and agreed to pay for, a certain machine, were granted, bearing date January 22, 1895, method, and device for making barrels and as read in evidence, and that the plaintiff, at kegs, and all his right, title, and interest in the time of the execution of said agreement certain pending letters patent therefor, when with the plaintiff, had no knowledge or noissued, at and for the price of $300,000, tice of the agreement between Henry Campwhereof $100,000 were to be paid in cash bell and the Campbell Barrel Company offered within ten days after the issuing of letters in evidence, then the plaintiff is entitled to patent, and the remaining $200,000 were to recover. be paid in the full-paid, nonassessable shares of a corporation, to be incorporated and organized by the defendant in error Morton under the laws of Maryland, with a capital stock of $500,000. The pleas were: First. Non est factum. *" ("And that there is no evidence that the [41] plaintiff had any knowledge or notice of said agreement between said Campbell and said Campbell Barrel Company.') (Rejected as fered, but granted as modified by omitting the words in italics.) "Plaintiff's Second Prayer. Second. That the signature of the defend- "The plaintiff, by his counsel, prays the ant in error to the alleged agreement was pro- court to rule that the defendant has offered cured by the fraud of the plaintiff in error. no evidence legally sufficient to show that the Third. That the signature of the defend- contract set out in the declaration was proant in error was procured by the undue influ-cured by the plaintiff from the defendant by ence of the plaintiff in error. fraud or by undue influence. (Conceded.) "Plaintiff's Third Prayer. And also three supplemental pleas on equitable grounds: 1st. That there was no consideration for the alleged agreement. 2d. That at the date of the alleged agree[40]ment Harrison was not the owner of and had no valid title to the machine, method, and device mentioned in the declaration. 3d. That at the time of the alleged assignment of the patent Harrison was not the owner of and had not a valid title to the said pat ent. The defendant also filed a plea of set-off, and upon demand for a bill of particulars of such set-off filed a bill of particulars, amounting to thirty-one thousand, seven hundred and ninety-one dollars and fifty-two cents ($31,791.52). Replications were duly filed and issues joined on all of them. The case was tried before the judge without a jury. At the trial the parties asked the court to rule on certain propositions contained in what the record calls "prayers." They were as follows, with the action of the court expressed thereon: "The plaintiff, by his counsel, prays the court to rule that the defendant has offered no evidence legally sufficient to show that there was no consideration for the agreement set out in the declaration. (Rejected.) "Plaintiff's Fourth Prayer. "The plaintiff prays the court to rule that if the court shall find that on the 11th day of September, 1894, Henry Campbell made to the plaintiff the assignment of one-half interest in his then pending application to the United States Patent Office for a patent for the invention in said assignment mentioned, and subsequently, on or about the 26th of November, 1894, made to the plaintiff a further assignment of all his interest in his said pending application and to the patent thereon, whenever the same should thereafter be granted; then, by virtue of said two assignments, the plaintiff acquired an inchoate title to said invention and to the patent thereon, when the same should thereafter be granted, which title it was competent for the plaintiff to sell, assign, anu dispose of; and if the court shall further find that on or about the 10th day of December, 1894. the plaintiff executed "Plaintiff's First Prayer. to the defendant the assignment read in the "The plaintiff, by his counsel, prays the evidence and dated the 8th day of December, court to rule that if it shall find from the evi- 1894, for the consideration therein mentioned, dence that the contract between the plaintiff and that subsequently, on or about the 22d and defendant, dated December 8, 1894, and day of January, 1895, a patent was issued by read in evidence, was signed and sealed by the United States in the name of said Henry the plaintiff and defendant, and left in the Campbell, for the invention described *ir said [42] possession of the defendant as a complete and several assignments from said Campbell to operative instrument according to its terms, the plaintiff and from the plaintiff to the deand that in accordance with said contract, fendant, then the defendant, by virtue of shortly after the execution thereof, the plain- said letters patent, acquired a valid title to tiff executed to the defendant the assignment and became the owner of said patent, and said read in evidence of his right to the invention assignment from the plaintiff to the