Stanley v. Whipple. 2 McLean. he claimed the patent-right. This was, in fact, shown by the contract itself. But he gave his patent in evidence, and proved that he not only claimed a patent, but that he had obtained one, which was the evidence of his exclusive right. The declaration does not aver that a patent had been obtained, nor that the exclusive right was vested in him. And if he did not possess the exclusive right, there was no sufficient consideration to support the contract. It is an instrument not under seal, and does not, on its face, purport a consideration. [* 42 ] *We think the declaration is defective in not containing the necessary averments; and if the question had been raised by general demurrer, the objection must have been fatal. But the point is brought to our consideration after verdict, on a motion in arrest of judgment; and it is important to inquire, whether the defect is cured by the verdict. The statute of jeofaile cures all defects of form, but a verdict often cures matters of substance. This is done by a legal intendment after verdict. Mr. Chitty, 1 vol. Plead. 712, says, that where there is any defect, imperfection, or omission, in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts defectively, or imperfectly stated, or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission, is cured by the verdict. 1 Saund. 228, n. 1. And again, he remarks, the expression, cured by verdict, signifies that the Court will, after a verdict, presume, or intend, that the particular thing which appears to be defectively, or imperfectly stated, or omitted, in the pleading, was duly Stanley v. Whipple. 2 McLean. proved at the trial. And such intendment must arise, not merely from the verdict, but from the united effect of the verdict, and the issue upon which such verdict was given. On the one hand, the particular thing which is presumed to have been proved, must always be such as can be implied from the allegations on the record, by fair and reasonable intend ment. In illustration of this rule several cases are referred to, and, among others, one from 2 Bing. 464. The plaintiff in an action of assumpsit stated, that he had retained the defendant, (who was an attorney,) to lay out seven hundred pounds in the purchase of an annuity, and that the defendant * promised to lay it out securely; that the plaintiff [ * 43 ] delivered the money to the defendant accordingly, but that the defendant laid it out on a bad and insufficient security. After verdict, it was objected, on a writ of error, that no consideration appeared in the declaration; that it was not averred that the promise was in consideration of the retainer, nor that the retainer was for reward; but the Court held that it was absolutely necessary, under the declaration, that the plaintiff should have proved, at the trial, that he had actually delivered the money to the defendant, and that the latter had engaged to lay it out; that the delivery of the money, for this purpose, was a sufficient consideration to support the promise; and that, although it was not expressly alleged in the declaration, was, in fact, the consideration for the promise, the Court would intend, after verdict, that such was the consideration. And so in the case under consideration. The declaration does not aver that the plaintiff had obtained a patent, or that the exclusive right was vested in him; but he states that he claimed a patent, and that the defendant possessed and enjoyed the right under the contract; and from these statements, and the issue that was made up, the Court must presume Stone v. Sprague. 1 Story. that, on the trial, the exclusive right was proved to be in the plaintiff. The plaintiff's title was defectively set out, and, in such cases, after verdict, the Court will presume that the facts showing the right were proved on the trial. This intendment, we think, is fairly presumed from the allegations on the record. As, in our opinion, the defect in the declaration is cured by the verdict, it is unnecessary to say any thing on the general count for money had and received. To recover, under that count, it is necessary to show that money has been received; but a jury might well infer the receipt of the money from the fact of the sale of the stoves. And, although the [ 44 ] contract was * special, yet, if it appear to be executed, and not open and subsisting, it is a well-settled principle that the plaintiff may recover on the general count, for money had and received. * If the action be brought for a breach of the contract, and it has not been put an end to, by the act of the party, the remedy is on the contract, and not on the general count. In this case the plaintiff claims a right to recover only five dollars for each stove which the defendant has made and sold. He, therefore, goes for the money received, and not for damages for any other violation of the contract. The motion in arrest of judgment is overruled. AMASA STONE v. WILLIAM AND AMASA SPRAGUE. [1 Story, 270. June T. 1840.] Where a patent for an improvement on looms set forth, as the invention claimed, "The communication of motion from the reed to the yarn beam, in the connection of the one with the other, which is produced as follows," de Stone v. Sprague. 1 Story. scribing the mode; it was held, that the invention was limited to the specific machinery and mode of communicating the motion, &c., specially described in the specification. If it were otherwise construed, as including all modes of communicating the motion, &c., it would be utterly void, as being an attempt to patent an abstract principle, or for all possible and practicable modes of communicating motion whatsoever, though invented by others, and substantially different from the mode stated in the patent. CASE for an infringement of a patent-right for a new an useful improvement on looms, not known or used before, Plea, not guilty, with notice of special defence. At the trial it appeared, that the patent was dated on the 30th of April, 1829, and the specification was as follows. "Be it known that I, Amasa Stone, of, &c., have invented a new and useful improvement in looms, not known or used before my discovery, which consists in the communication of motion from the reed to the yarn beam, and in the connection of the one with the * other, which is produced and [ * 271 ] described as follows." Then follows a minute description of the particular machinery. The specification then concluded as follows, after setting forth the advantages of the invention: "I claim as my invention the connection of the reed with the yarn beam, and the communication of the motion from the one to the other, which may be done as above specified." Several points were made at the trial, upon which a good deal of evidence was offered. The defendants contended, (1.) That the invention was known before. (2.) That the loom used by them was not identical with the invention and machinery used by the plaintiff; but was a substantially different invention. (3.) That the patent was in fact a patent for an abstract principle, or all modes by which motion could be communicated from the reed to the yarn beam, and the connection of the one with the other, and not merely for the particular mode of communication specified in the machinery Stone v. Sprague. 1 Story. described in the specification; and that it was therefore void. On the other hand the plaintiff contended, (1.) That he was the first and original inventor. (2.) That the machines used by the defendants were substantially the same invention as his, and an infringement of it. (3.) That the patent, if it embraced all modes of communication of motion from the reed to the yarn beam, and in the connection of the one to the other, (as the plaintiff insisted it did,) was still good and maintainable in point of law. (4.) That if the specification did not justify this interpretation of the plaintiff's claim, it was still good, and clearly supported the claim to the particular machinery described in the specification, which the defendants had patented, and his patent had been infringed by the defendants. The case was argued by Atwell and Staples, of New York, for the plaintiff, and by Pratt and R. W. Greene, [* 272] for the defendants; and finally, the parties consented to a verdict for the defendants, upon the points of law ruled by the Court, and took a bill of exceptions thereto. STORY, J. Upon the question of the true interpretation of the specification, the Court entertains some doubt. But, on the whole, ut res valeat, quam pereat, we decide, that, although the language is not without some ambiguity, the true interpretation of it is, that the patentee limits his invention to the specific machinery and mode of communication of the motion from the reed to the yarn beam, set forth and specially described in the specification. We hold this opinion the more readily, because we are of opinion that, if it be construed to include all other modes of communication of motion from the reed to the yarn beam, and for the con ! |