and should afterwards sue his debtor for the amount, the
latter's offer to pay in national bank notes would be regarded as no
payment, or even offer of payment.
A note or check given for a bill of goods is not payment. In everyday
affairs a check is thus given and received, in fact it is only a
payment conditioned on payment of the check. Consequently if it is not
paid, the creditor can sue to recover on the check, or for the
original goods as he might elect. In most cases he would ignore the
check and sue for the original bill. Suppose some one had endorsed the
maker's check, then the creditor would probably sue on that in order
to hold both parties.
Does a debtor who turns over a note to his creditor in payment,
thereby cancel the debt? If he does not, of course the creditor can
still sue the debtor; but if he turned the note over in actual
payment, then his right to sue his debtor is gone. What was the
intention of the two parties? This is a question of fact to be
ascertained like any other.
How shall the money be applied of one who owes several debts to the
same person and makes a general payment? The debtor can make the
application, if he does not, the creditor can do so; if neither does
this, then the law applies it, first to the payment of interest that
may be due on any of the debts, and the balance left, should there be
any, to the payment of the principal. Of several debts the law applies
it to the oldest debt. Again, if there is a surety for any of the
debts, he may insist on the application of the money in order to be
relieved.
If a depositor in a bank has made a note payable there this is
regarded very much like a check, it is a direction to the bank to pay
it, especially by the Negotiable Instruments law. Unless the maker of
a note is insolvent, a bank can never pay the unmatured note of a
depositor. Nor can a bank apply a deposit, which is known to be trust
money, or belonging to another person than the depositor to the
payment of his note. Generally a bank declines to pay a note that is
overdue though there is no law, except in a few states, against paying
it should the bank decide to do so. In all cases a depositor may make
any application of his deposit he desires, for it is his own and the
bank cannot divert it in any way against his direction.
A receipt taken in payment of a debt is not conclusive evidence of
payment and may be contradicted by other evidence, though it is
regarded on its face as payment. When received, a receipt should be
kept for at least six years, because it is such strong evidence of
payment. After that period the statutes of limitation in most states
have the effect of canceling a debt, on the theory or presumption that
it has been paid. If the debtor afterward promises to pay, his new
promise is valid though there is no consideration therefor, and he is
legally required to pay the debt.
Should a receipt also contain any other statement or contract beside
the payment of money, this would have the same effect as any other
contract between the parties, and would be equally binding on them.
The effect of a seal after the receiptor's name may be explained in
this connection. A sued B and C for a debt. Before trial he gave C a
receipt stating that if he did not recover from B he would
nevertheless not hold C liable. Having failed in his suit against B,
he sought to hold C notwithstanding his receipt releasing him. And he
succeeded for the reason that his release was given without
consideration and therefore was worthless. Had A added after his name
a seal this would have imported or implied a consideration and the
receipt would have been an effective release.
=Prescriptive rights.=--A person may gain rights in the land of
another by acting in such a way as to indicate that he clearly makes a
claim to them. Thus, if a man goes over the land of another in the
same direction to his own land for a period of fifteen years or
longer, the period differing in the several states, he acquires the
right to continue, in other words he acquires a permanent right of way
by such action. As such a right is contrary to the interest of
another, it cannot be gained against a person who is incapable of
preventing the acquisition of such a right if he pleases. Such a
right, therefore, cannot be gained against a minor, nor an insane
person, nor any one who is incapable of defending his possessions.
Whether the right has been fully acquired is not always easily
determined. Suppose one claims a right of way over another's land, and
the right is disputed. How often has he traveled that way? Has the
other person known of his going and said nothing? Again, suppose a man
sells another a piece of his farm away from a road, the law presumes
that he intended to grant or permit the buyer to have ingress and
egress to his land, otherwise he would not have purchased. This is
called a way of necessity. Can the purchaser choose any outlet he
pleases? The law says he must exercise reasonable discretion in making
his selection.
When a way has been acquired by such use, the law is strict in
confining the gainer in the use of it. Thus A buys a piece of land of
another for the purpose of erecting a house thereon. The use of the
way thereto must be confined to A and his family, friends and those
who come to see him on business. Suppose A should decide to divide it
into building lots, which would require a greatly increased use of the
way. This could not be done without a new agreement with the seller.
Again, a tenant cannot by any use of the land acquire a right therein
that will continue beyond his lease. If he had a long lease, say
thirty years, and could gain a prescriptive right by an adverse use of
fifteen or twenty years, he would, if gaining any prescriptive rights,
be obliged to give them up at the end of his tenancy. In claiming a
right of way the use need not be exclusive. Other persons may also use
the way with the same claim of right.
The owner of land has no natural right to light or air and cannot
complain that either has been cut off by the erection of buildings on
adjoining land. He may, however, acquire, by grant or some other way,
a right to have light and air enter a particular window, or other
place, without interruption by the owner of adjacent land. Nor can he
acquire a right to light and air across another's land for his own
house by simply erecting it on the edge of his own land while the
adjoining land is unoccupied. To erect windows on that side is not an
adverse use of the land adjoining. But a person may gain a right to
light and air by presumption, and if one has acquired the right to
maintain a window in a specified place he loses his right by closing
it up and opening another of a different size in another place. And
the same thing happens to one who tears down his house and builds a
new one with windows of the same size and in the same places as in the
old one. A person cannot maintain an action against another for
cutting off his view unless the right has been expressly acquired.