defendtherein mentioned, on which application for ant, bearing date the 8th day of December, a patent was then pending, and that defend-1894, was supported by a good and sufficient ant afterwards employed and paid patent at- consideration, and the plaintiff is entitled to torneys to procure for him the patent from recover upon the contracts set out in the decthe government of the United States and from the governments of other countries; and if the court shall further find that the said application for a patent was allowed by the government of the United States, and subsequently that letters patent for said invention laration, provided the court, sitting as a jury, tion of said contract, the plaintiff had no embrace rulings on testimony, on the knowledge or notice of the agreement between prayers, and the following: Henry Campbell and the Campbell Barrel Company, bearing date the day of January, 1892, and offered in evidence by the defendant, and that there is no evidence legally sufficient to show that the plaintiff had any such knowledge or notice of said agreement. (Rejected.) "Fifth Prayer. "1. It was error to decide that under the laws of the United States the assignments from Henry Campbell to Walter H. Harrison, dated the 11th day of September, a. d. 1894, and the 26th day of November, 1894, respectively, purporting to convey to the said Harrison the 'entire right, title, and interest in and to the application for patent-serial number, 522,266 and the patent right contained therein and covered thereby,' operated to convey to the plaintiff Harrison merely the equitable title in and to said invention and the patent rights covered by said application. "That the agreement of January, 1892, between Henry Campbell and the Campbell Barrel Company, offered in evidence by the defendant, is no defense to this action, if the court shall find that by the true construction of said agreement the invention and device described in the contract set out in the declaration is not embraced within said agree-signments were not drawn as the laws re- [44] ment. (Granted.)" And the defendant offered the following two prayers: "Defendant's First Prayer. "The defendant asks the court to rule as matter of law that upon the pleadings of the case the burden is upon the plaintiff to prove the delivery of the sealed instrument sued on, and if the court, sitting as a jury, finds that the paper sued on never was delivered, the verdict must be for the defendant. (Granted.) "Defendant's Second Prayer. "2. It was error to decide that the said as quired and hence did not convey the legal title to the invention in question." The opinion of the supreme court of Maryland is quite long, necessarily so, as it passes upon all the points which were raised by plaintiffs. The parts of it which concern the case are as follows: "We think there can be no doubt that the defendant's two prayers were properly granted. By the first the court declared as matter of law that upon the pleadings the burden was upon the plaintiff to prove the delivery of the sealed instrument sued on, "If the court, sitting as a jury, shall find and that if the court, sitting as a jury, that when the paper sued on was presented should find that said paper never was de[43] by the plaintiff to the defendant *for the lat-livered, the verdict must be for the defendter's signature, with the request that he ant. The second prayer recites the evidence would sign it, the defendant declined so to more at length, but asserts the same propodo, as the terms of such papers did not corre-sition of law which appears to be well settled spond with any agreement made or talked of between the plaintiff and defendant, and that thereupon it was agreed between them that the papers in duplicate should be signed by the defendant, and both kept in his possession, and should not be of any force, and should belong to the defendant until he chose to put them in force, and that in pursuance of this agreement they were then signed by the defendant, and always afterwards kept in his possession until produced at the trial of this cause, on notice, and that at no time after the signing of said papers did the defendant ever exercise his option of putting into force, but, on the contrary, subsequently thereto, exercised his option by declining to recognize them as in force, then the verdict shall be for the defendant. (Granted.)" The trial judge rendered a general verdict for the defendant, on which judgment was entered for $35,091.65, with interest and costs. An appeal having been taken to the court of appeals of Maryland by the plaintiff Harrison, the judgment of the court below was affirmed by the said court of appeals on the 17th of June, 1896, for $39,091.65, with interest from the 13th of December, 1894, until paid, and costs. On September 21, 1896, a writ of error to review this judgment was issued to the court of appeals of Maryland. There are nine assignments of error. 