Eureka Marble Co. et als. v. Windsor Manufacturing Co. et al.

party to the suit." Story Eq. Pl. § 153. "If a bond or judg ment be assigned, the assignor, as well as the assignee, must be a party." Mitf. Pl. 179. The averment in the bill," that said machine was bought for the use, and was to become the property, of said association," and that "said Lamson and the Windsor Manufacturing Company well understood that the covenants contained in said contracts were to inure to the benefit of the corporation thereafter to be organized," and that said machine was taken and put to use and paid for by the corporation, would, if true, make the corporation the owner of the machine, and, beneficially, the owner of the contracts, with the right, at law, to enforce the covenants therein of the defendants. The parties to such contracts, although the whole equitable ownership has become vested in the corporation, we think, may properly be joined as orators with the corporation.

all

The 2d, 3d, 4th, and 5th special causes of demurrer, are based upon the incongruity and impropriety of joining the two defendants The contract of December 9, 1867, purports to order a machine of the Windsor Manufacturing Company, of a specified kind and price, to be delivered at Windsor, by the 1st of April, 1868; $1000 to be paid on delivery, the residue by note on time. The company agree to "defend the patent-right, and save them harmless from loss," &c. The bill alleges that the machine was constructed, and ready for delivery on the day named in the contract; and on that day, April 1st, 1868, for further assurance, the owners of the quarry, except Bennett, took a further guaranty under seal, signed by Lamson and Windsor Manufacturing Company by E. G. Lamson, Pres't, reciting that " W. & J. G. Flint," (and seven others named) "have this day bought of E. G. Lamson, owner of stone channeling machine, one of said machines, built by the Windsor Manufacturing Company, in accordance with the contract made and signed December 9th, 1867; and the said E. G. Lamson has received $6000 in payment for said machine No. 6." The writing further recites, that Lamson, "on his part, in said sale, agrees that the parties shall have the right to run said machine, and in case of any litigation, *** said Lamson and the company agree to defend and save harmless," &c. And the

Eureka Marble Co. et als. v. Windsor Manufacturing Co. et al.

company agrees to furnish repairs, &c. The two contracts constitute a singular piece of mosaic, with some joint and some several covenants of each party; both executed on the part of the company, by E. G. Lamson, President. The bill avers that Lamson represented that he was the original inventor of the machine, and that the company of which he was agent and president, was manufacturing them for sale. It is not to be presumed that these contracts were purposely drawn in a manner so involved as to puzzle any pleader in adapting process to their enforcement; but rather that Lamson, being owner of the patent, and being president and principal in ownership and management of the company, acted, generally, for and in behalf of the company in selling its machines, and that he sold this machine for the company; and in the last contract, he added his personal guaranty that he would defend the patent. The stipulation in the last contract, by Lamson, that such purchasers" should have the right to run the same machine," is in the same sentence with the principal guaranty where both Lamson and the company are guarantors, and is merely a repetition of what is always implied by the sale. There is ever an implied warranty of title in a sale. And a title implies a right to use. The principal may maintain an action in his own name, often, on a contract made in the name of the agent, and may become responsible for contracts of an agent made in his own name. The stipulations of Lamson and the company, are so intertwined, and overlaid each other, that the orator might, with plausibility, sustain equity jurisdiction, on the ground of avoiding multiplicity of suits. But there are many cases where defendants have not a co-extensive common interest or relation, and are properly joined as defendants. "It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it will be sufficient if each party has an interest in some matters in the suit, and they are connected with the others." Story Eq.

Pl. § 271 a.

The third cause of demurrer, that there has been no cost or damages awarded for infringement of the patent, and hence no

Eureka Marble Co. et als. v. Windsor Manufacturing Co. et al.

breach of the contract to defend such suits and indemnify the parties against loss, is no sufficient ground of demurrer to the whole bill. If the joint relief sought in the special prayer cannot be awarded in the form asked, if the orators are entitled to relief upon the grounds alleged, the general prayer is sufficient to enable the court to award relief adapted to the case; for that has been held by the greatest chancellors to be a most "effectual prayer," when the case established a right to relief. The bill alleges that this Lamson machine has been adjudged an infringement of another's right to the patent, by the circuit court of the United States; asks that the defendants account for all gains; and that an injunction issue, &c. It is also alleged that the same party has procured an injunction against the orator corporation, based on the same allegations as against these defendants. But no damages have been assessed or paid. And non constat that the orators will not be protected from all loss or damages by reason of any infringement of the patent; or that the defendants may not, ultimately, vindicate their right to the patent. The orators saw fit in the purchase of the machine, to take covenants of indemnity "to defend the patent-right and save them harmless from loss, in case any damages are awarded by any legal courts for infringe ments on other patents, and legal costs; and step in and defend the suits." There is no allegation that these covenants have been broken. We think the last contract is not a substitute for the other, but rather in addition to it, and that Lamson, being the owner of the patent, joined in the sale; and in the contract of the first of April, he named himself as the vendor, and personally covenanted as to title, as the company, impliedly, had done in the contract of the 9th December, and that both defendants should be held as guarantors of title.

