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James Lansing, for applt,
Esek Cowen, for respts.

the exclusive right to use the invention,
made the agreement with plaintiff, who
gave up to them all rights under the
patent, and there being no fraud, and
defendants during the time mentioned
in the complaint having enjoyed all
Held, That it was not necessary for they could have had if the patent had
been valid; that there was abundant
the complaint to allege that the con-
consideration to uphold the agreement,
tract was in writing; it will be pre-
sumed for the purposes of the complaint. whether the patent was valid or invalid.
That the averment of the answer that 1 Cai., 45; 7 Barb., 590; 43 N. Y., 34;
an independent instrument was to be 1 N. R., 260; 88 E. C. L. R., 929; 7
executed was not inconsistent with the H. & N., 499; 8 Cl. & F., 726; 10 H.
existence of a contract in writing, of L. Cas., 293; 12 M. & W, 823; 38
E. L. & Eq., 48; Hindmarch on Patents,
embracing all the terms of the con-
tract, and if merely inconsistent, the 245; 1 Gray, 114; 4 Hun, 279.
contract alleged in the complaint not
having been denied, the averment.
did not put in issue the making of a
valid contract. Code, 149, 168;
21 Barb., 190; 44 Id., 175.

As to whether the statute of frands or the act of Congress requires such a contract to be in writing, quære.

The invalidity of a patent is a defence to an action for the purchase price of the same, on the ground of a failure of the consideration. 13 Wend., 385; 19 Id., 411; 2 Bosw., 387; 13 N. H., 317; 2 W & S., 270; 11 Ohio, 471; 8 Ind., 82; 7 Blackf., 138; but where one having a void patent which he can use and give others a right to use, surrenders this advantage to another, the latter, during the time he is

88

The defendants also claimed that the contract was void for want of consideration, in that the patent was invalid. It had been established in an action in permitted to use the patent unmolested, the U. S. Circuit Court, in which these gets what he contracted for, and is defendants were plaintiffs, and plaintiff bound to pay the agreed compensation. defendant, that the patent was void, 1 N. R., 260; 8s Eng. C. L. R., 929; because the patentee was not the first 7 H. & N., 499; 8 Cl. & F., 26; 10 H. inventor of the improvement patented. of L. Cas., 293; 12 M. & W., 823: 38 That judgment was not set up in the E. L. & Eq., 48; 1 Gray, 114; 4 Hun., answer, but the invalidity of the patent was alleged. The judgment was offered in evidence to prove the allegation, by defendants, and received.

279.

Defendants claimed on the trial that the contract not being in writing, or to be performed within a year, was void under the statute of frauds.

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As to where one has sold in good faith a void patent, and the assignee has enjoyed the monopoly for the whole term without molestation or liability to account to any one, there is a failure of

consideration which will defeat an ac

tion for the purchase pr ce, quære.

Judgment of General Term, affirm-
ing judgment for defendant, reversed,
and new trial granted.
Opinion by Earl, J.

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DAMAGES. CORPORATIONS.

SUPREME COURT OF IOWA.

McKinley, respt. v. Chicago and Northwestern Railway Company, applt.

Decided December, 1875.

it after it was done, this is not a case where exemplary or punitive damages can be allowed. The principal cannot damages against him for the willful, be punished by awarding exemplary wrongful or malicious act of his agent or servant, unless the wrongful act was done by the direction of the principal

A corporation is liable only for the actual damages caused by the wilful acts of its agent, done in the course of his employment, unless it shall or was afterwards ratified by him. have authorized such acts or ratify The extent of the damages in such them after they are done. The agent cases is what the law calls compensatory. alone is liable for all exemplary Compensatory damages embrace the damages arising out of such act. What are exemplary damages. reasonable expenses incurred by plaintiff, if any, in curing or endeavoring This action was brought to recover to cure the injuries he received; also damages for injury alleged to have been the damages suffered, if any, from the caused by beating and forcible resistance loss of time and inability to attend to of plaintiff by a brakeman of defend-business. resulting from the injuries reant, when plaintiff was about to enter ceived, also the bodily pain and suffera passenger car of defendant's at Howing, if any, resulting from the injuries received; and for the outrage and infrom the evidence that the plaintiff has dignity put upon him; and if you find not yet recovered from the injuries received, or if you find that the injuries are permanent, you should award such damages as you belie e, from the testitimony, it is fair to infer the plaintiff will suffer in the future.

ard Junction, Wisconsin, on March 22,

1872.

