Trott, Cowp. 371; Marshall v. Broadhurst, 1 Tyrw. 348; S. C. 1 Cromp. & J. 403; Siboni v. Kirkman, 1 Mees. & W. 418; S. C. Tyrw. & G. 777; Wentworth v. Cock, 10 Ad. & El. 42; S. C. 37 Eng. C. L. 33; Wms. Exrs. 1227; Walker v. Hull, 1 Lev. 177; Hyde v. Skinner, 2 P. Wms. 196; Werner v. Humphreys, 3 Scott, N. R. 226; Berisford v. Woodroff, Cro. Jac. 404; S. C. 1 Rolle, Rep. 433; Petrie v. Voorhees, 18 N. J. Eq. 285; Woods v. Ridley, 27 Miss. 119; Pringle v. McPherson, 2 Desaus. Eq. 524; White v. Commonwealth, 39 Pa. 167; Dickinson v. Calahan, 19 Pa. 227; Robson v. Drummond, 2 Barn. & Ad. 303; British Wagon Co. v. Lea, L. R. 5 Q. B. Div. 149; Sears v. Conover, 3 Keyes, 113; Tyler v. Barrows, 6 Robt. 104; Horner v. Wood, 23 N. Y. 350; Taylor v. Palmer, 31 Cal. 240; Parsons v. Woodward, 22 N. J. L. 196; Philadelphia v. Lockhardt, 73 Pa. 211; Lafferty v. Rutherford, 5 Ark. 649; St. Louis v. Clemens, 42 Mo. 69; Groot v. Story, 41 Vt. 533.

(No counsel appeared for defendant in error.)

Mr. Justice Gray delivered the opinion of the court:

If the assignment to the plaintiff of the contract sued on was valid, the plaintiff is the real party in interest, and as such entitled, under the practice in Colorado, to maintain this action in its own name. Rev. Stat. § 914; Colorado Code Civ. Pro. § 3; Albany & Rensselaer Iron & Steel Co. v. Lundberg, 121 U. S. 451 [30: 982]. The vital question in the case, therefore, is whether the contract between the defendant and Billing and Eilers was assignable by the latter, under the circumstances stated in the complaint.

At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable. But everyone has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman, "You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract." Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305; Boston Ice Co. v. Potter, 123 Mass. 28; King v. Batterson, 13 R. I. 117, 120; Lansden v. McCarthy, 45 Mo. 106. The rule upon this subject, as applicable to the case at bar, is well expressed in a recent English treatise. Rights arising out of contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided." Pollock, Cont. 4th ed. 425.

The contract here sued on was one by which the defendant agreed to deliver ten thousand tons of lead ore from its mines to Billing and Eilers at their smelting works. The ore was to be delivered at the rate of fifty tons a day and it was expressly agreed that it should be

come the property of Billing and Eilers as soon as delivered. The price was not fixed by the contract, or payable upon the delivery of the ore. But, as often as a hundred tons of ore had been delivered, the ore was to be assayed by the parties or one of them, and, if they could not agree, by an umpire; and it was only after all this had been done, and according to the result of the assay, and the proportions of lead, silver, silica and iron, thereby proved to be in the ore, that the price was to be ascer tained and paid. During the time that must elapse between the delivery of the ore, and the ascertainment and payment of the price, the defendant had no security for its payment, except in the character and solvency of Billing and Eilers. The defendant, therefore, could not be compelled to accept the liability of any other person or corporation as a substitute for the liability of those with whom it had contracted.

The fact that upon the dissolution of the firm of Billing and Eilers, and the transfer by Eilers to Billing of this contract, together with the smelting works and business of the partnership, the defendant continued to deliver ore to Billing according to the contract, did not oblige the defendant to deliver ore to a stranger, to whom Billing had undertaken, without the defendant's consent, to assign the contract. The change in a partnership by the coming in or the withdrawal of a partner might perhaps be held to be within the contemplation of the parties originally contracting; but, however that may be, an assent to such a change in the [389] one party cannot estop the other to deny the validity of a subsequent assignment of the whole contract to a stranger. The technical rule of law, recognized in Murray v. Harway, 56 N. Y. 337, cited for the plaintiff, by which a lessee's express covenant not to assign has been held to be wholly determined by one assignment with the lessor's consent, has no application to this case.

