Statement of the case. READ V. BOWMAN. 1. A declaration that a certain improvement, containing in reality one principal and three distinct minor improvements, was patented on a day named, is supported by evidence that four patents-reissues-were subsequently granted on an original patent of the date named; such original having, in its specification, described all and no more than the improvements specified in the four reissues. The reissues relate back. 2. Where the purchaser of a claim for a patent agrees that, as soon as the patent is issued, he will give his notes, payable at a future date, the fact that no patent has issued until after the day when the last note, if given, would have been payable, is no defence to assumpsit for not having given the notes; the patent having finally issued in form. READ & WHITAKER were inventors of four improvements in reaping and mowing machines, the principal one being what was called a "tubular finger-bar;" and in 1856 were in partnership, under the name of Lloyd, Whitaker & Co., with two persons named Lloyd & Bowman; these last-named persons using the improvements with them, though not in any way inventors. On 27th December, 1856, Read & Whitaker applied for a patent; their application giving authority to Mr. Hanna, of Washington, whom they appointed their solicitor, "to alter or modify the drawings, specifications, and claims thereunto attached, in such manner as circumstances might require, or to withdraw the application altogether should it be deemed advisable, and in that event to receive and receipt for such sums of money as should be returnable under the act of Congress in that case made and provided." Pending this application, and before any letters were granted, Read agreed to sell out his interest to Whitaker for $4500; of which $1500 was to be paid, and was paid in cash. The instrument of sale recited that, "Whereas Read & Whitaker have invented an improvement, for which they have applied for letters patent; and whereas, Whitaker has agreed to purchase of Read his interest in and to said invention, in consequence of letters patent, granted or to be granted; now, therefore, I, the said Read, in consideration, &c., hereby assign, &c., to Whitaker, the full and exclusive Statement of the case. right to said invention, as set forth and described in the specifications which I, in company with Whitaker, have prepared, executed, and filed with the Commissioner of Patents at Washington, preparatory to obtaining letters patent therefor. To have and to hold," &c. Then, in a separate paragraph, the assignment proceeds, for the same consideration ($4500), and the further consideration of one dollar, to assign to Whitaker Read's right, title, and interest in and to three claims to inventions made by Read & Whitaker, for which the specifi cations had not been fully made, describing them. The specifications above referred to contained a description of all the improvements in the case, which were plainly but parts of one invention. Contemporaneously with this assignment, Whitaker, as one party, and "Bowman & Lloyd" signing as another, executed an engagement to Read for $3000, the balance of the consideration of the transfer from Whitaker to him. The contract, in opening, recites, that Read had assigned to Whitaker all his title in certain inventions and improvements (both plural) made by Read & Whitaker, in improvement of grain-reapers and grass-mowers, &c. (for full particulars reference being made to said assignment), "for which the said Whitaker has agreed to pay the said Read as follows: $1500 on the 1st January, A. D. 1859, and $1500 on the 1st January, A. D. 1860, with interest." And the contract then thus concludes: "Now, therefore, we, the said J. Lloyd, F. H. Bowman, and J. T. Whitaker, do hereby agree, for a valuable consideration to us paid by the said Read (the receipt whereof we do hereby acknowledge), as soon as the patent for the improvement in the grainreaper and grass-mower aforesaid is obtained by the said Read and Whitaker, to execute unto the said Read our joint and several notes for the said amounts, payable as aforesaid, with interest as aforesaid." The dates when the notes were to come due must be observed. After this time Read retired from business; the Statement of the case. three other persons continuing it, and using all four improve ments. The "specifications" referred to in Read's assignment, as filed by him and Whitaker with the Commissioner of Patents, presented in reality four improvements. Mr. Hanna, their solicitor, withdrew three of the claims; and on the 11th of August, 1857, accepted a patent for one of them only, as specified in a specification amended by him; the patent embracing all the improvements in its specification, but the claim being restricted to the principal improvement, that of the "tubular finger-bar." On the 12th of February, 1859,— this date, too, must be noted,-" Bowman & Lloyd," who now ceased to use any of the improvements, notified to Read that, as more than a sufficient time had elapsed for procuring the patent for improvements, and as the same had not been procured, they (Bowman & Lloyd) considered themselves discharged, and the contract void, so far as they were concerned. About one year after this notice, that is to say, on the 7th February, 