The plaintiff, a citizen of Iowa, in March, 1872, purchased of defendant in Chicago a ticket from there to Beloit. A change of cars became necessary at Howard Junction. The plaintiff endeavored to enter the rear car of defendant's train upon which he was to continue his journey, and was refused permission by a brakeman of defendant, who was charged with that duty, on the ground that it was a car set apart for ladies and gentlemen accompanying them. The plaintiff insisted upon entering the car, and a struggle there pon occurred between the brakeman and plaintiff, in the course of which the injuries complained of are alleged to have been received.

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Held, That in an action against a corporation for the willful acts of its servant done in the course of his em

Defense, general issue.

"There being no evidence in the case that the general officers of the defendant advised the wrongful act, or ratified

The court, upon the trial, charged ployment and in the discharge of his the jury as follows: duty, the corporation is liable for only the actual damages to the injured party; that for all exemplary damages growin out of such willful assault, the servant

alone is liaable; that if the corporation through its principal officers shall authorize the servant to commit the wrongful acts in his own wilfulness, or shall approve or ratify his willful acts after they are done, then such corporation is liable for all the damages, both actual and exemplary, which the party injured may have suffered. 34 Cal., 594; 19 Mich., 305; 10 Wis., 395; 57 Penn. St., 339; 19 Ill. 353; 40 Id., 543; 19 Ohio, 110; 47 N. Y., 122.

Also held, That pain of body may, upon the authorities, be classed among actual damages; but pain of mind or mental suffering can, if at all, be class ed as actual damages only when such mental pain or suffering grows out of or is inseparably connected with the actual injury received; that " outrage and indignity put upon one arise necessarily from the willfulness, wantonness, gross negligence or oppressive manner in which the injury is inflicted, and belongs to that class of damages for which the servant alone is liable.

99

CONTRACTS.

The judgment must be reversed for this error in the charge respecting the measure of damages.

Opinion by Cole, J.; Beck, J., senting.

ASSESSMENTS.

party to construct a tunnel sewer instead of an open one without readvertising for bids.

The Commissioners are not liable to parties who have paid the assessment for any surplus that may remain after the work is paid for; but the parties must look to the Common Council.

After hearing the parties an ordinance was passed which provided for "the deepening and enlarging of Platt dis-street outlet sewer, from the east high

bank in the rear of Jefferson Mills, leading to the west line of State street, by enlarging that portion under said mill, constructing a tunnel under the race, and deepening that portion of the sewer in Mill street and Platt street to

This action was brought to have certain proceedings of the Commissioners of Public Works of the City of Rochester, in relation to the construction of a sewer declared void, and to restrain the collection of an assessment therefor and the payment of moneys already collected. Plaintiff's are some of the owners of the real estate assessed, an i brought this action in behalf of themselves and others similarly inter

ested.

In January, 1874, a petition was filed with the Commissioners of Public

Works asking for an out let sewer in

Platt and other streets. The sewer was defined, except it was to be 25 feet deep.

N. Y. COURT OF APPEALS.

Lutes et. al., respts. v. Briggs et al., the west line of State street." applts.

Decided March 21, 1876.

An assessment was ordered for the estimated expense and was afterwards. made and confirmed.

Where the Commissioners of Public Works are authorized to contract for deepening a sewer, and after entering into a contract pursuant to such authority, for an open sewer, Held, that the Commissioners did not exceed their authority by entering into a

Proposals for the construction of the work were duly .dvertised for. One S. made a proposal in an alternate form, being "for sewer through Mill and Platt streets, per lineal foot $20, or for

subsequent contract with the same tunnel under Mill and Pratt streets, per

lineal foot, $25," and the contract was awarded to him "for $18,680 for an open cut and tunnel sewer.'

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seriously affect an important business street, and the objections to such change and the increase of expense were questions for the consideration of the Commissioners.

