
    Horace May, Survivor, etc., Respondent, v. Clark D. Page, Appellant.
    (Argued February 16, 1875;
    decided February 23, 1875.)
    This action was brought to compel the assignment to plaintiff of two patents issued to the defendant for improvements in lime kilns.'
    Defendant, on the 10th day of April, 1868, executed an instrument to Silas Boardman and others, plaintiff’s assignors, which recited that defendant had invented an improvement in lime kilns, for which he obtained a patent April 26th, 1864, and, for a consideration expressed, he granted to said Boardman and others the exclusive right to make, vend, etc., the improvement in certain specified territory, “with the renewals and all improvements I might make hereafter.”
    Prior to the grant or. assignment defendant had invented another improvement in lime kilns, for which he obtained a patent June 19, 1866. After the grant, he invented another improvement, for which he obtained a patent September 8th, 1868. Plaintiff claimed a right to an assignment or grant of these two patents for the specified territory. The referee decided that the plaintiff was not entitled to a grant of the patent of 1866, as it was invented prior to the instrument under which plaintiff claimed, but that he was entitled to a grant of the patent of 1868. IIeld. (GmswB, Oh. J., and Grover, J., dissenting), no error; that the word “ make ” in the covenant of defendant meant, not only the manual putting together of .an improvement, but also the mental devising of the mode thereof; that the covenant was, in effect, that all improvements to the improvement transferred, which at any time after the execution of the instrument defendant might devise and bring into existence by his own or the skilled hands of others, should, by the operation of the instrument, belong to the assignors of plaintiff (Herbert v. Adams, 4 Mason, 15 ; RatKbone v. Orr, 5 McLean, 131; Nesmith v. Calvert, 1W. ■& M., 34; Gayler v. Wilder, 10 How. [U. S.], 4'7'T); and that, therefore, the covenant did not include any improvement which defendant had before invented, but for which he did not obtain letters patent until afterward. Also, that the improvement invented and not patented did not pass as an incident to the right granted, as it was so distinct as to be the proper subject of a new patent.
    The opinion then discusses the attendant circumstances, and holds that there was nothing therein, or in any practical construction of the grant by the parties, charging defendant with the intent of assigning, or agreeing to assign, the devised and constructed, but not .yet patented, improvement.
    
      J. C. Cochrane for the appellant.
    
      W. F. Cogswell for the respondent.
   Folger, J.,

reads for reversal of order of General Term and affirmance of judgment entered on report of referee.

All concur; except Church, Ch. J., and Grover, J., dissenting.

Order reversed, and .judgment accordingly.  