be depended upon as reliable and honest. A statement that a manufacturer is trust worthy is an assurance that he is so reputed

in substance that the defendant has for years guaranteed every advertisement in its columns to be honest and trustworthy and the "publishers guarantee the integrity of its ad--that nothing to the contrary is known; and vertising." This publication was read by the intestate, who was then thinking of building a house. Prior to February, 1913, she saw, in the "Saturday Evening Post," an advertisement of the North American Construction Company concerning the "Aladdin House and Aladdin System" of partly made houses, and also, an advertisement by the construction company entitled "How to Beat the Building Game." Mrs. Heathcote wrote to the construction company, which replied to her letter, and on May 29, 1913 ordered from it "a Marsden Aladdin House" for the sum of $1,464.90.

The parts of the house arrived at West Newton soon after July 29, 1913, and were taken to the land of the deceased. There was evidence that no plan was received indicating where the parts could be found, or instructions showing how the work was to be carried on; and that it required a skilled carpenter to construct the house. There was also evidence of deficiency in material; that some of the parts did not fit; that the building material was not as represented; and that in other respects the North American Construction Company failed to carry out its contract. When the construction company learned that some of the flooring was missing it authorized the plaintiff to purchase it at the expense of the company. In December, 1913, the plaintiff wrote to the company "stating the items that were short," and later, in settlement of the claim, received from it a check for $69 which he refused to accept.

while an action may lie upon such a promise in case of fraud, it is not a statement which gives a right of action against the publisher if the party recommended does not do as he agrees under any particular contract. The defendant assured the readers of its publication that its advertisements were honest and trustworthy. It did not guarantee the faithful performance of contracts made by its advertisers or agree to answer for their debt or default; nor did it promise that in supplying materials for the construction of the house the North American Construction Com pany would fully and exactly carry out the terms of its agreement with the plaintiff's intestate. See Eaton v. Mayo, 118 Mass. 141.

[3] We find nothing in the evidence to show a breach of the defendant's promise. On the contrary, the defendant, according to its practice, before receiving the advertisement, made a thorough investigation of the North American Construction Company "the personnel of the company," "their standing,

There is nothing in the answer of the defendant's president that shows a failure to examine thoroughly the affairs of the construction company. It appears from his answers that the North American Construction ComThe declaration is in four counts: The pany advertised in the "Saturday Evening first, alleges a breach of the contract of the Post" during the years 1910, 1911 and 1913, defendant in guaranteeing the "honesty, and that the defendant had no knowledge integrity, and trustworthiness" of its adver- that this company was unreliable or had ever failed to fulfil its contracts. Two or three tisers to the loss and damage of the plaintiff; the second and third, are based upon the im- had been made to the defendant, but, with complaints about the construction company plied contract in holding out the defendant's advertisers as trustworthy, and its duty to one exception, it did not appear what the reause proper care "to investigate the truth of sons were, if any, for these complaints, or on what basis they were settled, if settlements said recommendation"; the fourth, sets out the defendant's fraud. At the close of the from a purchaser of a house, who said the In one case the complaint was were made. evidence the judge directed a verdict for the siding and flooring were imperfect. defendant and reported the case to this court. wrote to the North American Construction [1, 2] While there was evidence that the Company about it several times but no adjustNorth American Construction Company fail- ment was made; he then wrote to the deed to perform its contract with the plaintiff's fendant, and although he did not make the intestate, there was no evidence that this purchase because of an advertisement "seen company was engaged in a fraudulent busi- especially in the paper of the defendant," ness, was financially irresponsible, or was in but after a visit to the construction compathe habit of intentionally deceiving people. ny's factory, the construction company setThe editorial was not strictly a guarantee to tled the loss and the matter was ended. answer for the debt or default of another, These complaints did not show that the conand it contained no words indicating such an struction company was dishonest, unreliable, intention; it was in effect merely a recom- or lacking in integrity, and they are far from mendation of its advertisers. "The integrity showing any neglect on the part of the deof its advertising and the honesty and trust-fendant to investigate properly the North worthiness of its advertisements," indicate American Construction Company and the

He

There is no evidence that the representa- | 1914, whereby Byron Chandler, in the event tions made by the defendant were false. It follows that the verdict was properly directed and judgment is to be entered for the defend

ant.

So ordered.

(229 Mass. 550)

of his election not to make either of two stipulated payments as provided in the contract, agreed to reconvey and reassign to the plaintiff Edward B. Feaster an assignable license under patent No. 921537 and a patent under letters patent No. 1116580, together with all models, drawings, designs, dies, tools, con

FEASTER v. FEASTER FILM FEED CO. tracts licensing or letting machines under

et al.

(Supreme Judicial Court of Massachusetts.

Middlesex. March 1, 1918.)

