Day v. Union India Rubber Company. ture of army and navy equipments, sheet rubber, &c. All these various licenses afterwards became consolidated in the [*218] Union *India Rubber Company, the defendants in this suit, and present therefore a complete defense to the suit, if Goodyear was the true owner of the Chaffee renewed patent. And this, as we have seen, has already been held in the case of Hartshorn v. Day. Besides, in the agreement of the 5th September, 1850, between Chaffee and Judson, it is expressly stated that the patent was conveyed to the latter, to secure it for the benefit of Goodyear and those holding rights to use it under and in connection with his licenses; and Judson was also directed to hold it for their benefit. The license of the defendants therefore, in this case, stands upon two grounds, either of which would seem to constitute a sufficient defense to the suit for infringement: First, authority from Goodyear, the owner of the renewed term of the patent; and second, the express recognition of Chaffee, the patentee, of the right of these parties as licensees of Goodyear to use the improvement. And we may add to these grounds of defense, that upon the interpretation of the court in the case of Hartshorn v. Day, of the several agreements relating to this patent, and especially that of the 5th September, 1850, Day took no interest in it under the assignment of Chaffee of 1st July, 1853, he having previous to that time parted with all his interest for the benefit of Goodyear and his licensees. Some evidence has been given in the case for the purpose of showing that the agreement of 5th September was not sealed at the time. of its execution, and that the seal must have been annexed afterwards without any authority. But it is too slight and uncertain to be entitled to any weight. It has also been insisted that this instrument was procured by fraud from Chaffee, through the contrivance of Judson. But the evidence relied on is very general and unsatisfactory; and, besides, it is too late to set up any such ground of defense after Chaffee himself has carried the agreement into execution, and acted under it, receiving its benefits for some three years. And what is remarkable on this point, he is the chief witness to make out the alleged fraud. He has taken It has also been urged that the licensees have not contributed to the fund for paying the expenses of the renewal of the patent. But this is a matter in which Chaffee had no interest. the indemnity of Judson against these expenses. were never liable to him for them. The licensees Without pursuing the examination further, we are entirely satis Payne v. Niles. fied, for the reasons above stated, that the decree below is right, and should be affirmed. JACOB U. PAYNE and others, Plaintiffs in Error, v. JONATHAN J. NILES and others. 20 H. 219. PARTIES IN ERROR. 1. No one can bring a writ of error who was not a party to the judgment which is sought to be reversed, nor can any one be made defendant to a writ of error who was not a party to the judgment. 2. The fact that a party sought to intervene in the suit below whose petition of intervention was dismissed, and who had not served a writ on or otherwise made a party the person who recovered the judgment, does not authorize the intervenor to bring a writ of error; and his writ, if brought, will be dismissed. THIS is a writ of error to the circuit court for the eastern district of Louisiana, and it is sufficiently stated in the opinion. Mr. Chilton and Mr. Davidge, for plaintiffs in error. Mr. Benjamin and Mr. Pike, for defendants. Mr. Chief Justice TANEY delivered the opinion of the court. *This case is brought here by a writ of error directed to [* 220] the circuit court for the eastern district of Louisiana. It appears by the transcript, that Niles & Co., citizens of Ohio, brought suit in the circuit court against Andrew Knox, of Louisiana, for the price of certain machinery furnished to the latter for the use of his plantation. They claimed the vendor's privilege on the articles sold, which were still in possession of the vendee. The suit was instituted on the 21st of February, 1855, and on the 17th of April, 1855, a decree was rendered in favor of the plaintiff for two thousand six hundred and eighty-six dollars and sixty-nine cents, with interest, and with the vendor's privilege on the machinery. On the 19th of March, 1855, Payne & Harrison, the plaintiffs in error, citizens of Louisiana, filed in the circuit court a petition of intervention in the above-mentioned suit, alleging that Knox was indebted to them in a large sum of money, for which they held a mortgage on the plantation on which the machinery in question was erected; and claiming that their right by virtue of this mortgage was superior to the vendor's lien of Niles & Co., and prayed a citation for Niles & Co.; but did not pray for any process against Vol. ii-24 Payne v. Niles. Knox. Nor does the record show that he ever voluntarily appeared to or answered this petition. And on the 8th of February, 1856, it was by the judgment of the circuit court finally dismissed, with costs. A statement of facts was afterwards agreed on between the counsel for Niles & Co. and the counsel for Payne & Harrison, which is set forth in the transcript, but it does not appear that Knox assented to it, or indeed had any knowledge of it. Afterwards, on the 18th of February, 1856, the counsel for Payne & Harrison represented to the court that Knox had died after the suit on their intervention was instituted, and that no one had qualified as his executor or administrator, and that there was no representative of his estate, except William A. Broadwell, of New Orleans, who was the duly-appointed and qualified syndic of said Knox; and thereupon moved the court that the said Broadwell be made a party to the cause, which was accordingly ordered by the fourt, and a copy of the order served on him by the