delivered the opiniot! of the court.
When money has been paid under a contract, it cannot, as a general principle, be recovered back, Unless the contract has been rescinded, or was tainted with fraud,«or was accompanied with a warranty that has not been fulfilled, or was, in its origin, without consideration(1.)
In this case, the attempt to rescind the contract was not seasonable ; and no evidence of fraud was offered, unless it results from the variance between the description of the patent in the specification and in the assignment. But that variance is only nominal; for though in one instrument it is described as the “ discovery of a new power,” and in the others as an “application of the difference of power;” yet from the whole of each instrument it is manifest that the pa-tentee intended to represent that he had discovered a new application of an old principle.
The language used to express this idea may not have been the most appropriate ; but the plaintiff could not have been misled: for on adverting to the nature and operation of the patent, as well as to the description, he could not but -know that a new application of an old principle was the substance of the whole patent, and the sole subject matter of. his purchase.
For the same reasons this circumstantial variance did not prevent the title to the patent from passing to the plaintiff by means of the assignment. Of course no warranty has been broken by the defendant, unless he himself was destitute of a title in consequence of the principles of the patent having been before “ known or used.'’ The patent would then be void by the act of congress of April 17th, 1800.
That rarefied air was before “ known,” need not have been, proved ; but that the difference of weight between that and *350atmospherick air had ever been considered sufficient to turn machinery for “ mechanical purposes,” and had been !i used”' for that end, in the mode described by this patent, is a fact which the jury would not be warranted in finding without evidence.
As Morey, then, for aught that has been shewn, possessed a valid title to the patent, and transferred a right in it to the plaintiff, it is very questionable on the remaining point, however worthless the patent may prove to be, whether the money paid for it can be said to have been paid without any consideration.
The defendant did not enter into a warranty that the same power which turns a smoke-jack should, when applied in a particular manner, move machinery the most complicated and extensive, and supersede the use of water falls, steam and canals, though from the evidence it would seem that this may have been anticipated. Without reasoning a priori, should experiment, the only infallible test of the utility of new inventions, disappoint these sanguine hopes, the misfortune will certainly be as great to the defendant as to the plaintiff, for his expenses in procuring and perfecting his patent have been far from inconsiderable. But no evidence was offered that the patent had in fact proved worthless.
The plaintiff would seem to have received for his money all which the defendant stipulated — -a certain interest in the patent right. On this testimony it would not be competent for a jury to say that the consideration had failed, and
Judgment must be entered on the verdict.
) 4 Bos. & Pul. 260, note.