171 U. S. U. S., BOOK 43. They 5 in this state. Edelin v. Sanders, 8 Md. 129. We discover no inconsistency between the two prayers. The plaintiff specially excepted to the second on the ground that there was no evidence in the cause legally sufficient to prove the facts therein set forth. It is clear, however, that the testimony of the witnesses Morton and Coale support the facts set forth in this prayer, and we have already held it to be competent and admissible under the issue made by the plea of non est factum. "We will now consider the prayers of the plaintiff. He offered five, the second having been conceded and the fifth granted. "The controlling proposition in this part of the case is that contended for by the plaintiff in his first, third, and fourth prayers, namely, that there is no legally sufficient evidence in the case to show that he had any knowledge or notice of the agreement between the inventor, Campbell, and the Campbell Barrel Company. "The correctness of this contention of the plaintiff depends first, upon the legal effect of the assignments from Campbell to the plaintiff, and, secondly, upon the effect of the contract of Campbell with the Campbell Barrel Company-that is to say, whether said company thereby assigned to said company an equitable title to his invention prior in date to the title he claims to have assigned to [45] the defendant, which latter title the plaintiff claims to be an absolute legal title, and the defendant's contention, on the contrary, is 65 Mr. Justice McKenna delivered the opin that it is a mere equitable title, subsequent not appear but that the decision was given on the contention of the defendant that the "It will befound upon an examination of agreement never became operative for want these instruments that they do not contain a of delivery. This contention was clearly prerequest to the Commissioner of Patents to sented by defendant's prayers, and they conissue letters patent to the plaintiff. Not-tained the only rulings urged upon the court withstanding they were recorded in the Pat- in that way, that is, in the nature of instrucent Office, letters patent were issued in the tions. They were given and the verdict was name of Henry Campbell, the inventor, and generally for the defendant. It is therefore the defendant contends that the legal effect natural to presume that the verdict was renof such an assignment, in which the inventordered on account of them and on the ground fails to embody a request to the Commis- urged by them. The ruling of the court sioner of Patents to issue letters to the as-granting them was sustained by the supreme signee, is to convey to such assignee only an court of the state. It affirmed the ruling as equitable title. It is conceded that by one correct in law and as supported by competent of the rules of the Patent Office the Commis-testimony. The supreme court, it is true, sioner will not and cannot issue the letters passed on other grounds, passed on the one patent to an assignee, unless specially re- which it is claimed involved a Federal ques- [47] quested so to do by the terms of the assign- tion, and decided it adversely to plaintiff. ment. One of the witnesses refers to this But the rule in such cases has been repeatedly rule in his testimony. The patent having declared by this court. It is not necessary to been issued to Campbell instead of to the de-review the decisions. That has been done by fendant, the witness thus explains: I ascertained that the probable reason why it (the patent) had not been issued to Mr. Morton was this: The original assignment from Mr. Campbell to Mr. Harrison did not contain the request which the rules of the Patent Office required in order that the patent should be issued in the name of the assignee.' Rule 26, Rules of Practice in the United States Patent Office, page 9. Revised April 1, 1892." After considering authorities, the opinion decides that Mr. Justice Shiras in Eustis v. Bolles, 150 Ů. "It is settled law that, to give this court jurisdiction of a writ of error to a state court it must appear affirmatively, not only that a Federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, and that it was actually decided adversely to the party claiming a right under the Federal laws or Constitution, or that the judgment as rendered could not have been given without deciding it. Murdock v Memphis, 87 U. "If, therefore, the Campbell Barrel ComS. 20 Wall. 590 [22: 429]; Cook County v. pany acquired an equitable title to the pat-Calumet & Chicago Canal & D. Co. 138 Ŭ. S. ent, as it undoubtedly did, under its contract 635 [34:1110]. It is likewise settled law with the inventor, before the assignment of that, where the record discloses that if a the equity to the defendant, the latter took question has been raised and decided adversesubject to the equitable title in the said com-ly to a party claiming the benefit of a propany, and the first, third and fourth prayers [46] of the