Page:Federal Reporter, 1st Series, Volume 10.djvu/488

 476 FEDERAL REPORTER. �Now, it is contended by the learned counsel for complainaut that at the time Stromberg sold the machine in question \o Miller he had no title which be could convey, and that no conveyance he could then make would enable Miller to use the machine without infringement of the patent. Further, that as the title to the patent in 1875 was vested in the Barrel-Pitching Machine Company, of Baltimore, Holbeck could not and did not by bis agreement with Stromberg, convey to or vest in bim any interest whatever in the patent. �It is also insisted that as the legal title did not pass from the Bar- rel-Pitchiug Machine Company to Holbeck, Smith, and Comegys by virtue of the conveyance made December 11, 1875, because of infor- mality in the execution of that conveyance, Comegys, on the seventh day of June, 1876, had no title or interest which he could convey to Stromberg, and that Stromberg did not at any time have any title to or interest in this patent, and certainly none which eaured to the benefit or for the protection of Miller, who had made his purchase long anterior to these transactions. It bas been also argued that the title to the patent never passed out of the Barrel-Pitelung Machine Company, so that it became vested as a legal title in Holbeck, Smith, and Comegys, until the second assignment from. the company, made in February, 1879, and that Smith and Comegys then assigned their entire interest to Holbeck. �It is true that neither the assignment from Holbeck to Stromberg, nor that from Comegys to Stromberg, contained any express warranty of title, and I am inclined to the opinion that counsel for com- plainant is right in his contention that the legal title which Holbeck and Comegys subsequently aequired did not enure to the beneat of Stromberg. It is also probably true that, since the assignments from Holbeck to Stromberg and from Comegys to Stromberg did not contain an express warranty of title, no implied warranty could arise, because those assignments were not of the entire patent, but were only of the assignors' interest in the patent, whatever that might be. So that, standing upon strict legal principles applicable to after-aequired titles, it would seem there is force in the claim that the subsequent titles which Holbeck and Comegys aequired did not enure to the benefit of Stromberg. I think the court might be constrained so to hold if that were all there is of the ease. It appears, however, that after the first assignment was made from the Barrel-Pitching Machine Company, which it may be admitted was ��� �