
    J. Thomas Jones, App’lt, v. George A. Reynolds, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    1. Statute of frauds—Patents—Agreement not in writing—TJ. S. Rev. St at., § 4898.
    Section 4898 of the United States Revised Statutes, making void any agreement as to patents not in writing, has reference solely to patents or an interest therein. It does not relate to an invention which has not been and may never be patented.
    2. Same—Acceptance.
    Plaintiff sold defendant a certain device, and made the only delivery possible by giving him a model which defendant retained over a year without returning or offering to return it; and defendant made an application for and obtained a patent for a combination of elements which included plaintiff’s device. Held, that it could not be held as a matter of law that he did not accept and receive the thing sold.
    Appeal from a judgment of the general term, fourth department, entered on an order affirming a judgment of non-suit rendered against plaintiff at circuit.
    
      William Townsend, for app’lt; Edwin H. Bisley, for resp’t.
    
      
       Reversing 7 N. Y. State Rep., 586.
    
   . Parker, J.,

The plaintiff invented and applied to a metal shoe last a device which both plaintiff and defendant believed to be an improvement.

Such device was the individual property of the inventor and as .such the subject of sale by him. 2 Kent’s Com., 366; 50 How. Pr., 194; Palmer v. Dewitt, 47 N. Y., 532; Tabor v. Hoffman, 27 N. Y. State Rep., 756. By an oral contract tlie plaintiff sold the invention to the defendant and at the same time delivered to him. a model which he took and retained.

The parties differ as to the terms of the contract. The plaintiff testifying that the defendant agreed to pay him $500 for tlie invention if he made any use of it. And the defendant, that he contracted to pay $500, if he used it on all his lasts, $250, if he used it on one-half of them * * * and nothing if he did not use it on any of his lasts.

This difference is of consequence in view of the fact that up to the moment of the trial the defendant had not used the device on any lasts whatever. If his version of the agreement therefore be the true one it follows that he is not indebted to the plaintiff.

But it appears that the defendant, after receiving the model, applied for and obtained a patent for a combination of the several elements or parts of a metal shoe last, which included the device sold him by the plaintiff. This act the plaintiff claims amounted to a use of the invention sold defendant within the terms of the agreement, as testified to by him.

Thus was presented, as we think, a question for the jury, for upon them and not upon the court devolved the duty of determining which party correctly stated the terms of sale. A reversal of the judgment is therefore required unless the non-suit can be supported on other grounds. Three grounds were assigned for non-suit and pressed upon our attention here, which we shall briefly consider.

First. The objection that because the agreement is not in writing, it is void, within the provision of § 4898 of the United States-Revised Statutes, is not well founded. Burr v. De La Vergne, 102 N. Y., 415; 2 N. Y. State Rep., 414; Walker on Patents, § 274. That section has reference solely to patents or an interest-therein. It does not relate to an invention which has not been, and may never be patented.

Second. The assertion that a recovery cannot be had for that the invention is valueless is not supported by the evidence.

It does not appear that the device was known to the prior state of the art upon the subject of metal lasts or that for any reason it was not patentable, and therefore not an invention in a legal sense. The defendant’s evidence in effect is that the device in its present condition is impracticable; that “the idea is there ” and with some alteration might be used. The device was therefore the subject of bargain and sale.

And the purchaser in agreeing upon the price to be paid may have erred as to its value. But the consequences of his error of judgment, if such there were, could no more be avoided in this, than in other contracts. This the defendant evidently understood, for he provided that the agreed price should be payable only in case he “made use of the invention,” as testified-to by the plaintiff, or in case he “ used it on his lasts ” according to the evidence adduced by the defendant.

Third, It is insisted that inasmuch as- the contract was not. ■“made in writing” it is void, because the defendant did not "“ accept and receive” the thing sold; or, “at the time pay some part of the purchase money ” as required by the third section of the second title of the Statute of frauds. It will be observed that the plaintiff did not undertake to procure or sell a patent. He sold the device merely. The defendant was at liberty to .make such use of it as he saw fit. And the plaintiff at the time made the only delivery possible of the thing sold. He delivered to defendant a model of the invention. By that act he placed ■ him in possession of the device in condition for practical use. As no part of the purchase money was paid the question presented is whether the defendant accepted and received the thing sold so as to take the contract out of the statute ? The act of acceptance Is something over and beyond the agreement of which it is a part performance and which it assumes as already existing. It is ■a fact to be proven as are other facts. Acts of ownership constitute a strong evidence of acceptance. Reed on Statute of Frauds, § 261. So too does a long and unreasonable delay in returning goods. 15 Q. B., 428; id., 442 ; 39 Conn., 31.

If a vendee does any act with reference to the thing sold, of wrong If not the owner, or of right if he is the owner, it is evidence that he has accepted it. Parker v. Wallis, 5 Ellis & Blackburn, 21.

The rule may be broadly stated, that any act from which it may be inferred that the buyer has taken possession as owner presents a question for the jury to determine whether the act was done with intent to accept. Baines v. Jevons, 7 C. & P., 289; Pinkham v. Mattox, 53 N. H., 605; Gray v. Davis, 10 N. Y., 285; Browne on Statute of Frauds, § 321. In this case the defendant took the model into his possession, retained it over a year without returning or offering to return it, and made an application for and obtained a patent for a combination of elements which included the plaintiff’s device.

In view of these acts on the part of the defendant it cannot be held as a matter of law that he did not accept and receive the thing sold. For each of the acts enumerated were of right to be -considered as evidence upon that question. Whether there was an acceptance constituted a fact to be determined from the evidence we have referred to, considered in connection with all the •other facts and circumstances proven. That question was properly for the jury. The non-suit is not therefore sustainable on the ground that the oral contract is within the condemnation of "the Statute of Frauds.

The judgment should be reversed.

All concur; except Folleto?, Oh. J., not sitting.  