Page:Federal Reporter, 1st Series, Volume 9.djvu/786

 DOWNTON V. ALLIS. 771 �and of course if the contract does not in terms carry the patent, or convey all of Downton's rights under the patent, then it must be made to appear, in order to sustain the claim of Allia, that it was nevertheless the intent of both the parties that the title should be conveyed by that contract. �It is true that this agreement giving the right to manufacture and sell rolls for crushing grain or middliugs excepta from its operation the shop right to manufacture and sell in the state of Minnesota, which was granted to 0. A. Pray, of Minneapolis. And it must be admitted that this exception, thus expressed, is a circumstance which sustains the construction put upon this contract by counsel for Allis, namely, that it was the intention of both the parties that Downton's entire right under the patent should pass, since the evidence shows that a right to sell the process in the state of Minnesota was trans- ferred by Downton to Pray, and was exeepted in the contract with Allis & Go. But that fact or circumstance, I think, is not powerful enough to outweigh other circumstances in the case which lead my mind to the conclusion that Downton did not understand that he was transferring absolutely to Allis all his right and title to the patent at the time he made this contract ; and those circumstances are not, I think, overcome by the proofs offered on the part of Allis. �It is in evidence that the parties to this contract, soon after they began their joint operations, prepared a circular, the authorship of part of which Allis admits. In another part of this circular, prepared by Downton, he declares substantially that he is the owner of the patent, and that all licenses to use the process must emanate from him. The court does not overlook the fact that Allis testifies that he did not at the time know that Downton had made such a statement in this circular. Nevertheless, it was a document that emanated from the offices of Allis & Co., and was put in circulation; and I think, under all the circumstances of the case, the circular must be regarded as having been jointly produced by the parties and pub- lished by them, so that both became eijually affected thereby. Then there is a further fact in the case, that Leggett & Co., attorneys in Cleveland, Ohio, at one time made a demand upon Allis & Co. of payment for services rendered in preparing an opinion upon the validity of this patent ; and in the communication which Allis & Co. made in response to this document they declined to make payment, upon the ground that they were not the owners of the patent. In this connection it should be said that Allis testifies that he was not personally informed that such a communication had been sent to ��� �