Opinion of the Court. of dower. It is true that the decision was put upon the ground that the right of dower was saved by the proviso, inserted in the second section of that act, that "nothing in this act contained shall be construed to annul, destroy, or impair any lawful rights of married women, which may be vested by the laws of the States respectively, and which are not inconsistent with the provisions of the second and fifth sections of this act ;" and that the judge delivering the opinion said that, were it not for that proviso, he should have no difficulty in holding that a sale in pursuance of a decree in bankruptcy would, like a sheriff's sale by virtue of either a judgment or a mortgage, bar dower. But the decision is significant as evidence that by the law of Pennsylvania a right of dower is "a lawful right, valid by the law of the State," and as treating the question whether it was divested by proceedings in bankruptcy as depending upon the true construction of the Bankrupt Act. Upon this question of construction, we are not bound by the opinion of the State court, and have no hesitation in disapproving the dictum, and in holding that the proviso relied on was not in the nature of an exception to or restriction upon the operative words of the act, but was a mere declaration, inserted for greater caution, of the construction which the act must have received without any such proviso, and that the omission of the proviso in the recent Bankrupt Act does not enlarge the effect of the assignment or of the sale in bankruptcy, so as to include lawful rights which belong not to the bankrupt but to his wife. The result is, that, so far as this case depends upon the construction of the Bankrupt Act of the United States, this court is of opinion that there is nothing in that act, or in the proceedings under it, to bar the wife's right of dower in lands of which her husband was seized during the coverture; and that, so far as it depends upon the law of Pennsylvania, the decision of the Supreme Court of that State in this case, reported in 87 Penn. State, 513, is in accord with all the previous adjudications of that court, and is strong, if not conclusive, evidence against the plaintiff' in error. It may be added that this decision is in conformity with one made twelve years ago by Judge Cadwalader in the District Argument for the Appellant. Court of the United States for the Eastern District of Pennsylvania. In re Angier, 10 Amer. Law Reg. (N. S.) 190; S. C. 4 Bankr. Reg. 619. Judgment affirmed. LAVER v. DENNETT & Another. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. Argued October 9th, 1883.-Decided October 29th, 1883. Assignment License-Mistake-Patent. After many conversations, and after a draft agreement had been made, A, in 1870, in writing, granted to B a license to make, use, and sell, and vend to others to sell, an invention in defined districts. In 1873 B discovered that the agreement gave him no exclusive rights, which it was the purpose of both parties to have done. He notified A, and A at once offered to grant such right for the original consideration. In November, 1873, B refused to accept a new agreement, and took steps to terminate the existing one. A thereupon sued B for royalties claimed to be earned under it. B filed a bill in equity, claiming that there was a mistake in the agreement, and praying to have it cancelled and A restrained from prosecuting an action under it: Held, That there was no mistake between the parties as to the agreement made; that the minds of the parties met, and an agreement was made, although the legal effect of it was different from what was intended; that A was not in default; and there was no ground for the relief prayed for. Suit in equity to have an agreement respecting the transfer of an interest under a patent set aside and cancelled, as made under a mistake, and all suits at law thereon stayed and enjoined. The facts are stated in the opinion of the court. Mr. John F. Storft for the appellant. 1. The contract failed to express the intent of the parties. Where a mistake occurs as to the subject matter of the contract, there is no assent, and of course no contract. 1 Story on Contracts, sec. 538; 2 Chitty on Contracts (Am. ed.), 1089-90. Where there is a mutual mistake as to a fact forming the basis Opinion of the Court. of a contract, the contract will be void, although no fraud be practised. 1 Story on Contracts, sec. 539, and cases cited; 1 Parsons on Contracts,.