
    Samuel Pryor v. Jedediah Coulter.
    Columbia,
    May, 1830.
    The plaintiff by a deed, executed in his own name, but reciting that he. was attorney of the patentee of a certain invention granted, sold, and conveyed to the defendant, a right to use the said invention. Held, that the deed could not bind the patentee, not being executed in his name; but that in an action on a promissory note for the purchase money, it lay upon the defendant to shew, that the plaintiff himself had not the interest which his deed purported to convey to the defendant, or that the latter had been disturbed in the enjoyment of the rights intended to be conveyed to him by the deed.
    A deed executed by an attorney does not bind bis principal, unless it is executed in the name of the principal. - Although it recite the authority, yet if it is executed in the name of the attorney, it is his own deed.
    Where the defence to a promissory note is a failure of consideration, the onus lies on the defendant to shew the failure, although it involve the proof of a negative: and if the consideration consist of covenants, the defendant must prove a breach.
    If one grant a right to use and vend a patented invention, within a certain State, except in fourteen counties, and undertake to furnish a list of the counties to be reserved, the grantee is at liberty to make the selection, until the list is furnished.
    Tried before Mr. Justice O’Neall, at York, Spring Term, 1830.
    Assumpsit upon a promissory note. Defence, failure of consideration. The plaintiff, by a deed which constituted the consideration of the note on which this action was brought, granted, sold, and conveyed to the defendant, the exclusive right to use, and vend for use, within the State of Georgia, except in fourteen counties, an invention of an improved mode for the circular sawing of timber, for which one Benjamin Overman, the inventor, had obtained a patent; and the deed authorized the defendant to maintain actions against any person, or persons, who should infringe the said right within the said limits, in the body of the deed the plaintiff designated himself “ attorney for Benjamin Overman,” but his own name alone was subscribed to the execution, and there was no note or memorandum, that the deed was executed in the name of Overman.
    It was contended for the defendant,' that the deed did not bind Overman, as it was not executed in his name; and as it professed to transfer nothing more than the rights of Overman, and was ineffectual for that purpose, it was a mere nullity, and therefore the consideration of the note failed. The presiding Judge was of opinion, that the deed did bind Overman, if iti fact' the plaintiff was duly authorized to bind him. The plaintiff pretended in the deed to act in no other character than that of Overman’s attorney, and the attestation in his own name could not, upon any intelligible principle, vary the character of the act it was intended to authenticate, and that too contrary to the manifest intention.
    Several other grounds were taken in the defence. The defendant denied that the plaintiff was properly authorized to act for Overman, as his attorney, and called for proof of his authority, The plaintiff introduced some evidence of the existence, and loss, of a letter of attorney to him from Overman, and of subsequent declarations by the latter, that the plaintiff was authorized to sell his rights under the patent, and that he approved and confirmed the sale to defendant. The defendant contended,. that the evidence was insufficient, and that, at most, it merely established an authority to sell the use of the patent right, and not an authority to transfer a right of action for infringements of the patent.; and it was incumbent on the plaintiff to shew his authority when called upon to do so. For if he had no authority, nothing passed by his deed ; and the defendant was not to be put to the proof of a negative. Evidence was also introduced by the defendant of an agreement by the plaintiff to furnish a list of the fourteen counties to be reserved, which list it was admitted had not been furnished; and it was urged, that until this list was furnished, the defendant could not venture to use or vend the patent right in any part of the State of Georgia, and this injury being the result of the plaintiff’s default, he ought not to be permitted to maintain the present action.
    The presiding Judge held, that the grant of an exclusive right, necessarily implied the grant of a right to maintain actions for an infringement of it; and an authority to transfer the one, carried with it an authority to transfer the other. But it was unnecessary to decide that question,or evento determine, whether the evidence was sufficient to establish any authority,, whatever, in the plaintiff. In this action the onus• lay upon the defendant to shew, that the plaintiff had no authority ; and although this involved the proof of a negative, it was a condition which the defendant had voluntarily assumed by accepting the deed. Nor was there any hardship in it. If the defendant had been disturbed in the enjoyment of the rights which he had purchased, it might easily be proved, and would be a good defence: but of this there was no pretence, and the presumption was therefore in favor of the authority. It might be difficult for the plaintiff to prove the existence of the authority, although in fact it did exist. It was enough for the defendant, that he had been, and still was, in the enjoyment of every right, which he could claim,' if the plaintiff’s authority were most fully proved. He had not questioned the authority when he accepted the deed, and ns long as his rights under it were not disturbed by third persons, there was little equity in his questioning it now, when he was called upon to perform his part of the contract. As to the default of the plaintiff in relation to the reserved counties, it injured no one but himself, or his principal; for until the list was furnished, the defendant might'himself make the selection, and the plaintiff’s negligence therefore was no ground for discharging the defendant.
    The jury under the charge of the Court, found for the plaintiff; and the defendant now moved the Court of Appeals, to set aside their verdict for misdirection, on the several grounds robed on in the Circuit Court.
    Williams, for the motion,
    cited Willes, 105. 1 Livermore on Agency, 105. Frontín v. Small, 2 Ld. Raym. 1418. White v. Cuyler, 6 T. R. 176. Wilks v. Back, 2 East. 142. Harper v. Hampton, 1-Har. & Johns. 622, 687. Fowler v. Shearer, 7 Mass. 14. and Simonds v. Catlin, 2 Caines, 61, 66.
    Rogers, contra.
    