1. PATENTS 213. ASSIGNMENTS -PATENT RIGHTS-TAKING SUBJECT TO AGREEMENT BETWEEN TRANSFEROR AND PATENTEE.

said patents, and all trade marks and trade names used in connection with the aforesaid patents or machines manufactured thereunder, subject to all rights and licenses, leases and agreements theretofore issued or made by Chandler, "his representatives or assigns." Corporations which took the right, title, and On the payment of $10,000, contemporainterest of the buyer of an application for pat-neously with the execution of the contract and ent, etc., took title to the patent rights subject to the terms and provisions of the agree- subject thereto, Chandler acquired all the ment between their transferor and the patentee, right, title and interest of the plaintiff in and though the instruments of conveyance to the to an application for a patent, serial No. companies did not in formal words transfer ti- 744970 (patent No. 1116580), and all the right, tle subject to the provisions of the agreement; their transferor's title in terms being subject to title and interest of the plaintiff in and to a his agreement with the patentee, and each com- certain license dated November 17, 1913, pany having actual knowledge of the agreement granted by Charles B. Gillespie under letters and of its obligations. 2. SPECIFIC PERFORMANCE 123-FINDINGS patent No. 921537. March 12, 1915, Chandler assigned, transferred and set over unto "Byron Chandler, Inc., its successors and assigns, all the right, title and interest secured to me by an assignment of Edward B. Feaster under date of October 17, 1914, and recorded in the United States Registry of patents." March 12, 1915, Byron Chandler, Inc., conveyed all the right, title and interest secured to it by the assignment of Byron Chandler of even date, to the Feaster Film Feed Company.

-ASSIGNMENTS BY CORPORATION.

In suit for specific performance of a contract to reconvey and reassign an assignable license under patent and a patent, findings that assignments by defendant corporations conveyed away all of the property used in doing business, and were voted in a private meeting of two of their directors, without a statement of other facts and circumstances, were not sufficient to overcome specific findings that there was no fraudulent intent or conspiracy practiced by the companies in obtaining a loan, and executing an agreement involving the patent rights securing

the loan.

3. CORPORATIONS 428(7) — Knowledge of PRESIDENT.

Mortgages of certain assigned patent rights by a corporation were not void, as matter of law, because the corporation, through its president, knew that an installment payment to the assignor, to become payable shortly, would not be paid, so that the result of the mortgages would be to retain control of the patent and license in the company in spite of the agreement under which it held.

4. PATENTS 213-ASSIGNMENT OF PATENT RIGHTS AUTHORITY TO CONVEY AS SECU RITY.

Where all of plaintiff's right, title, and interest in a license under letters patent and a patent were assigned by plaintiff, the assignment authorized the successor of the assignee to convey the patent rights as security for a loan. Appeal from Superior Court, Middlesex County; John H. Hardy, Judge.

Bill by Edward B. Feaster against the Feaster Film Feed Company and others. From a decree dismissing the bill, plaintiff appeals. Decree affirmed.

Francis J. V. Dakin, of Boston, for appellant. Lee M. Friedman, Thos. R. Bateman, and Swift, Friedman & Atherton, all of Boston, for appellees.

PIERCE, J. This is a bill for specific performance of a contract dated October 17,

The agreement between Feaster and Chandler provided that Chandler"at any time after the date of this agreement shall have the full right, power and authority, anything herein to the contrary notwithstanding, to grant licenses and leases of, or exclusive territorial rights to and for, and make all kinds of agreements in respect of, or otherwise deal in and with said Feaster invention and application therefor, and any letters patent that may be isSued thereon, freely and unreservedly, except that the party of the third part shall not at any time prior to the making of both payments specified in paragraph 'Eighth' of this agreement, have any right or authority to make any absolute assignment or grant any exclusive license of said invention, patent application or letters pattent, except subject to the terms and provisions of this agreement. Such agreements, leases, licenses, territorial rights, etc., herein provided for may be made and granted to cover the entire party of the third part, his representatives and life of the patent, or such part thereof as the assigns, may determine.

"No licensee, lessee, grantee, or person or corporation making any agreement with the party of the third part, his representatives or assigns, with respect to said invention, patent application or letters patent, shall be required to ascertain or determine that any of the obligations of this contract, are performed or carried out by any of the parties hereto, but shall be free to deal with the party of the third part, his representatives and assigns, as having absolute authority and right to grant such rights under said invention and letters patent."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(229 Mass. 467)

HUGHES v. WILLIAMS. (Supreme Judicial Court of Massachusetts. Middlesex. Feb. 28, 1918.)

1. RECORDS 9(9)-REGISTRATION OF TITLE TO LAND-BURDEN OF PROOF.

2. VENDOR AND PURCHASER

on the same date he took a deed back from Jones to himself, which was not recorded until March, 1908. Meanwhile, on May 24, 1906, while the record title stood in the name of Jones, one Duckery brought an action against Jones, and attached the locus, which The burden of proving that he was enti- was sold on execution sale to the petitioner, tled to registration of the title to the premises and a sheriff's deed thereof to him dated rested upon petitioner therefor, and remained April 10, 1909, was duly recorded. The peupon him throughout. 228(3)—ACTU-titioner alleges that he is the owner of the land by reason of this sheriff's deed. The respondent pleaded that he was owner by virtue of his deed of April 1, 1896, and of the deed from Jones. The previous trial resulted in findings that Williams protested at the execution sale, and that the petitioner before his purchase at the execution sale was informed that the beneficial interest was in Williams and that Jones had a bare record title. The single question submitted at the last trial was this:

AL NOTICE OF UNRECORDED CONVEYANCE. By Rev. Laws, c. 127, § 4, a conveyance of an estate in fee simple, though unrecorded, is valid as against any person having actual notice

of it.

