delivered the opinion of the Court.
We are first called upon to give a construction to the written contract. The defendants conveyed “four clapboard machines and two shingle machines and all their apparatus thereunto belonging, water wheel and drums in Messrs. Dwight and John Stone’s buildings in Livermore, on Androscoggin river, and likewise the patent right for Livermore and Jay, all that is east of the Androscoggin river, and the town of Dixfield.”
By this instrument we think it is manifest that the defendants undertook and intended to convey, and the plaintiffs supposed they purchased, not only the clapboard and shingle machines in Stone’s building, and the right to use them, of which the defendants professed to have a patent; but also the exclusive right to use similar *12machines within the territory described in said contract. The words “ patent right” must refer to some invention or improvement of which the venders were, or professed to be, the proprietors, and we perceive nothing in the contract to which such invention or improvement could be applicable, except clapboard and shingle machines.
The obvious, meaning is the right, secured by patent, to construct, use, and vend to others to be used, machines of the description specified, within the towns of Livermore, &c. The argument of the defendants’ counsel, that the machines were to be used in conjunction, in the same mill, applies, perhaps, with some force to- the machines actually sold, but it is not perceived that it can affect the right to construct and use other similar machines in other situations. That the sale and purchase of such a right was contemplated by the parties, is manifest from the language of the contract. It cannot be presumed that the machines in Sto?ie’s mill were to be removed to Jay or Dixfield, and that the right,, mentioned in the written contract,, extended no further than to use diese particular machines.
The next question is as to the rule of damages. The counsel for the defendants contend that the jury should have found how much the plaintiffs would have been benefitted in case diere had been a patent right for the clapboard machine, more than they were -by the purchase of said machine without a patent, and diat this sum ought to be the measure of damages. The error here is in considering the term “ patent right” as applying exclusively to the particular machines sold, and not giving it diat enlarged construction to which it is fairly entitied, and which the parties undoubtedly intended, viz. the right to construct and use similar machines within the territory described.
When a patentee makes sale of a machine, for use, constructed according to his patent, we are not aware diat it is usual for him formally to convey die right to use such machine. The sale would perhaps bé considered as carrying with it the right to use the particular article sold, without any formal stipulation to that effect; the right to use being incident to the machine.
The defendants conveyed to the plaintiffs four clapboard machines *13and two shingle machines; that conveyance has not been repudiated by the plaintiffs; they still hold the property, and, for aught that appears in the case, are content with the execution of the contract thus far. In the same instrument, the defendants pretend to convoy the patent right exclusively to make, use, and vend to others to use certain machines, the exclusive right to make and use which is not in the defendants.
It is manifest, therefore, that nothing passed by the conveyance, and that in such cases the rule of damages is the consideration paid.
But the defendants contend that, to entitle the plaintiffs to that rule of damages, they ought to have returned the machines which they received of the defendants instead of retaining them as they did. Such unquestionably would be the law if this action were founded upon a breach of the contract in relation to the machines. The case of Conner v. Henderson, and the other authorities cited in defence, would be applicable to such a case. — But in the case before us, nothing passed, and of course the plaintiffs have nothing to return. They contracted with the defendants for the exclusive legal right to make, use, and vend certain machines ; — they paid a fair consideration for that right ; and the jury have found that the defendants had no such exclusive right, and of course, could convey none. We are clearly of opinion that the jury were properly instructed, and that there must be judgment on the verdict.