plaintiff were properly refused, for they all asked the court to say that there was no legally sufficient evidence to show that the plaintiff had knowledge or notice of the agreement between the plaintiff and the barrel company, but, as we have seen, knowledge and notice will be imputed to him, as Ch. J. Gibson said in Chew v. Barnet, supra [11 Serg. & R. 389], 'whether he had notice or not,' holding as he did only an equitable title." The opinion concludes as follows: "Finding no error in the rulings of the learned judge below, the judgment will be affirmed." Messrs. William Pinkney Whyte, Frederic D. McKenney, and Samuel F. Phillips for plaintiff in error. Messrs. Bernard Carter and Edgar H. Gans for defendant in error. vision of the Constitution or laws of the The writ of error must therefore be dis- (See S. C. Reporter's ed. 48-55.) Power of common council of Detroit-privilege to build railroads on streets—power to grant easements in public streets. 1 The common council of Detroit had no inherent power to confer the exclusive priviNOTE. As to municipal power to impose con- | ditions when giving assent to street railway in street; power to assent as involving power to impose conditions; agreement by railroad; conditions enforced; express power to impose conditions; want of power or consent; conflict with other authority; conditions after completion of contract; right to control street,-see note to Galveston & W. R. Co. v. Galveston (Tex.) 36 L. R. A. 33. As to acquiring right of way; authority to use strects, see note to Adams v. Chicago, B. & N. R. Co. (Minn.) 1 L. R. A. 493. As to right of street railways to use streets, -see note to People, Third Ave. R. Co., v. New ton (N. Y.) 3 L. R. A. 174. Street railroads; rights of, in the street; grants to, by municipal corporations; power of such corporations to impose restraints or conditions upon street railways; consents by abutting owners; forfeiture of rights. An irrepealable contract for the use of a street by a street-railway company is not in excess of the powers of a municipal corporation which Is invested with full power to regulate and control the use of streets. Baltimore Trust & G. Co. v. Baltimore, 64 Fed. Rep. 153. A city of the third class is not prohibited from granting by special ordinance to an electric railway company the right to construct its tracks in the city streets, by Pa. act June 14, 1887, § 32, prohibiting cities of the second class from so doing. McHale v. Easton & B. Transit Co. 169 Pa. 416. 2. lege claimed by the Detroit Citizens' Street Railway Company to construct and operate railways on certain streets, under the ordin ance of November 24, 1862. The Michigan tram railway act. conferring on railway companies the exclusive right to use and operate railways constructed by them, provided that they shall not be authorized to construct a railway through the streets of any city without the consent of its municipal authorities, did not give the city of Detroit the power to grant to a railway company the exclusive privilege to occupy its streets for railway purposes. consent to the operation of a street railroad is The consent of township supervisors to the construction of a street railway upon an ordinary township road is sufficient where such consent is given at a meeting held for the purpose after four meetings to deliberate upon and discuss what their action should be, although no minutes of their proceedings were kept by them. Scranton & P. Traction Co. v. Delaware & H. Canal Co. 1 Pa. Super. Ct. 409. The consent of the township committee is necessary to legalize the construction of street railroads in any township, under N. J. P. L. 1893, p. 144, prohibiting the construction of any street railroad on the street of any "municipality" without the consent of the "governing body" having the control of the streets in such municipality. West Jersey Traction Co. v. Camden Horse R. Co. 53 N. J. Eq. 163. 729. A city in consenting to street-railway franchises under Milliken & Vertrees (Tenn.) Code, § 1921, cannot limit such consent to a period less than the duration of the franchise granted A consent given by the supervisor of a town-by the state. Africa v. Knoxville, 70 Fed. Rep. ship to a street-railway company to construct a line on its highways, upon the consideration that the latter employ him and his son for life at an agreed price per day, does not bind the township, and is void. Lehigh Coal & Nav. Co. v. Inter-County Street R. Co. 167 Pa. 75. A mere license, and not a franchise, is given to a street-railway company by an ordinance granting the consent of a city to the use of streets for its tracks. Belleville v. Citizens' Horse R. Co. 152 II. 171, 26 L. R. A. 681. A provision in a city charter, making it unlawful to grant the right to construct a street railroad except to one who will agree to carry passengers thereon at the lowest rate of fare, Is superseded by N. Y. Laws 1890, chap. 565, giving every