The cause of action set forth in the complaint is not for any failure to deliver ore to Billing, before his assignment to the plaintiff (which might perhaps be an assignable chose in action), but it is for a refusal to deliver ore to the plaintiff since this assignment. Performance and readiness to perform by the plaintiff and its assignors, during the periods for which they respectively held the contract, is all that is alleged; there is no allegation that Billing is ready to pay for any ore delivered to the plaintiff. In short, the plaintiff undertakes to step into the shoes of Billing, and to substitute its liability for his. The defendant had a perfect right to decline to assent to this, and to refuse to recognize a party, with whom it had never contracted, as entitled to demand further deliveries of ore.

The cases cited in the careful brief of the plaintiff's counsel, as tending to support this action, are distinguishable from the case at bar, and the principal ones may be classified as follows:

First. Cases of agreements to sell and deliver goods for a fixed price, payable in cash on delivery, in which the owner would receive the price at the time of parting with his property, nothing further would remain to be done by the purchaser, and the rights of the seller could

It was the duty of the conductor of defendant to accept and act upon the statement of plaintiff in regard to his ticket, unless he had ascertained that his statement was untrue.

The plaintiff thereupon boarded the train of the Hot Springs Railroad at Hot Springs, and was carried thereby to Malvern, where, on the same day, he boarded a regular passenger train of the defendant for St. Louis, and, upon the conductor thereof demanding his fare, presented his ticket, informed him of his presentation of it at the office at Hot Springs, of his offer there to identify himself, and of the absence of the agent, as aforesaid, and offered to sign his name and otherwise identify himself to the conductor, and demanded to be carried to St. Louis by virtue of said ticket; but the conductor refused, and put him off the train, and left him at a way station, where he was obliged to remain without fire or other protection against the cold until he took the midnight.train of the defendant for St. Louis, first paying fare; "by reason of each and all of which wrongful and unlawful acts aforesaid of defendant, its agents and employees, the plaintiff says he has been damaged in the sum of ten thousand dollars, for which he asks judgment."

The circuit court sustained a demurrer to this petition, and gave judgment for the defendant. Its opinion, delivered upon sustaining this demurrer, and sent up with the record, is reported in 23 Fed. Rep. 326; and its opinion at a former stage of the case, in 5 McCrary, 462, and in 17 Fed. Rep. 880.

Mr. Clinton Rowell, for plaintiff in error: Under the terms of the ticket plaintiff was not guilty of any negligence in failing to get it stamped, and he was entitled to be transported on it.

Gregory v. Burlington & M. R. R. R. Co. 10 Neb. 250; Murdock v. Boston & A. R. R. Co. 137 Mass. 293; Moore v. Fitchburg R. R. Corp. 4 Gray, 465; Maroney v. Old Colony & N. R. Co. 106 Mass. 153; Lake Shore & M. S. R. Co. v. Greenwood, 79 Pa. 373; Pennsylvania R. R. Co. v. Spicker, 105 Pa. 142; Young v. Pennsylvania R. R. Co. 5 Cent. Rep. 848, 115 Pa. 112; Hufford v. Grand Rapids & I. R. R. Co. 7 West. Rep. 859; Burnham v. Grand Trunk R. Co. 63 Me. 298; Tarbell v. Northern Cent. R. Co. 24 Hun, 51; Hamilton v. Third Ave. R. R. Co, 53 N. Y. 25; Ilicks v. Hannibal & St. J. R. R. Co. 68 Mo. 329; Yorton v. Milwaukee, L. S. & W. R. Co. 62 Wis. 367; Palmer v. Charlotte, C. & A. R. Co. 3 S. C. 580; Illinois Cent. R. R. Co. v. Johnson, 67 Ill. 312; Chicago & A. R. R. Co. v. Flagg, 43 Ill. 364; Evans v. Memphis & C. R. R. Co. 56 Ala. 246; Lake Erie & W. R. Co. v. Fix, 88 Ind. 381; St. Louis & S. E. R. Co.