1860, Read did obtain four patentsreissues upon the patent of August 11, 1857, which reissued patents, it was admitted, did contain the said four improvements, being all the improvements in the matter. Read accordingly brought assumpsit against Whitaker, Bowman & Lloyd, for breach of contract in not executing their two notes for $1500 each; the declaration alleging that, subsequently to making the agreement, "to wit, on the 11th day of August, 1857, the said improvement was duly patented;" nothing being said about any surrender or about the reissues; and the one patent of August 11, 1857, being alone offered in proof. The question below was, whether this declaration was sustained by the evidence; and whether Lloyd & Bowman were discharged. The court held the declaration sufficient on the reissued patents being granted; that both Bowman & Lloyd were bound, just as Read was; that Bowman & Lloyd were chargeable with notice of Mr. Hanna's authority, and were bound by such changes and modifications as he made. Verdict was given for the amount of the notes with interest. Argument for the plaintiff in error. Judgment having gone accordingly, the defendants brought the case here on error. Goodwin, for the plaintiff in error: The contract about the notes shows plainly that Whitaker was the principal debtor. It is "the said Whitaker" who "has agreed to pay the said Read." Lloyd & Bowman do not contract to pay at all. Indeed there was no equity to raise an obligation for them to pay. Read's assignment was to "Whitaker," and to him alone. He alone got a permanent and beneficial interest. What Lloyd & Bowman do is this: they—after that Whitaker has promised to pay-agree that they with him will give their notes. Is it not plain that they did this as his sureties? Where a contract is to pay the debt of another, without any new consideration to the party so contracting, the obligation is to be construed as one of suretyship,* and, of course, to be construed strictly. The surety is bound in the manner and under the circumstances pointed out in his obligation. He may stand to its very terms, and if a variation is made without his assent, he is discharged. This obligation of the sureties was not absolute, but was contingent upon the condition precedent, that a patent for the specified improvements should first issue. If no patent ever issued, although Whitaker was still liable to Read for the sum agreed, Bowman & Lloyd could not be called upon for its payment. Then the issue being a condition precedent, such condition must have been performed within a reasonable time; prior, at least, to the time when the debt for which they thus contingently bound themselves matured: obtaining a patent subsequent to such time was not sufficient. But all the obligation of Whitaker became due on or before the 1st day of January, 1860; the reissued patents all bear date subsequently. From the date of the contract, therefore, to its maturity, the condition precedent to Bowman & Lloyd's liability remained unperformed. * Rees v. Barrington, 3 Leading Cases in Equity, by Hare & Wallace, 3d edit. 837. Argument for the plaintiff in error. Moreover, by the terms of the contract it was necessary that a patent should issue for all the improvements specified. In their mechanical nature, one may have been greater than another. In their legal magnitude, all stand on one base. The patent of 11th August, 1857, the only patent offered in evidence, being for only one of the four, was not a performance of the condition. Under the simple allegation of the issue of a patent on that day, it was not competent to prove the surrender of such patent, and the reissue of the four patents nearly three years afterwards. This evidence being excluded, there was nothing before the jury but the patent of August 11th, 1857, and the verdict should have been for the defendants. The true construction of the last clause of the contract is, to regard it as containing solely the contract of Bowman & Lloyd, in the same manner as if the earlier part had been signed by Whitaker, with the clause omitted; and then the clause indorsed upon the contract, or written beneath it, and signed by Bowman & Lloyd only. Any other view involves the absurdity of making Whitaker both absolutely and contingently liable for the same debt by the same instrument. The contract of the respective parties, though contained in the same writing, must in construction be so severed as to be consistent with itself; and any other construction than that for which we contend, either changes the absolute liability of Whitaker to pay, which is clearly fastened upon him by the previous part of the contract, into a contingent liability dependent upon a condition to be performed, or enlarges the obligation of Bowman & Lloyd, which is contained only in this final clause, from a conditional into an absolute liability, a construction which would make the instrument inconsistent and contradictory. Bowman & Lloyd are not chargeable with notice of the authority of Mr. Hanna. The contract refers to the specifications as containing the description of the inventions for which a patent was to be issued, and is only notice of what such inventions were, and not of the power of attorney. Even if notice of the appointment of Hanna as the attorney, and of |