Page:Woods v. Carl.pdf/3

330 note sued on, and the payment of the sum of $200, executed to appellee a written contract reciting that they "have sold, and by these presents do sell, to Frank Carl of Little Rock, Ark., party of the second part, an in divided one-half interest in our business to be known as the Human Gas Company of Arkansas for the sale and manufacture of the Human Automatic Acetylene Gas Generator in the said State of Arkansas."

The court instructed the jury as follows: "If you find that this note was given for a patent right machine, or territory, you will find for defendant; if not, you will find for plaintiffs." To which instruction plaintiffs excepted.

The jury returned a verdict for the defendant, and the plaintiffs appealed.

Mechem, & Mechem, for appellants.

The court erred in refusing to direct a verdict for the plaintiffs, and in submitting the case as coming within section 513 of Kirby's Digest. 67 Ark. 575; 70 Ark. 200; 97 U.S. 501; 36 Oh. St. 370; 39 Oh. St. 236; 86 Pa. St. 173; 70 Ill. 110; 37 Mich. 309; 3 Lea, 22; 14 Neb. 134; 23 Minn. 24; 2 Biss. 309; 2 Flip. 33; 25 Fed. 394; 51 Fed. 774; 118 U.S. 356; 120 U.S. 68; 183 U.S. 79; 184 U.S. 540; 127 Fed. 206.

Ratcliffe & Fletcher, for appellee.

The evidence showed that the note was given for a patent or patent right. 17 Wall. 543; 67 Ark. 575. Our statute is not in conflict with the power of Congress. 60 Ark. 114; 70 Ark. 200; 41 L.R.A. 548; 107 Tenn. 499; 108 Ind. 307; 109 N.Y. 127; 102 Ind. 528; 116 Ind. 118 ; 105 Ind. 250; 41 S.W. 447; 86 Pa. 173; 75 Pac. 110; 103 U.S. 344; 97 U.S. 511; 36 Oh. St. 370. Our statute is not in conflict with the Fourteenth Amendment. 170 U.S. 293; 173 U.S. 404; 174 U.S. 96; 185 U.S. 308; 194 U.S. 267; 103 U.S. 344. 

McCULLOCH, J., (after stating the facts.) The note sued on does not conform to the provisions of the act of April 23, 1891 (Kirby's Dig. §§ 513–516), in that it does not show upon its face that it was executed in consideration of the sale of a patented article or patent right.