Hufford v. Grand Rapids & I. R. R. Co. 7 West. Rep. 859; Burnham v. Grand Trunk R. Co. 63 Me. 298; Young v. Pennsylvania R. R. Co. 5 Cent. Rep. 848, 115 Pa. 112.

Mr. John F. Dillon and Winslow S. Pierce, Jr., for defendant in error:

As between the conductor and passenger and the rights of the latter to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as the evidence of his right to the seat he claims.

Frederick v. Marquette, H. & O. R. R. Co. 37 Mich. 342; Lake Shore & M. S. R. Co. v. Pierce, 47 Mich. 277; Swan v. Manchester & L. R. R. Co. 132 Mass. 116; S. C. 6 Am. & Eng. R. R. Cas. 332; Sherman v. Chicago & N. W. R. Co. 40 Iowa, 45; Dietrich v. Pennsylvania R. R. Co. 71 Pa. 432.

Mr. Justice Gray, after stating the case, delivered the opinion of the court:

The right of this plaintiff to be carried upon the defendant's train, without paying additional fare, does not depend upon his having been received as an ordinary passenger, or upon any representations made by a ticket seller, conductor or other officer of the Company as to his right to use a ticket, but wholly upon the construction and effect of the written contract, signed by him, upon the face of the ticket (of the kind called "tourist's" or "round-trip" tickets) sold him by the defendant for a passage to Hot Springs and back, by which, in consideration of a reduced rate of fare, he agreed to the following terms:

By the fifth condition, the ticket "is not good for return passage unless the holder identifies himself as the original purchaser to the satisfaction of the authorized agent of the Hot Springs Railroad, at Hot Springs, Ark., within eightyfive days from date of sale, and when officially signed and dated in ink and duly stamped by said agent this ticket shall then be good only five days from such date."

The clear meaning of this condition is that the ticket shall not be good for a return passage at all, unless, within eighty-five days from its original date, the holder not only identifies himself as the original purchaser to the satisfaction of the agent named, but that agent sigus, dates and stamps the ticket; and that, upon such identification and stamping, the ticket shall be good for five days from the new date.

The sixth condition, by which the ticket is to be void if the plaintiff does not sign his name and otherwise identify himself, whenever called upon so to do by any conductor or agent of either of the lines over which he may pass, is evidently intended as an additional precaution against the transfer of the ticket either in going or in returning, and not as an alternative or substitute for the previous condition to the va lidity of the ticket for a return trip.

The twelfth condition states that the plaintiff understands and expressly agrees that no agent or employee of any of the lines has any power

other evidence, facts alleged to have taken place before the beginning of the return trip, and as to which the contract on the face of the ticket made the stamp of the agent of the Hot Springs Railroad Company at Hot Springs the only and conclusive proof.

If this defendant had been the party responsible for not having an agent at Hot Springs, the question thus presented would have been of some difficulty, although we are not prepared to hold that, even under such circumstances, the plaintiff's remedy would not be limited to an action for the breach of the implied contract to have an agent here, and to the expense which he thereby incurred. But this case does not require the expression of any opinion upon that question.

By the first condition of the contract contained in the plaintiff's ticket, the defendant is not responsible beyond its own line. Consequently it was not responsible to the plaintiff for failing to have an agent at the further end of the Hot Springs Railroad. The agent who was to identify the passenger and stamp his ticket there was the agent of the Hot Springs Railroad Company, and is so described in the ticket, as well as in the petition. If there was any duty to have an agent at Hot Springs, it was the duty of that company, and not of the defendant. The demurrer admits only the facts alleged, and does not admit the conclusion of law, inserted in the petition, that by reason of the facts previously set forth, and which do not support the conclusion, the defendant and its agent failed and refused, without just cause or excuse, to identify the plaintiff as the original purchaser of the ticket, or to sign, date and stamp it. Hitchcock v. Buchanan, 105 U. S. 416 [26:1078].

The omission to have an agent at Hot Springs not being a breach of contract or of duty on the part of this defendant, the case is relieved of all difficulty.

ST. PAUL PLOW WORKS, Plf. in Err.,

v.

WILLIAM STARLING.