On April 24, 1874, some of the parties interested petitioned the Commissioners "to contract for a tunnel and not for an open cut," and on that day they passed a resolution that the vote awarding the contract for building an open sewer be reconsidered, and post-power was not entirely exhausted by poned further action. the original award, and there was no le

The Commissioners did not exceed their authority in making the final contract, and having already advertised, were not required to do so again; the

On May 1, 1874, the Commissioner, gal obstacle to their making an arrangewithout advertisiement or ordinance, ment contemplated by th proposal and awarded the contract to S. under the the bids. alternative in his proposal for a tunnel Also held, That as the charter, secunder Mill and Platt streets, and a tion 207, chap. 143, Laws of 1861 proformal contract was executed. It was vides that if, upon the completion of conceded that the proceedings were an improvement, it appears that a greatvalid up to the time of the award of er amount was assessed and collected the original contract. The referee than was required, such amount must found that the final letting was con- be apportioned by the Common Council trary to the ordinance, and illegal and and paid to the owners of the property void, and ordered judgment restraining on demand. the payment out of the funds raised by the assessment for work done under tha portion of the contract which previded for the construction of a tunnel under Mill and Platt streets.

tunnel within the strict meaning of the ordinance upon the petition of some of the parties interested, showing that a cutting down from the surface would

The remedy of plaintiffs was complete against the Common Council if any surplus remained, and was against the Commissioners.

That it is no answer to say that the remedy might be doubtful if the money had been expended and exhausted and paid out, fo any illegal expendi ture of it would not be a defence in an

C. Cochrane, for respt.

James Brick Perkins, for applt. Held, error; That the commissioners had ample authority under the ordinance to contract for the construction of the sewer, either by an open cut or by tunneling as might be deemed for the interest of the lot holders or the public; that the "deepening" of a sewer would of itself include any mode by which this could be accomplished; that the Commissioners were justified in chang

SUBROGATION.

ing the contract from an open cut to a N. Y. SUPREME COURT. GENERAL TERM.

SECOND DEPARTMENT.

action brought to compel the apportionment of such surplus.

Judgment of General Term, affirmin judgment on report of referee, reversed,

and new trial granted.
Opinion by Miller, J.

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Albert Cole, respt. v. Robert Malcom, impleaded, applt.

Decided February, 1876.

One who holds under a grantee of a claims paid out of the property so con-
fraudulent conveyance is not enti-veyed; that any one taking under her
led, on
the
a
judgment, to be subrogated to the must take the same rights she had, and
rights of the judgment creditor who no more; that the appellant made the
has had such conveyance set aside. payment voluntarily.
One C., who was largely indebt-
ed at the time, made an assignment of
certain lots of land owned by him to
his wife without consideration, and for
the purpose of defrauding his creditors.
Ilis wife afterwards died, childless and
intestate, and the property descended
to the defendant and her other heirs.
at law.

That appellant is entitled to redeem
the property, but it cannot be tolerated
that C. should make good the failure of
the gift to his wife out of subsequently
acquired property.

Order affirmed, with costs.
Opinion by Pratt, J.; Barnard, P.
concurring.

Subsequently to this the plaintiff ob

SUBROGATION.

tained a judgment against said C., the N. Y. SUPREME COURT. GEN'L TERM
execution upon which was returned un-
satisfied. He thereupon brought this
action against C. and the heirs at law
of the wife to have the conveyance set
aside as fraudulent and recovered judg-One
ment therein which was afterwards af-
firmed.

THIRD DEPARTMENT.
Bloomingdale v. Barnard.
Decided May, 1876.

who, after foreclosure, purchases
of the mortgagor a term of years,
and agrees to pay incumbrances
thereon, so far as may be necessary
to protect his title, does not stand in
the position of a surety, and is not
entitled to be subrogated.

The lots were advertised for sale, and the defendant thereupon tendered the amount of the judgment to the respondent or his assignee, and demanded an assignment of the decree in this case, and also of the judgment in the form er action. The assignee offered to assign the decree but not the judgment.

Upon this state of facts defendant made a motion that the assignee be compelled to assign to him the decree and the judgment in the former case, and that he, said defendant, be subrogated to the rights of the plain ift.

This motion was denied, and defend ant appealed from the order of denial.

Hamilton Odell, for respt. John R. Pos Passos, for applt. Held, That the conveyance to the wife was fraudulent as against creditors, and that she took the title subject to the right of the creditors to have their

This action was brought to enforce an assignment of certain claims, notes, and judgments held by defendant upon payment to him of the amount due on certain judgments of foreclosure. This is an appeal from an order restraining a sale by defendant under two judgments in foreclosure, upon premises called No. 1 and No. 2 respectively, which had been assigned to him, and to both of which actions the plaintiff was a party. Subsequently to the giving of the above mortgages, the mortgagor, R., gave a mortgage to the defendant on parcel No. 1 and other property. The property is insufficient to pay this debt. The plaintiff is a party to a foreclosure now proceeding upon that mortgage.

R. subsequently mortgaged Nos. 1

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