The complaint is in the common form, for work and labor done, and for goods, wares and merchandise sold and delivered. The defense was the general issue, and special pleas setting up a contract between the parties, and containing averments of" non-performance by the plaintiff, a rescission by the defendants, also damages which the defendants claimed in recoupment. The case was tried by the court, without a jury, and verdict given for the plaintiff for the full amount claimed. The evidence is set out in the bil] of exceptions, and there is no material conflict. It appears that the plaintiff, the Excelsior Stove Pattern Co., was a manufacturer of stove patterns, and the defendants were manufacturers of stoves. The contract of the parties is in writing, evidenced by a letter of plaintiff June 2d, 1891, the reply of the defendants June 10th, 1891, and the reply of the plaintiff June 17th, 1891, which are set out in the statement of facts.
The proposition as contained in plaintiff’s first letter, to furnish the patterns for $755, was accepted, and the patterns were manufactured and forwarded to the defendants, and were received by them. It appeal’s from the evidence that the patterns furnished by the plaintiff had as a part, what is called a “kicker” a “device for opening the door of the stoves by the use of the foot.’ ’ After the patterns were received, and the defendants had expended several hundred dollars in their preparation to manufacture the stoves, they learned that the “kicker” was patented, and that the plaintiff had no authority to sell the right to use the “kicker” in the manufacture and sale of stoves, and that the * ‘kicker” added materially to the Yalue of stoves manufactured after this pattern. The decision of the case requires a construction of the *373contract, and an ascertainment of the rights and liabilities of the parties under the contract. No one can sell and convey a title to property unless he is the owner or the representative of the owner. That the vendor did not own the patent to the “kicker,” and did not represent the patentee in the sale of the patterns to the defendants, is not controverted. It is evident that the purchasers, by their purchase from plaintiffs, acquired no right to manufacture and vend stoves with the “kicker” attached. It is also clearly proven, that at the time of their purchase, the defendants had no notice that the right to manufacture and sell the “kicker” attachment was a patent franchise belonging to third parties, the right to vend which was not acquired by their purchase. This want of knowledge in no way could affect the title or right of the real owner of the patent. As against the real owner the purchaser of a patent purchased from any other person, or his agent, buys at his own risk.
As between the vendor-and vendee the general rules apply. This rule is stated in 2 Kent. Com., p. 478, as follows : “In every sale of a chattel, if the possession be at the time in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril. But if the seller has possession of the article, and he sells it as his own, and not as agent for another, and for a fair price, he is understood to warrant the title. A fair price implies a warranty of title ; and the purchaser may have a satisfaction from the seller, if he sells the goods as his own, and the title proves deficient.” — 2 Kent Com., p. 478. A patent franchise does not admit of tangible possession, which may be seen by a purchaser, but the principle of express or implied warranty cah be applied in sale of patents.
There is no doubt that the defense would be made out if the plaintiff had sold or agreed to sell the right to manufacture and sell the “kicker” which was a patented article, but the question is, whether the sale of the patterns, by the use of which the patented article could be manufactured included a sale of the right to manufacture and sell the patented article.
It seems to us that the implied warranty was that the patterns were suitable for the manufacturing of the stoves with the ‘ ‘kicker,” and that it would answer the purpose for which it was sold, and that was, that the purchaser *374would be able to manufacture the cooking stoves according to the pattern, but did not include more. The right to manufacture and sell such stoves, was a right independent of the suitableness of the patterns. We do not think the contract for the sale of the patterns, expressly or impliedly included also a sale of the right to make and sell the stoves. The defendants selected the style of pattern they preferred and ordered it. The pattern was made according to order. They received what they pur: chased. When a purchaser gets what he bargains for, and there is no warranty and no fraud, upon what grounds can he rescind the contract? The owner of a patent franchise may sell to one person the authority to manufacture the patent, to another the authority to sell it, when manufactured, and to another the right to use it. — 2 Robinson on Patents, § 763. ' A sale of either power enumerated does not include the other. The defendants in the present case might have purchased from the patentee the right to manufacture and sell the “kicker,” and yet have deemed it necessary, or to their interest to manufacture the stove with the “kicker,” by the use of the patterns manufactured by plaintiff. It did not concern the plaintiff to inquire whether the defendants had the right to manufacture and sell stoves with the “kicker” or not. All they were interested in, as manufacturers of the pattern, was to ascertain whether the purchasers were able to comply with their purchase. If the defendants in this case had purchased from the patentee, the right to manufacture and sell the “kicker” they would be under the same necessity to use patterns in the manufacture of stoves with the “kicker.” If they had owned the right when the patterns were , ordered, their liability would be unquestioned. Of course, if the vendors represented that they had the right to authorize the purchasers to manufacture and sell the “kicker,” or if they represented that the “kicker” was not patented, and the defendants were induced to make the purchase, by any such false representations, the plaintiff ought not to recover. As we have stated, the whole contract is in writing, and included in a correspondence. As we construe this correspondence the plaintiffs, being manufacturers of patterns, send out copies or plates of their different styles. Prom these the defendants made a selection of a pattern. The price was agreed upon, and *375the patterns were made and shipped, according to the agreement. No enquiries were made by the purchasers as to whether the “kicker” was patented or not, and no representation was made by the vendor which would imply that, with the sale of the patterns they also sold the right to manufacture and sell the patented “kicker.”
The direct proposition involved is, whether a manufacturer of stove patterns or moulds, who has models or photographs of different styles, which he offers to manufacture, one of which is selected by a company engaged in the manufacturing and sale of stoves, and which gives an order for a number of patterns of the kind selected, without enquiring whether any part of the stove made after the pattern is patented, and there are no representations or statements by the vendor in regard to the matter, by a sale of the patterns impliedly warrants to the purchaser, not only a suitableness of the pattern for the purposes of manufacturing .stoves, but in addition thereto warrants, that the purchaser acquires the right to manufacture and sell the stoves manufactured by the patterns; in other words, that no part of the stove is subject to a patent? We think not.
We lay no stress upon the argument that the patterns were otherwise defective, requiring an expenditure of $28 before they could be used. The defendants base their sole objection to the patterns upon the ground, that by their purchase, they did not obain the right to make and sell the “kicker.” No other objection was urged to the patterns. The matter of the expense of $28 was clearly an afterthought, brought forward at the. trial. We find no error in the record.-
Affirmed.