
    G. W. Miller, for another, vs. M. H. Deal, et al.
    Where, in an action upon a sealed note given for a patent, the defence is that the payee, who represented himself to be the assignee of the patentee, had no title, the onus of showing the want of title is on the defendant.
    BEFORE GLOVER, J., AT ABBEVILLE, FALL TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of debt, on a single bill, for nine hundred dollars, dated the 23d October, 1851, and payable twelve months after. The consideration of the single bill was “ the full and exclusive right and liberty of making, constructing, using, and vending to others to be used,” within the District of Abbeville, “ Earnam’s double acting hydraulic and force pump.” In the plaintiff’s deed, conveying this right to the defendants, it is recited that he had purchased from the patentee the exclusive right to make, use and vend “ Earnam’s double acting hydraulic and force pump,” in North and South Carolina, and in two counties in Tennessee, “which purchase is evidenced by a deed made to the said George W. Miller, by Dudley L. Earnam, the patentee, bearing date the 14th day of August, 1850.” The deed further recited, that the letters patent were granted the 3d of April, 1849, for the term of fourteen years. The defendants showed, by the production of an exemplification from the Patent Office, that the letters patent were dated 3d April, 1847, and not in 1849, as was recited in plaintiff’s deed. In his negotiation with Deal respecting a sale of his patent the plaintiff stated that the pump was adapted to several purposes ; that it would meet a ready sale for wells twenty-five or twenty-eight feet deep; and, if deeper, by placing the pump in the well so that the hydraulic action would be within twenty-five or twenty-eight feet of the surface of the water, the water could be forced out thirty feet by the other, or force action; that it would convey water, horizontally, fifty or sixty yards in pipes, and that any little boy could work it. There was much difference of opinion expressed by the witnesses respecting the utility of the pump, and its adaptation to the purposes professed by the plaintiff. All who saw the model concurred that it performed well. W. Morris, a mason, Bodfish, a mill-wright, H. W. Lawson, a machinist, T. A. Rogers and M. Gr. Taiman, testified that it would not draw and force the water as the plaintiff had represented. Dr. Livingston said that he had used one at his mill, worked by steam; that it was valuable, and answered his purposes. His drew water to the depth of twenty-eight feet, and afterwards forced it into a tank five feet above the well. E. J. Taylor saw the one used by Dr. Livingston; it worked well, and answered all the purposes of drawing water from wells. John Wilson, who is a machinist and a patentee for two inventions, examined the model of this pump ; approved the principle upon which it is constructed; and believes it is adapted to all purposes to which a double action force pump can be applied. There is nothing novel in the valves, except the convenience of getting at and repairing them. He saw Dr. Livingston’s, which works well, and would do better with large.r pipes. A boy could raise water with it, if a lever be applied. He had bought one, in Anderson District, and he has no doubt but that, he will raise water from his well, which is fifty-five feet. The principle is excellent, and if there be a defect it is in the workmanship.
    “ The defendants relied upon a failure of consideration, and fraud and misrepresentation.
    “ I instructed the jury, that without an offer to surrender their patent, the defendants could not avail themselves of a failure of consideration. That if, in the negotiation with the defendants, the plaintiff made false and fraudulent representations, which were inducements on which defendants acted in their purchase of this patent, either in regard to the date of the patent, or otherwise, they would find for the defendants. But if they were of opinion that there was no fraud nor misrepresentation, they would find for the plaintiff the amount of the single bill, deducting the value of two years’ purchase of the patent. The verdict was for the plaintiff, allowing this deduction.
    “ The jury was also instructed that the plaintiff was not required to produce nor prove the assignment to him by the patentee, Farnam, of his interest in the patent, when no doubt had been suggested by the evidence of his right to vend the patent in South Carolina, as recited in his deed to the defendants. It did not appear to the presiding Judge that, from the character of the defence, the onus of proving his title was on the plaintiff.”
    The defendants appealed and now moved for a new trial on the grounds:
    1. Because the note was given for the exclusive right to sell Farnam’s Patent Pump in Abbeville District, and there was no proof that Miller, the plaintiff, had the right of Farnam, the patentee.
    2. Because his Honor charged the jury that the mere statement, by Miller himself that he was the assignee of Farnam, in the conveyance, of the right to sell the Pump in Abbeville, was sufficient to connect Miller with Farnam, unless the contrary was shown by the defendants.
    3. -Because the patent was to Farnam, and Miller undertook to sell and convey the patent right without connecting himself with Farnam in any way, except by his own statement that he was Farnam’s assignee.
    4. Because his Honor charged that the mere claim of Miller to be the assignee of Farnam was sufficient evidence of the fact to put the defendants under the necessity of proving a negative, viz.: that he was not such assignee.
    5. Because Miller falsely represented the qualities of the Pump; the price of the Pump; the time the patent had to run, and his right to sell it.
    6. Because the Pump was a humbug — entirely useless for the purposes of a well-pump, and was falsely misrepresented by Miller in such a manner as to avoid the contract entirely.
    7. Because the verdict was contrary to the law and evidence of the case.
    
      MoGrowen, for appellants.
    
      Thomson, contra.
   Curia, per

O’Neall, J.

In this case the Court perceives no reason-to be dissatisfied with the verdict.

It is perhaps proper to explain the first sentence of the presiding Judge’s instructions to the jury.

It is plain from the result of the case, by which the defendants obtained the benefit of a deduction of two years’ value from the purchase of the patent, that he did not rule or hold that an abatement might not be made without a surrender of the patent, or an offer to surrender it, but that a surrender or an offer to surrender was necessary (when it was not wholly worthless) to rescind the contract.

When a party buys a patent as well as any other species of property, and gives his note for the purchase money, he is bound to shew a failure of consideration before he can claim re-, lief. As, where the failure arises from want of title to a patent, he is bound to shew that, by either shewing a defect in the patent itself, or that the assignment in some way cannot have effect.

The case from 4 Blackf. 183, cited for the defendants, shews this, for there the defendant pleaded and set out the defect in the assignment. To that plea the plaintiff demurred, thus admitting the fact, and the Court held that the defence was good.

Here the alleged defect was not made to appear and hence, the defendants could have no benefit from it.

Whether the pump was capable of performing as the plaintiff represented — whether it was wholly worthless, and “ a humbug,” as the defendants alleged, were questions for the jury, and were properly submitted to them by the Court.

They have found against the defendants on these questions, and we cannot discover any error in their conclusion.

The motion is dismissed.

Wardlaw, Withers, Whitner, Glover, and Munro, JJ., concurred.

Motion dismissed.  