3. EVIDENCE 91-BURDEN OF PROOF.

The party who makes and is required to make an assertion of a fact in order to set forth a case as matter of law entitling him to prevail, and whose case requires the proof of that fact, at all times has the burden to prove it, but where the party upon whom the burden of proof is cast offers competent proof of the fact, and his adversary, instead of producing proof to negative the fact, proposes to show another and a distinct fact which avoids the effect of the first, the burden of proving rests on the party proposing to show the latter fact, which is an affirmative defense.

4. RECORDS 9 (9)-REGISTRATION OF LAND -WAIVER OF RIGHTS UNDER DEED OR EsTOPPEL TO ASSERT-BURDEN OF PROOF.

On petition for registration of title to land, the burden to prove waiver by respondent of his rights under a deed, or estoppel against asserting them, is on petitioner; such issues being affirmative.

5. RECORDS 9 (9)—REGISTRATION OF LAND -LACK OF ACTUAL NOTICE OF UNRECORDED DEED-BURDEN OF PROOF.

On petition to register title to land, respondent claiming under an unrecorded deed, the burden was on respondent to prove that petitioner had actual notice of such unrecorded deed, an essential part of his case.

Exceptions from Superior Court, Middlesex County; William Cushing Wait, Judge. Petition for registration of title to land by Heath Hughes against Joseph E. Williams. From decree of the land court, respondent appealed to the superior court, and to an instruction petitioner excepts. Exceptions sustained.

Wm. H. Lewis and Arthur P. Gay, both of Boston, for petitioner. Geo. C. Dickson and Frank Paul, both of Boston, for respondent.

RUGG, C. J. This is a petition for the registration of title to land. It was appealed from the land court to the superior court, where it was tried to a jury upon four is sues. There was found to be no error of law in the trial of three of these issues, but as to the other issue exceptions were sustained and a new trial ordered confined to that is sue. 218 Mass. 448, 105 N. E. 1056. The material dates and facts respecting the chain of title are these: On April 1, 1896, the respondent Williams acquired title to the locus by deed which was duly recorded. He retained that title until July 5, 1901, when he deeded it to one Jones by deed duly recorded;

[1] The burden of proving that he was entitled to the registration of the title to the premises rested upon the petitioner, and remained upon him throughout. Temple v. Benson, 213 Mass. 128, 132, 100 N. E. 63; Hughes v. Williams, 218 Mass. 448, 449, 105 N. E. 1056.

[2] The petitioner's title appeared to be perfect on the record. It could be defeated only provided that Duckery, the attaching creditor in the action against Jones, had actual knowledge of the unrecorded deed from his debtor, Jones, to the respondent, and provided it appeared further that the petitioner himself at the time of his purchase also had such actual knowledge. The respondent did not attack the sufficiency of the petitioner's title on the record, nor did he assail the validity of any instrument through which the petitioner claimed title; but he asserted title in himself on the strength of facts which he alleged existed outside the record, namely, actual knowledge by Duckery at the time of making his attachment of the existence of the deed to himself and actual knowledge by the petitioner of the same fact at the time of his purchase. If these were the facts, the respondent was entitled to prevail under the terms of the statutes. Wenz v. Pastene, 209 Mass. 359, 95 N. E.

For other cases see same topic Яnd KEY-NUMBER in all Key-Numbered Digests and Indexes

793. But this assertion by the respondent to the case at bar. It also is said in Jackwas in the nature of a confession of the rec- son on Real Actions, p. 158: "If the defendant ord title, of the petitioner and an avoidance of its natural force and effect by the existence of extraneous facts, which as matter of common honesty and under the statute would prevent the petitioner from taking advantage of his clear record title.

The practical application of the rule often-guishable from the decision as to waiver of times raises questions of difficulty. Several cases have arisen where the burden of proof of the "actual notice" mentioned in the statute has been referred to. In 'Pomroy v. Stevens, 11 Metc. 244, at 248, it was said:

"This statute requires that the plaintiff must be shown to have had actual notice that there had been a conveyance to the defendant of the estate. The party who claims under an unrecorded deed must prove that the subsequent purchaser had actual knowledge or notice of such deed."

In all these cases as they were presented the burden was upon the tenant in a real action, or upon the defendant in an action of The only way to bring material evidence betrespass, and hence what has been quoted fore the full court on appeal in an action at law from these opinions is precisely applicable is by exceptions or by report.