Page:Federal Reporter, 1st Series, Volume 9.djvu/785

 770 FEDERAL REPORTER. �-the purifier, through or between rolls, and subsequently bolting and grinding the same for the purposes set forth." �Now, it will be observed that the language of the process-patent contract, before quoted, is this: "For and in consideration of the sum of $125, to me in hand paid, I hereby sell, assign, and set over to Edward P. Allis & Go., of Milwaukee, Wisconsin, the exclusive right to manufacture and sell rolls for crushing grain or middlings or other substances." �In Downton v. Yaeger Milling Co. supra, the defendant set up this contract as an assignment to Allis & Co. of all of Downton's rights ; and upon that question Judge Dillon, in bis opinion, says that in order to enable the milling company to avail themselves of this con- tract as such an assignment — �"It must appear on its face to be a complete assignment of Downton's riglits; if net, he ean maintain this suit if net otlierwise equitably estopped. Now, did he by this instrument assign his riglits under the process patent? He says: 'I grant to them the exclusive right to manufacture and sell rolls for crushing grain or middlings or other substances, * * * which right or pro- cess to manufacture and sell rolls is seeured to me by said patent.' This seems to be based on a mistake from the beginning to the end. It is said, however, by the defendants, that he meant to convey something, and you must put a con- struction on it so as not to defeat the operation of the instrument ; but my judgment: is, since this does not operate intrinsically or ex proprio vigore as an assignment by Downton of his rights under that patent, they remain in him, and will remain in him as against Allis & Co., until Allis & Co. shall secure by the decree of a court in equity, if thereto entitled, a specilic execution of an assignment of the process to them." �This is unquestionably a correct construction of the contract. If, then, it be determined that this instrument on its face does not con- vey the title to this patent to Allis & Co., the question properly arises in this suit, wherein Allis & Co. are seeking in effect the decree for a specifie execution of an assignment of the patent to them, did the parties to this contract intend to convey the absolute ownership of the patent to Allis & Co. ? And clearly the burden of showing that such was the intent of both the parties to the contract is cast upon the defendant Allis. �Upon consideration of the testimony I am not prepared to say that it was not at the time thought by Allis that he was aequiring an interest in the patent; but I think it is quite clear, in the light of all the testimony, and all the circumstancea under which these varions contracts were executed, that it was not so understood by Downton, ��� �