The general rule with respect to the use of water is, any person
through whose land flows a stream may use it in a reasonable manner.
What is such a use has occasioned many a legal dispute, especially
among mill owners. Each one of them located on a stream may use the
water, but can they hold it back for any length of time? As a general
rule this can be done for a short time in order to get the use of the
power, if they could not, the water could run to waste and no one
would derive any benefit. Again, can any diversion be made of it? Any
use, almost, is a diversion. If one used water even to supply his
cattle, it would be a diversion, yet such a use ordinarily is lawful.
Suppose one had a very large herd, then the use might be excessive
especially in view of the needs of other users on the stream. A still
more important question has arisen of late concerning the fouling of
water. Has a factory the right of putting its dyestuffs into the
water, impairing its quality and rendering it unfit for use by all
below? This cannot be legally done. Can a stream be used as a sewer?
Naturally all the water in a valley flows downward and at last
reaches a stream running through it. As population increases the use
of streams becomes greater, and questions concerning their use more
difficult.
Suppose a land owner on the hillside wishes to use all the surplus
water, can he gather it and thus prevent its flowing to the land
below? He can. Can he build ditches or other obstructions whereby he
can collect the water and pass it to the land below in other than the
natural way? He cannot. On the other hand, the lower proprietor can,
if he pleases, make an embankment that will prevent the water from
coming upon his land. This, though, is not the law everywhere.
The owners of a well may prevent its overflow and thereby cut off
water that formerly ran into a stream. But the owner of a spring that
flows into the land of another cannot change its course, nor exhaust
the water, nor pollute it to the injury of another. Nor can surface
water be changed into a water course by impounding it. On the other
hand this rule does not apply to water or springs beneath the surface.
If in digging a well the source of supply to another is cut off, it is
a loss for which there is no redress, unless the well has been dug
maliciously. But where percolating water abounds and is obtained by
artesian wells a land owner has no right to sink wells on his land and
draw off the water supply of his neighbor. The right to cut ice is a
natural one, and the owner of a lake or stream may cut a reasonable
quantity, but not enough to diminish the water appreciably to the
lower proprietor.
While a person has the natural right also to the lateral support of
his land, yet he cannot use it to the injury of another. This is a
legal maxim. If, therefore, he should excavate to the edge of his
land and his neighbor's building should in consequence fall down,
would he be without redress? The rule is, the excavation must be made
in a reasonable manner. This is a question of fact in every
controversy of the kind. The owner of land adjoining a highway has no
right to the lateral support of the soil of the street. Therefore, if
the grade of a street were lowered by proper authority and one's house
located by the side of it should fall, he would have no redress
against the city or other public body.
=Quasi Contracts.=--A quasi contract is a legal obligation arising
without the assent of one from the receipt of a benefit which, if
retained, would be unjust. The law therefore compels him to make
restitution. He is required to do this, not because he has promised to
make restitution, but because he has received a benefit which he
cannot justly retain.
If one at the time of conferring a benefit on another confers it as a
gift, it cannot afterward be claimed that the gift was conferred
relying on a supposed contract. Consequently, though the donor's
intention may be subsequently altered, no obligation to make
restitution will arise. Nor does the failure of the donee to
reciprocate the donor's generosity or indirectly reward him, create
any right or claim on the donor's part to a return from the donee.
Where one, in the preservation of his own property or the promotion of
his own interests, bestows some incidental advantage to another, there
is no legal obligation to pay for the value of it. Thus the owner of
the lower part of a house is not liable for the advantage resulting to
him from the repair of the roof by the owner of the upper part and
roof. Nor is one who has thickened and strengthened that part of an
ancient party wall which is on his own land, in order to sustain the
building he is erecting, entitled to recover from the adjoining owner
who used the wall. Nor can anything be recovered from the owner of a
vessel by the underwriters who had her docked for repairs though by
such docking the owner gained an important benefit. Nor can one who in
pumping out his quarry frees another quarry from water recover
anything for the service. Nor can one who is benefited by experiments
made by another to test the value of patented inventions, in which
both are interested, be legally required to pay for the benefit he has
received.
As no expectation of payment does presumptively arise when services
are rendered by one member of a family to another member, one who
claims payment for them must prove that they were not rendered as a
gratuity, but on the legal supposition that he had a right to
compensation.
One who knows or who has reason to believe that compensation is
expected for goods or services tendered to him ought not to accept
them unless he intends to pay for them. If he does his act of
acceptance will be regarded as a promise of payment, and can be
enforced. But if one accepts goods or services without knowledge or
reason to believe that compensation will be expected, what then?
Suppose A sends a barrel of apples to B supposing, from their previous
course of dealing, that B will return them if he does not want them? B
should either return them or pay. Suppose B is misinformed and learns
that A is giving a barrel of apples to each of his customers? Then he
would be justified in keeping them until he learned the truth.