(See S. C. Reporter's ed. 376-378.)

Jurisdiction as to patent case.

An action upon a contract by which the plaintiff licensed the defendant to make and sell a patented fringement of the patent are controverted, is a article, in which action the validity and the in"case touching patent rights," and therefore within the appellate jurisdiction of this court under section 699, Revised Statutes, without regard to the sum or value in dispute. [No. 1367.] Submitted May 4, 1888. Decided May 14, 1888.

States for the District of Minnesota, to review a judgment for the plaintiff, in an action for breach of an agreement in writing, by which the plaintiff granted to defendant the right to make and sell within a defined territory a certain kind of plow, under letters patent granted to plaintiff, and defendant agreed to make and sell the plows and pay plaintiff a royalty thereon.

ERROR to the Circuit Court of the United

On motion to dismiss for want of jurisdic tion. Denied.

See 29 Fed. Rep. 790; 32 Fed. Rep. 290.
The facts are stated in the opinion.

Messrs. Chas. S. Careins and D. S. Frackelton, for defendant in error, for the motion:

Defendant in error caused a transcript of record to be filed in this court and printed, for the purpose of making this motion to dismiss the writ, to prevent needless and oppressive delay. The court has held this proper prac

Clark v. Hancock, 94 U. S. 493 (24:146); Thomas v. Wooldridge, 90 U. S. 23 Wall. 283 (23:185).

Section 700, Rev. Stat. U. S. is the only Act providing for the review here of a civil cause where an issue of fact has been tried in the circuit court otherwise than by a jury.

Boogher v. New York L. Ins. Co. 103 U. S. 90 (26:310); Kearney v. Case, 79 U. S. 12 Wall. 275 (20:395).

Unless the case at bar also comes under sec

Elgin v. Marshall, 106 U. S. 578 (27:249); Zeigler v. Hopkins, 117 U. S. 686 (29:1020).

An action on a contract to recover license fees, agreed to be paid for the use of a patent, is not a case touching patent rights, or arising under the patent or copyright laws of the United States.

Brown v. Shannon, 61 U. S. 20 How. 55 (15:826); Albright v. Teas, 106 U. S. 613 (27:295); Wilson v. Sandford, 51 U. S. 10 How. 99 (13:344); Hartell v. Tilghman, 99 U. S. 547 (25:357); Sizer v. Many, 57 U. S. 16 How. 98 (14:861); Burr v. Gregory, 2 Paine, 426; Blanchard v. Sprague, 1 Cliff. 288; Hill v. Whitcomb, 1 Holmes, 317; Goodyear v. Union India Rubber Co. 4 Blatchf. 63; Merserole v. Union Faper Collar Co. 6 Blatchf. 356; Goodyear v. Day, 1 Blatchf. 565; Brooks v. Stolley, 3 McLean, 523; Pulte v. Derby, 5 McLean, 328; Curt. Pat. § 496; Walk. Pat. § 388.

The writ of error cannot be sustained on the ground that the court went into the question of the validity of the patent.

Kinsman v. Parkhurst, 59 U. S. 18 How. 289 (15:385); White v. Lee, 14 Fed. Rep. 789; Rogers v. Riessner, 30 Fed. Rep. 525; Bartlett v. Holbrook, 1 Gray, 114; Marston v. Swett, 66 N. Y. 206; S. C. 82 N. Y. 526; Burr v. Duryee, 2 Fish. Pat. Cas. 285; Baltimore Car Wheel Co. v. North Baltimore Passenger R. Co. 21 Fed. Rep. 50; Walk. Pat. § 307.

Messrs. John B. & W. H. Sanborn, for plaintiff in error, in opposition:

The pleadings put in issue the validity of the patents and the novelty and utility of both. The court tried and decided all these issues. Under this state of facts, this case was one arising under the patent laws of the United States.