railroad corporation the power to construct its road upon any highway which Its route shall touch, subject to the limitations of such chapter. Adamson v. Nassau Electric R. Co. 89 Hun, 261. The consent of property holders on a designated street is not necessary to enable a street railway company to make use of the tracks of another company already in operation, under N. Y. Const. art. 3, § 18, providing that no street railway can be constructed or operated without the consent of such owners. Ingersoll v. Nassau Electric R. Co. 89 Hun, 213. A city council which is authorized to regulate the use of streets and to permit or prohibit any street railroad in any street, but which has no power to grant" the right to lay down any railroad track in any street except on a specified petition, cannot grant the use of a street for railroad purposes except on the petition provided for. North Chicago Street R. Co. v. Cheetham, 58 111. App. 318. The right of a city to grant or withhold its In the absence of a statute there is no implied restriction springing from public policy upon the power of a city to grant a street easement to a railroad or street-car company hav ing the requisite franchises from the state unlimited as to time. Louisville Trust Co. v. Cincinnati, 47 U. S. App. 36, 76 Fed. Rep. 290, 22 C. C. A. 334. A resolution by the dock department of a city granting a revocable license to a street-railroad company to construct its road over a given street confers no authority for its construction, where such department has no power to grant any franchises. Central Crosstown R. Co. v. Metropolitan Street R. Co. 16 App. Div. 229. City authorities have no right to grant streetrailway franchises except in so far as they may be authorized by the legislature, and then only in the manner and under the conditions prescribed by the statute. Beekman v. Third Ave. R. Co. 153 N. Y. 144. Validity of conditions imposed by city or highway authorities in granting consent to a street railways to use the streets. People, West Side Street R. Co. v. Barnard, 110 N. Y. 548; Abraham v. Meyers. 29 Abb. N. C. 384: Cincinnati v. Mt. Auburn Cable R. Co. 28 Ohio L. J. 276; Allegheny v. Millville, E. & S. Street R. Co. 159 Pa. 411; Cincinnati v. Cincinnati Street R. Co. 31 Ohio L. J. 308; Plymouth Twp. v. Chestnut Hill & N. R. Co. 168 Pa. 181. The legislature can, without consulting the municipality, grant the right to a street-railway company to lay its tracks on the streets of the city. Central Railway & Electric Co.'s Appeal, 67 Conn. 197. A city can impose no terms on the construction of a street railway upon its streets, where & The power to grant easements in the public court affirming the decree of the Circuit streets, in perpetuity and in monopoly, must Court of the County of Wayne, in said state, be conferred in express words, or, if inferred dismissing a suit in equity brought by the from other powers, it is not enough that the authority is convenient to them, but it must Detroit Citizens' Street Railway Company against the city of Detroit et al. to enjoin said city et al. from acting under an ordinance granting to others the right to construct street railways upon certain streets in be indispensable to them. [No. 236.] Argued April 26, 27, 1898. Decided May 23, said city. Affirmed. 1898. IN ERROR to the Supreme Court of the State of Michigan to review a decree of that the city's consent is not made necessary for the construction of the road. Philadelphia v. Empire Pass. R. Co. 177 Pa. 382. 227. A street-railway company has the right to diverge from the highway and to construct its railroad on property secured for that purpose In order to avoid a grade crossing at the intersection of a railroad. Pennsylvania R. Co. v. Glenwood & D. Electric Street R. Co. 184 Pa. The provision of N. Y. Const. art. 3, § 18, requiring the consent of the abutting owners and local authorities, or the substituted consent of the court, to the grant of street-railroad franchises, does not authorize the legislature to confer upon local authorities power to consent to such a grant if otherwise illegal, or prevent It from repealing such power by subsequent legislation. Norris v. Wurster, 23 App. Div. 124. The consent of all the local authorities through whose districts the established route of an electric passenger railway passes must be obtained, in Pennsylvania, before any part of the road can be built. Reading Co. v. Schuylkill Valley Traction Co. 14 Mont. Co. L. Rep. 10. A permit granted by the park commissioner of the city of Brooklyn, under N. Y. Laws 1888, chap. 583, tit. 16, § 2, subd. 5, which designates the location for a railway switch, will not authorize its construction in the absence of the consent of the common council, since the provisions of N. Y. Laws 1896, chap. 825, do not Impliedly repeal the ordinance making such consent necessary. Irvine v. Atlantic Ave. R. Co. 23 App. Div. 112. The consents of abutting owners to