   Johnson, .T.

delivered the opinion of the Court.

The result of this cause in the Circuit Court is in conformity with the opinion of this Court as to the law of the case. Differing, however, in some degree, as to the legal effect of the deed, by which the plaintiff undertook to convey to the defendant the right of the patentee, Overman, to the invention for sawing circular timber, it is thought necessary to express it in our concurrence.

This deed, after reciting that letters patent had been granted by the United States to Overman for this invention, proceeds: “ Know all men by these presents, that I, Samuel Pryor, attorney for Benjamin Overman, of &c.” “ m consideration of the sum of $200, to me in hand paid by Jedcdjah Coulter, have granted, sold, and conveyed, &<•.” “unto the said Jedediafe Qouiter> jjjs heirs, &e.” “ the full and exclusive right and liberty making,, constructing, using, and vending to others to be used, the said improvement within and throughout the State of Geor- • • gia, except fourteen counties.” And it further authorized the defendant to sue any one, who shall use, or vend it, within those limits, This deed is signed and sealed by the plaintiff in his own name, without using the name of Overman in any manner; but was notwithstanding, according to the views of the Circuit Court, binding on Overman as the principal.

There is nothing in the terms of this deed, or apy of the covenants in it, which professes to impose any obligation on Over-man. It is the undertaking of the plaintiff alone. It is “ I, Samuel Pryor,” who undertakes to convey the right to make, use, and vend; and “ I, Samuel Pryor,” who authorizes the defendant to sue for a violation of the patent: and the recital that he was the attorney of Overman is, in a legal point of view, inoperative, and unmeaning.

If we suppose, however, that under the powers which the plaintiff derived from Overman, he might lawfully bind him, and that the covenants in this deed were intended to have that effect, still he is not bound, as the deed was not executed in his name, but m that of the plaintiff. The rule on this subject is very clear. If the agent deal in his own name, be, and not his principal, is bound. To charge the principal, the agent must deal in his name. In White v. Cuyler, 6 T. R. 176, Lord Kenyon said, that “ in executing a deed for the principal, under a power of attorney, the proper way is to sign the name of the principal.” In Wilks v. Back, 2 East. 142, it became a question, whether the execution of a bond by an attorney, in this form : “ For Janies Brown, Mathias Wilks, (n. s.)” bound the principal; and Lawrence, J. remarked, that it was enough that it denoted that the sealing and delivery were for James Brown. No particular form of words was necessary, provided the act was done in the name of the principal; and so is the whole current of authorities.

The conclusion, to which the Court has come on this point,' does not, however, militate against the rights of the plaintiff, nor remove the liability of the defendant. The contracts between these parlies were independent. On the part of the plaintiff, that he was authorized to convey to the defendant, Ovemiau’s interest in the patent; on the part of the defendant, that he would pay to the plaintiff the sum of money contained in the note: and we concur with the presiding Judge, that it was' incumbent on the defendant to shew, by way of defence, that the plaintiff had Violated some covenant contained in his deed, which gave him a right of action ; or that he had not the interest in the thing, which he pretended to convey, as shewing a want of consideration. In this he has clearly failed. He has not been disturbed in the enjoyment of any of the rights intended to be conveyed. If he alleges a want of consideration, he was bound to shew it; and in this he,has failed. Overman has himself affirmed the act of the plaintiff, and it will be presumed, that it was executed according to the authority.

In relation to the counties reserved, I will only further remark, that until they are designated by the plaintiff, they are tenants in common, so to express it, of the whole State, in the proportion of fourteen counties to the whole State; and until that is done the defendant may make, use, or vend the invention in any of them* He has therefore suffered no injury in that respects

Colcock, J. and Evans, J. concurred.

Motion refused.  