*p. 475. The mistake here is one of fact rather than of law. 1 Story Eq. Juri., secs. 152, 153, 164 f. Where the instrument, through the fault of the scrivener or otherwise, fails to state, the full terms of the agreement or understanding of the parties, the mistake is one of fact, which equity will relieve against. Hunt v. Rousmanier, 1 Peters, 1, 12; Hartford v. Salisbury Ore Co., 41 Conn. 113, 133; Briosa v. Pacific M. Ins. Co., 4 Daly, 246; 1 Adams Equity (Am. notes), p. 169. In this case the fault of the scrivener must be imputed to the appellees who employed him. mistake one of law, equity would afford relief. mannier, 8 Wheat. at p. 211; Wheeler v. Smith, 9 How. 55, 81; Whelen's Appeal, 70 Penn. St. 410; Hearst v. Pryol, 44 Cal. 230, 235; 1 Story Eq. Juri., secs. 119 et seq., 130, 134, 138. We find no case which we think precisely in point, and are unwilling, where the effect of the instrument is acknowledged to have been entirely misunderstood by both parties, to say that a court of equity is incapable of affording relief. J. Marshall in Hunt v. Rousmanier, 8 Wheat. at p. 216. Mr. R. E. Houghton for the appellees. But were the Hunt v. Rous Ch. MR. JUSTICE MATTHEWS delivered the opinion of the court. This appeal is from a decree dismissing the complainant's bill, and the record discloses the following as the facts material to the determination of the controversy. The appellees, in 1870, being British subjects, were owners of letters patent of the United States, bearing date January 4th, 1870, granted to one Dennett, for the term of seventeen years from August 13th, 1863, for an improvement in the construction of concrete arches for building. On November 2d, 1870, they entered into a written contract with the appellant, an architect, then residing in Albany, N. Y., but at the time of filing this bill a citizen of California. By this contract the appellees granted to the appellant, his executors, administrators, and assigns, during the residue of the unexpired term of the letters Opinion of the Court. patent, "full and free liberty, license, and authority to make, use, and sell, or vend to others to be sold, the said invention within the divisions of the United States, as thereinafter specified, or one or more of them, in the manner and according to the provisions and agreements thereinafter contained and upon the payment of the sums of money as therein provided, and not otherwise." For the puposes of the license the territory of the United States was divided into four districts, named A, B, C, and D respectively, and a royalty of ten shillings sterling per square of one hundred square feet was to be paid for all work actually done under the patent, and which, from certain specified dates, it was agreed should amount to an annual minimum sum of £500, and not to be payable in excess of an annual maximum sum of £1,000 in each of such divisions. It was also stipulated that the appellant might surrender the license at any time upon giving six months' notice, and that the appellees might revoke it upon any default of the appellant after thirty days' notice. It appears that this contract was entered into after many conversation between the parties, and after a draft agreement had been prepared and submitted to the appellant for examination. Upon his suggestion it was amended and finally executed. Various unsuccessful efforts appear to have been made by the appellant while at Albany, and after his removal to San Francisco, and also by one Fuller, who acted as his agent at Albany, to introduce the patent; and some correspondence took place between the parties in regard to its progress and prospects.. This correspondence, as well as the negotiations which led to the execution of the contract, was conducted on the part of the appellees by Frederick Ingle; and it was to him that the following letter was addressed by the appellant: "FREDERICK INGLE, Esq., "SAN FRANCISCO, 26th April, 1873. "5 Whitehall, London, England. "DEAR SIR: It now turns out, just as Mr. Fuller and myself Opinion of the Court. are about to close negotiations for the sale of your patent right, that I have no power to sell. Will you, therefore, send me the proper papers from your firm, stating that you will not grant licenses to any one else in the United States? I enclose you an eminent legal opinion thereon. Mr. Fuller had arranged for the sale of Massachusetts, which includes Boston; but we wait for your proper authority, which must be exclusive, or no value can be attached to the license I hold, Of course I am aware of the understanding which I have stated your firm would not go back on, but then the parties purchasing hold that it is not exclusive. In like manner I am unable to close with parties here for section D. I have had so much trouble with this matter, and now that it appeared to be in a good way to be productive of profit this annoyance arose. You can, however, remedy it in the way prescribed. Yours very truly, "AUGUSTUS LAVER." "P. S.-Send the papers to Mr. Fuller, at Albany, and then he will send me duplicates. "A. L." This letter seems to have been received by Ingle, and in reply he sent by cable the following: "FULLER, Architect, Albany, New York: "May 6, 1873. "Dennett will alter agreement, giving Laver exclusive right. "ROBERT DENNETT & Co." Fuller had evidently written a letter to Ingle, to the same effect, about the same time, for, although it is not contained in the record, Ingle's reply to it, written the day he sent the cable message, was produced and read in evidence. In this letter, dated May 5th, 1873, he says, referring to the objection to the terms of the license, "there is no objection on our part to alter it in any way to suit the requirements of the case." He adds: "You will bear in mind that this lease was granted to Mr. Laver to pay as an annual royalty. If it had been proposed then to purchase out and out, I dare say the terms to the exclusive right would have been more precise; at any rate, our intention was for Mr. Laver to have the exclusive right (in all our negotia |