the construction of a street railway, contemplated by the New York Constitution and the railroad act, cannot be acquired by an individual and assigned by him to a corporation thereafter organized to construct the road, but they must be given in the first instance to a corporation anthorized to construct the road. Geneva & W. R. Co. v. New York C. & H. R. R. Co. 24 App. Div. 335. A city may require the payment of license fees as a condition of granting a franchise to a street-railroad company, and such company on accepting the franchise becomes liable to pay the fee, under the provision of the Illinois statute. Byrne v. Chicago General R. Co. 169 Ill. 75. A corporation Incorporated under the Pennsylvania general railroad laws as a steam railroad company cannot acquire the rights and franchises of a street passenger railroad company, without reincorporation under the street railroad laws. Potts v. Quaker City Elev. R. Co. 161 Pa. 396. A corporation organized under Pa. act April 4, 1868, becomes necessarily a steam railroad for the carriage of passengers and freight in the manner provided by the general railroad laws, and has no power to carry on the business of a street passenger railway company. Com., Atty. Gen., v. Northeastern Elev. R. Co. 161 Pa. 409. That a street-railway company under its general corporate powers may have the authority to receive an estate in the streets beyond its own life does not necessarily empower the city to grant such an estate. Detroit v. Detroit City R. Co. 56 Fed. Rep. 867. Conditions imposed by a municipa! corpora. Statement by Mr. Justice McKenna: The plaintiff in error is a street railway company of the state of Michigan, organized tion in giving the consent required by Pa. Const. art. 17. § 9, to the construction of a street railway within its limits, that a fixed fare shall be charged for passengers and a certain percentage of the dividends be paid to the city,are valid. Allegheny v. Millville, E. & S. Street R. Co. 159 Pa. 411. The "public convenience or necessity" contemplated by Conn. Pub. Acts 1893, chap. 169, § 8, providing that no street railroad shall be built or extended from one town to another in the public highways so as to parallel any other street or stean railway, unless the superior court or a judge thereof shall have found that public convenience or necessity requires its construction,-means such a condition existing at the time of the application in respect to the applying railroad, the mode of public travel, the manner in which those needs are to be supplied, and the probable effect of the proposed road upon the whole question of adequately supplying those needs, as well as in respect to the road proposed to be paralleled, that in the judgment of the trior will justify the interference with the private right of the latter road. Re Shelton Street R. Co. 69 Conn. 626. An obligation to maintain a street rallway is not imposed by the grant of a mere privilege to construct and maintain it. San Antonio Street R. Co. v. State, Elmendorf, 90 Tex. 520, 35 L. R. A. 662. A municipality has no authority to grant a right to lay a street-railway track in an alley and operate cars thereon, where, in view of the narrowness of the alley and the frequency with which the cars are required to be run, it would result in the loss of the benefit of the use of the alley to the abutting owners. Watson v. Robertson Ave. R. Co. 69 Mo. App. 548. Time fixed by Civ. Code, & 502, before its amendment in 1895, within which a streetrailway track must be completed in order to preserve the franchise to occupy the street, cannot be changed in the grant of the franchise. People, Warfield, v. Sutter Street R. Co. 117 Cal. 604. City may attach to grant of the right to occupy its streets with street-railway tracks conditions necessary to protect itself from pecuniary liability and to secure the health and welfare of its citizens, and may resume the rights granted, upon noncompliance with such conditions by the grantees or their successors. Springfield v. Robertson Ave. R. Co. 69 Mo. App. 514. The consent of the local authorities having control of the street and of the owners of one half in value of the abutting property required by N. Y. Const. art. 3, § 18, and of the N. Y. railroad law, § 91, to construction, extension, or operation of a street railroad, is necessary to entitle a street railroad company to use the line of another company. Colonial City Traction Co. v. Kingston City R. Co. 153 N. Y. 540, Affirming 15 App. Div. 195. A municipality does not waive the forfeiture of the franchise of a street railway company to maintain and operate its road in the streets for nonperformance of conditions subsequent, by its failure to take any action to remove the tracks after the breach of the conditions, or to take any proceedings to have the franchise declared forfeited. People, Warfield, v. Sutter Street R. Co. 117 Cal. 604. A street-railway company which has accepted |