The decree of the court of chaucery is reversed, and cause remanded, with directions to refer the same to a master to take and state the account of all necessary damage to the orators, by reason of the loss of the use of said machine during the time its use was suspended at the request of the defendants, or in obedience to said writ of injunction; and make decree for the orators for the

Jamaica v. Wardsboro and Townshend.

same. The defendants have leave to withdraw the demurrer and replead, by paying costs, and taking none during the pendency of the demurrer.

THE TOWN OF JAMAICA v. THE TOWNS OF WARDSBORO AND TOWNSHEND.

[S. C. 45 Vt. 416.]

Highways. Proceedings under § 65, Ch. 24, of the Gen. Sts.

In a petition under § 65, ch. 24, of the Gen. Sts., the commissioners found that the road in question was about three miles long, difficult and expensive to maintain, and much out of repair; that from 1868 to the time of hearing in 1872, the plaintiff town had expended thereon only the amount of highway tax required by law, except in 1869, when it expended $500 in addition, and 1871, when it expended $80 in addition; that four other roads in the plaintiff town, led into said road, and were but little travelled, except by those living thereon, who used the road in question in going to the defendant towns and places beyond, and to whom said road was the most feasible, and to most of them the only route to the places named; that upon the road in question, four families lived, to whom the road was a necessity; that one of the defendant towns was benefited by the road in question, and that the plaintiff would be excessively burdened by being required to put and maintain said road in repair; and apportioned to such defendant a certain per cent. of the expense of repairing the same. Held, that the county court had lawful authority on such report, to assess such defendant according to the report.

The statute has made no provision for the appointment of a commissioner to expend such assessment.

THIS was a petition under § 65, ch. 24, of the Gen. Sts., to compel the defendant towns to contribute to the expense of putting a certain highway in the plaintiff town, laid out by the county court, in repair. The commissioners made the following report:

"We find that the highway in question was laid out and estab lished as set forth in said petition, and is wholly in the town of Jamaica, and is about three miles in length. It crosses West River, over which there has been maintained and now is, a covered bridge 229 feet in length, and from thence follows up a stream called Mill Brook, to the north line of Wardsboro, which is not far from the village of North Wardsboro. It is a some

Jamaica v. Wardsboro and Townshend.

what difficult and expensive road to keep in repair, and is now much out of repair. The bridge needs to be shingled. It will require quite a large sum of money to put said road and bridge in good repair, so as to reasonably well accommodate the travel over the same. This road is on the line of a stage and mail route extending from Bellows Falls to Arlington. There is considerable travel and freighting over it. Quite a large portion of the travel and freighting is to and from the town of Wardsboro. There are but few families living on the line of this road in Jamaica, and but a small portion of the travel is by the inhabitants of Jamaica. We find that said road and bridge benefit said town of Wardsboro, and that the town of Jamaica would be excessively burdened by being required to put and maintain the same in good and sufficient repair wholly at their own expense; we therefore apportion to said town of Wardsboro, to be paid by said town. forty per cent. of the expenses of putting and keeping in repair said highway and bridge. This highway and bridge are some benefit to the town of Townshend, and there is some travel over it by the people of Townshend, but not to an extent, in our opinion, to justify an apportionment of any part of the expense of putting and keeping the same in repair to said town.

"At the request of counsel, we report the following additional facts. The town of Jamaica, in 1872, up to the time of the hearing, had expended nothing on this highway and bridge, save the ordinary highway tax raised as required by law. In 1871, it expended in addition to the amount of highway tax as required by law, about eighty dollars. In 1870, the town expended something more than the ordinary highway tax, but not much. In 1869, the town expended, including the ordinary highway tax, about five hundred dollars on the road and bridge. In 1868, nothing more was expended than the ordinary highway tax. There are in the town of Jamaica four roads leading into the road in question. The first is the new road' so called, and connects with the road in question at a point near said bridge across West River, and passes up towards Jamaica village on the south side of the river, and connects with another road leading from Jamaica village to Townshend on the north side of the river, at a point near another bridge across the river. The road with which the new road' connects at the last named point, is the old road from Jamaica village to Townshend, and is the route for travel that has long been and now is used between the two towns. The 'new road' was made by Jamaica in 1869, in consequence of the last named bridge having been washed away by the freshet, and was made to accommodate the travel that was accustomed to go