If, in making a contract it is taken for granted by both parties that
a certain fact exists, which, if not existing, would make the contract
impossible of execution, the contract is void. Thus, in contracts for
the sale of specific personal property, its existence at the time of
the sale is generally assumed. If the property has perished or been
destroyed, the contract is void. The same rule has been applied to the
sale of non-existent reality, of the transfer of void or spurious
securities, of the assignment of a void lease. In all these cases the
money paid in misreliance on the void contract is recoverable.
Premiums paid on a policy of marine insurance by one who in reality
had no goods on board, or for a voyage that was never begun, may be
recovered. The existence of a risk is assumed by both parties, in fact
there is no risk, consequently there was nothing to which the contract
of insurance related.
"A promise," says Woodward, "which is so general or indefinite that it
does not enable the courts to determine the nature and extent of the
obligation assumed must be regarded as no promise at all. Such has
been the fate of a promise to pay good wages; a promise to convey a
hundred acres of land, the land not being described; a promise to
divide profits, no rate of division being indicated. Instances might
be multiplied. A benefit conferred, in the honest, though mistaken,
belief that such a promise is binding ought in justice to be restored.
Restitution is accordingly enforced."
The law requires some kinds of contracts to be executed in a
particular manner. Thus, by statute, many municipalities can make
contracts, or those of a particular kind, only on sealed bids or
proposals and after proper advertising for bids, etc. If these things
are not done, the contract made in disregard of them is invalid. The
courts of this country have got into deep confusion in applying this
rule to private corporations. Suppose a corporation makes a loan
without proper authority and receives the money, can the lender
recover it? The corporation had no right to borrow, of this the lender
knew as well as the borrower. Both parties are in the wrong. The
highest court in this country has been more consistent than many of
the state courts, and holds that a contract it cannot make for lack of
legal power is not made and cannot be ratified. "No performance on
either side can give the unlawful contract any validity, or be the
foundation of any right of action upon it." Nevertheless though a
contract is unlawful and void because the corporation was unable to
make it, a court strives to do justice between the parties by
permitting property or money, parted with on faith of the unlawful
contract, to be recovered back, or compensation to be made therefor.
The lack of another legal requirement in making contracts gives rise
to serious consequences. We have learned that the Statute of Frauds
requires for the validity of many contracts that a memorandum of them
be made in writing and signed by one or both contracting parties. By
English law the statute provides a rule of evidence, that a writing
must be shown as proof of a contract before the courts will consider
it as having been made; by some of the American courts a contract that
does not meet the requirements of the statute is held to be void; by
other courts they declare that though the contract is not void it
cannot be enforced.
While the Statute of Frauds in some states is regarded as completely
nullifying contracts not conforming to its requirements, they are not
anywhere held to be illegal, that is, are not made in violation of
law. "There appears," says Woodward, "to be no reason of policy,
therefore, for denying to a party thereto in a proper case, the aid of
the court in obtaining quasi contractual relief, or the right to
establish the justice of his quasi contractual demand by proving the
terms of the unenforceable agreement. True, the evidence of the
agreement in such a case, must be oral; but since the evidence is for
the purpose of proving, not a contract as such, but a transaction
resulting in an unjust benefit to the defendant, its introduction
would seem not to contravene the statute."
A purchaser of land under an oral contract, who is given possession
and subsequently fails to pay, is liable for the use of the land to
him while he has occupied it. Though the act of the seller in giving
the purchaser possession without conveying the title may not be
regarded as a part performance of the contract of sale, yet the
benefit resulting to the purchaser creates an obligation to make
restitution which the courts will enforce. The improvement of land by
the purchaser under an oral contract is an act which enables him to
enforce the contract in equity. Improvements made by a lessee under an
oral lease within the statute are governed by the same rules as those
of improvements made by a purchaser.
If no benefit has been derived from the contract, nothing can be
recovered. Thus, a son worked for his father on his father's farm
under an unenforceable contract with his uncle. The latter was under
no quasi contractual obligation to pay the value of such service,
since he had derived no benefit from them. Likewise one who, relying
on an unenforceable contract, constructed a wood-chopping machine that
was not accepted could not recover for the value of his labor and
materials.
Again, where one party by his own act or default has prevented the
other party from fully performing his contract, the party thus
preventing performance cannot take advantage of his own act or
default, and screen himself from payment for what has been done under
the contract. Thus, if one party agrees with another to work on a
house the law implies that the employee owns the building in which the
work is to be done. This is a part of the contract whether the house
is clearly specified or not. Therefore, an employer who does not own
the house, or parts with it before the work is completed, is liable to
the other party.
The destruction of a thing in the course of alteration or repair
without the fault of the bailee is a case like that above mentioned.
The labor and materials are expended in response to the desire of the
owner of the property, and therefore it is just that he should pay for
the property he destroyed. In one of the old cases a horse was sent to
a farrier to be cured and was burnt before a cure was completely
effected. Nevertheless, the farrier was entitled to payment for what
he had done. Likewise, the owner of a ship that is destroyed by fire a
few hours before the completion of repairs, cannot escape payment on
the ground that he has reaped no advantage.