The note in suit was given upon and for the purchase “of the right to manufacture in the county of Chittenden, Rogers’ patent mowing machine,” for which the payee claimed to have a patent. »■
The defendant’s evidence tended to show that said patented invention was utterly worthless, and could not be made to work as a mowing machine at all; that the defect was in the principle of its construction, &c.
Stone sold the right and took the note, payable to himself or bearer twelve months from date. Clough sues it, claiming to hold it by legitimate transfer from Stone'to Ball, and from Ball to himself, while current, and for sufficient consideration, and without notice of defect or defence on the score of consideration. The defence is total want of consideration.
The court charged the jury, that, if “the patent right was of no value from the worthlessness of the machine patented, in the respect which the defendant’s evidence tended to show, that would constitute a perfect defence as to Stone, notwithstanding the patent may have been a legal one.
We think this was correct, upon common and well settled principles, and in conformity with the doctrine assumed and enunciated in Cragin v. Fowler et al., 34 Vt.
The patented right was the consideration for the note. The defendant’s evidence tended to show that that was utterly worthless,— because the invention could not be made to work as a mowing machine at all; that the defect was in the principle of construction, &c. The very thing purchased was utterly worthless,
The expression, “notwithstanding the patent may have been a legal one,” we understand to mean no more than that the letters patent were authentic and not vacated. For we understand that, though such worthlessness of the patented invention as the evidence tended to show, would be a ground for holding the patent invalid, still it does not necessarily imply that any intrinsic defect inheres to the letters patent themselves — and until vacated, their invalidity for this cause can be asserted only by persons against whom they are sought to be enforced, and for cause shown a,Uunde the letters them* Selves,
*427This was not the case of the purchase of a chance or hazard, like some of the cases cited in the argument, but the purchase of an existing right. If that was utterly worthless, then, of course, it could not constitute a valuable consideration. So far as the question of consideration is concerned, it would be immaterial whether the defence of failure was put upon the ground that no right existed under the letters patent, on account of the worthlessness of the invention, or that the right itself was utterly worthless.
The cases cited — Williams v. Hicks, 2 Vt. 36 ; Kernoble v. Hunt, 4 Blackf. 57; Taylor v. Hall, 1 New. 260 —we do not regard as in conflict with what we here hold.
In the first of said cases, the question decided was, as to the propriety of the charge upon that part of the defendant’s evidence that tended to show “that the patent was useless, and of no value and a vile cheat,” the court telling the jury that, if they found the patent to be of no value, or that the discovery was no improvement, or a much less improvement than was represented when the contract was made, then the jury were to inquire whether the defendant was defrauded into the making of the contract, and if so, they should deduct so much from what was due on the note, as the defendant had been injured by said fraud.
It involved, not the question whether total failure of consideration would constitute a defence to the note, — nor whether the utter worthlessness of the patent right would constitute such total failure, but merely whether a fraud, involving a partial failure of consideration, could be a defence under the general issue.
If the county court had confined their instructions to the point, that the patent was of no value, and the supreme court had held the instructions erroneous, for the reason that that would constitute no defence to the note, that case and decision would have borne upon this. But, when the county court proceeded to tell the jury that, if the improvement was much less than was represented, they would make a proportionate deduction from the amount of the note, a decision that such charge was erroneous does not involve, or imply that total want of value in the patent right would not constitute a defence on the ground of a total failure of consideration. The remarks of the judge outside of the point in questiqn have not the *428force of authority, however explicit and decisive they may be ; but in that case, when taken in connection with the question before the court, we do not regard those remarks as indicating any opinion upon the subject of a total want of value, as constituting a defence. The reference of Judge Paddock to the case of Taylor v. Hall, 1 New Rep. 260, has some tendency to show the view in which his remarks were made. That case did not involve any question as to the total failure of consideration. The plaintiff had contracted to pay a stipulated sum annually for the use of a patent right for a given number of years. He proceeded and used it for several years, and paid annually the specified rent. Before the expiration of the full period, it was discovered that the patentee was not the original inventor. He thereupon brought a suit to recover back what he had paid. The letters patent had not been vacated. No claim was made that the invention was not useful, or that its use had not been valuable to the plaintiff, or that there was any fraud involved. The court held that the plaintiff was not entitled to recover back what he had paid for the use that he had enjoyed.