Brooks v. Stolley, 3 McLean, 523; Littlefield v. Perry, 88 U. S. 21 Wall. 205 (22:577); Bloomer v. Gilpin, 4 Fish. Pat. Cas. 54; Magic Ruffle Co. v. Elm City Co. 13 Blatchf. 157; Woodworth v. Weed, 1 Blatchf. 165; Wilson v. Sherman, Id. 538; Woodworth v. Cook, 2 Blatchf. 160; Pulte v. Derby, 5 McLean, 336; Day v. Hartshorn, 3 Fish. Pat. Cas. 32; Goodyear v. Congress Rubber Co. 3 Blatchf. 449; Blanchard v. Sprague, 1 Cliff. 288.

The plaintiff in error was not estopped to contest the validity of the patent.

Brown v. Lapham, 27 Fed. Rep. 77; Burr v. Duryee, 2 Fish. Pat. Cas. 275, 284; Moody v. Taber, 1 Ban. & Ard. Pat. Cas. 41-43; Bostock v. Goodrich, 25 Fed. Rep. 819; Bell v McCullough, 1 Fish. Pat. Cas. 380; Wood v. Wells, 6 Fish. Pat. Cas. 385.

Mr. Justice Gray delivered the opinion of the court:

The original action was brought in the Circuit Court of the United States for the District of Minnesota by a citizen of Nebraska against a corporation of Minnesota, for breach of an agreement in writing, dated December 17, 1877, by which the plaintiff granted to the defendant the right to make and sell within a defined territory a certain kind of plough, under letters patent granted August 18, 1874, to the plaintiff for an improvement in ploughs (of which he

and original inventor), and the defendant agreed to make such ploughs in a good and workinanlike manner, and to advertise and sell them at a price not exceeding the price of similar implements sold by other manufacturers, and to render accounts semi-annually and pay the plaintiff a royalty of $2.50 for each plough sold.

The defendant, in its answer, admitted the agreement sued on, but denied any breach; denied that the plaintiff was the original and first inventor of any improvement in ploughs, and averred that his alleged improvement had been described in six earlier patents specified; admitted that the defendant had made and sold ploughs according to the method described in letters patent granted March 9, 1880, to one Berthiaume, and averred that those ploughs were constructed upon an entirely different principle from the plaintiff's. The plaintiff filed a general replication, denying the allegations of the answer.

A jury trial having been duly waived in writing, the case was tried by the court, which, upon facts set forth in detail, found that the defendant had made 960 ploughs under the Berthiaume patent, and 350 other ploughs; that all those ploughs infringed the plaintiff's pat ent, and that the plaintiff's invention was not anticipated by either of the six other patents set up in the answer; and concluded that the plaintiff was entitled to a royalty of $2.50 on each plough sold by the defendant, amounting to $3,275; overruled a motion for a new trial and gave judgment for the plaintiff accordingly. 29 Fed. Rep. 790; 32 Fed. Rep. 290.

The defendant sued out this writ of error, which the original plaintiff now moves to dismiss for want of jurisdiction, because the judgment below was for less than $5,000.

The decision of this motion depends upon § 699 of the Revised Statutes, by which a writ of error or appeal may be allowed from any final judgment or decree of the circuit court, without regard to the sum or value in dispute, "in any case touching patent rights." This section substantially re-enacts the corresponding provision of the Patent Act of 1870, in which [378] the words were "in any action, suit, controversy or case, at law or in equity, touching patent rights.' Act July 8, 1870, chap. 230, 56, 16 Stat. at L. 207. The language applied to this subject in the Patent Act of 1836, under which the cases of Wilson v. Sandford, 51 U. S. 10 How 99 [13:344] and Brown v. Shannon, 61 U. S. 20 How. 55 [15:826] were decided, was that used in that Act in defining the jurisdiction of the circuit court in patent cases, namely, "actions, suits, controversies and cases, arising under any law of the United States, granting or confirming to inventors the exclu sive rights to their inventions or discoveries." Act July 4, 1836, chap. 357, § 17, 5 Stat. at L. 124. Similar words were used in the Patent Act of 1861 in defining the jurisdiction of this court. Act Feb. 18, 1861, chap. 37, 12 Stat. at L. 130. But in the Act of 1870, as in the Revised Statutes, Congress, while using similar language in defining the jurisdiction of the cir cuit court, substituted (it must be supposed, purposely) the new phrase, "touching patent rights," in defining the jurisdiction of this court.