As to the case of Kernoble v. Hunt, 4 Blackf. 57, it is plain that the judge was mainly occupied with the technical sufficiency of the pleas, and especially of the third plea, as setting forth a warranty made, or a deceit practiced by the plaintiff in his representations as to the patent in question being a good, useful and valuable improvement for grinding corn and other grain. That the court did not regard the third plea as presenting the subject of the total failure of consideration as a defence, is apparent from the language of the opinion, viz: “ that no defects or insufficiencies, either in title or anything else connected with the consideration, are complained of; there is no charge that anything was concealed from his knowledge in any way. The complaint is that the vendor represented it to be useful and valuable when it was not, and that he, confiding in that representation, purchased. These allegations are insufficient; no material issue can be made upon them; what one man may esteem very valuable another may deem worth nothing.”
Without undertaking to criticise the soundness or cogency of the ideas and processes of the learned judge, touching the technical sufficiency of that plea, it seems plain that the idea did not enter his *429mind, that the defence presented by said plea was a total failure of consideration.
As to the erasure of the words “ in the course of business”: Aside from that expression, the depositions do not show any business relation or transaction between Stone and Ball, or between Ball and Clough, except this one of the transfer of the note in suit. Each in his deposition tells what that transaction was. Does the erased- expression state any additional or modifying fact entering into or affecting the transaction of transfer ? In the opinion of a majority of the court, it does not; — that, in the mercantile law, with reference to the legal character of the transfer of negotiable paper, that expression is a mere formulary for stating a conclusion of law upon certain facts which, in the given case, may be shown to exist, — to the effect that the transfer was made while the paper was current» for a sufficient consideration moving between the parties, and bona fide. Often it becomes necessary to know just what was done, and when it was done, and under what circumstances, in order to determine whether the transfer was so made.
In this case the deponents stated specifically certain facts, and all that is shown in the case as constituting what is meant in the law by the expression, “ the course of business,”' — so that, superadding to the statement of those facts that expression neither adds, nor implies the existence of any other fact. It was expressing by the witness his judgment of the legal result of the facts which he had specifically stated. Wherefore a majority of the court think the expression was properly erased.
The remaining question is as to the propriety of the remarks of the judge to the jury touching the character of the evidence introduced by the plaintiff, and their province in considering it.
We understand the law of this state to be, that, when the legal validity of a negotiable note, as between payee and maker, is impeached, it is incumbent on a subsequent holder to show that he came by it in such a way as to give him the character of a bona fide holder for value. The plaintiff occupied that position in this case ; and, for the purpose of maintaining his right in this respect, he gave in evidence the three depositions; and they were all the evidence he had except the note itself in his possession.
*430As a general rule, both the substance and manner of a party’s evidence is a fair subject of comment by counsel on either side, both as to its tendency as evidence, and as to the weight to be given to it by the jury ; and that, in these respects, it is to be taken and considered in its relation to the other evidence in the case. In this case the defendant had given evidence tending to show a gross imposition and cheat practiced upon him by Stone, by which Stone had procured from him this note. It turned up in the hands of Clough as holder and claimant. It was sued by him, and stood for defence. Clough knew that he must maintain his title and right. He produced these depositions wherewith to do it; and it seems to us that when examined and considered in connection, and in reference to the other evidence in the case* they suggested and justified the criticism which counsel made upon them; and we think it was proper for the court to submit them to the consideration of the jury in the light of that criticism, as bearing upon the credit and weight to be given to the testimony contained in them. It was not giving loose rein to the jury, and permitting them to wander in improper fields, as counsel characterize it, but appropriately directing their attention to a striking feature of the plaintiff’s evidence, and submitting it to their consideration as bearing upon the truth and weight of the testimony.
What has already been said, as to the erasure made in the depositions, applies to the complaint of the impropriety of holding them subject to that criticism and consideration, after being thus erased. And we add, that the depositions, with that expression out, seem to us to stand for a more favorable consideration than with it in. We grant that, if that expression rendered the depositions any the less guarded, or supplied any detail of the transaction of the transfer of the note, or presented any fact affecting the plaintiff’s right to maintain his suit, it would be improper either to erase it, or, after such erasure, to permit the depositions to be criticised and considered as they were.
The judgment is affirmed.