marshal on the succeeding day; and on the day of the service, this writ of error was sued out by the intervenors, Payne & Harrison. The writ recites that a judgment was rendered in a case between Niles & Co., plaintiffs, and Broadwell, syndic of Knox, defendant, and Payne & Harrison, intervenors in said suit, who were plaintiffs, both as against Niles & Co. and Broadwell, syndic of Knox; and citations were issued and served on Niles & [ * 221 ] * Co. and Broadwell, to appear in this court upon the return of the writ of error. It will be seen, from this statement, that Payne & Harrison were not parties to the judgment in the suit of Niles & Co. v. Knox. The only judgment in the circuit court to which they were parties, was the judgment dismissing their petition of intervention; and Knox was not made a party defendant in that proceeding, nor was he a party to that judgment. The order of the court to make Broadwell, his syndic, a party, was passed after this judgment was rendered. Writs of error to remove the judgment of an inferior tribunal to this court are, under the acts of congress, governed by the principles and usages of the common law. And it is very well settled in all common law courts, that no one can bring up, as plaintiff in a writ of error, the judgment of an inferior court to a superior one, unless he was a party to the judgment in the court below; nor can any one be made a defendant in the writ of error, who was not a party to the judgment in the inferior court. Payne & Harrison, therefore, have no right to sue out a writ of error upon the judg McGavock v. Woodlief. ment in the suit between Niles & Co. and Knox, to which they were not a party, nor can they make Knox or his representative a defendant in a writ of error brought upon the judgment on the petition of intervention, to which neither Knox nor Broadwell, his syndic, was a party. This writ of error attempts to do both, and is therefore not warranted by law. It cannot bring the judgments referred to, or either of them, before this court, and must therefore be dismissed, with costs. JOHN MCGAVOCK, Plaintiff in Error, v. PETER WOODLIEF. 20 H. 221. BROKERS' COMMISSIONS ON SALES OF REAL ESTATE. 1. Where a real estate broker was employed to sell on clear and definite terms, his commissions are not due until he has found a purchaser ready and willing to comply with those terms. 2. Where a case is submitted to the court, waiving a jury, a finding of facts filed after the judgment, but stated to be as of the date of the trial, will be presumed to have been filed by consent. THIS is a writ of error to the circuit court for the eastern district of Louisiana, and the case is fully stated in the opinion. Mr. Benjamin, for plaintiff in error. Mr. Taylor, for defendant. * Mr. Justice NELSON delivered the opinion of the court. [224] This is a writ of error to the circuit court of the United *States, held by the district judge for the eastern district [* 225 ] of Louisiana. The suit was brought by Woodlief, a broker in the city of New Orleans, against the defendant, to recover the sum of two thousand six hundred dollars, as a commission for negotiating the sale of a plantation and slaves. The petition sets out that on the 16th November, 1855, the defendant employed the plaintiff to procure a purchaser for his sugar plantation, situate on the Bayou La Fourche, in the State of Louisiana, and seventy slaves, for the price of $130,000, of which $20,000 was to be paid in cash, and the remainder in five equal annual installments, with interest. That the plaintiff soon thereafter found a purchaser, namely, George M. Long, of the parish of Carroll, State of Louisiana; and on the 20th November, said Long, with the McGavock v. Woodlief. plaintiff, went to the residence of the defendant, examined the property, and concluded an agreement of purchase according to the terms stated. The facts set forth in the petition were denied by the defendant, and the cause went down for trial before the court, a jury having been waived, when a judgment was rendered for the plaintiff, for the amount claimed. The case comes up on a writ of error to this court upon a statements of facts by the judge. The issue was tried in the court below, and the judgment rendered on the 24th June, 1856. A motion for a new trial was heard, and denied on the 9th of October following. The writ of error was then prayed for and allowed, and the statement of facts drawn up and ordered to be filed, nunc pro tunc, as of the 24th June, 1856, the day the cause was first tried before the court. An objection was made on the argument, that this statement of facts could not be noticed, it having been made up after the term in which the cause was tried, and as it did not appear that the court was requested to draw it up at the time of the trial. We are of opinion that, as the judge has drawn up and filed the statement as of the day of the trial, it is but reasonable to presume that he had been so requested at the trial by the counsel for the defendant. We agree that the request must be made at this time, in order to enable the court to notice it in error; but the statement may be drawn up afterwards, as shall be convenient for the judge. This is the settled practice in courts where the proceedings are according to the common law. The bill of exceptions may be settled after, though the exceptions must be taken at the trial. As to the merits, we are of opinion that there was error in the decision of the court below. The terms of the sale, as given by the vendor to the [226] * plaintiff, the broker, were simple and specific-the price $130,000, $20,000 in cash, and the remainder in five equal annual payments. Long, the purchaser, agreed to these terms, as averred in the petition, and not questioned in the case; and if he had offered and was in a condition to consummate the agreement according to its terms, no doubt the commission would have been earned, and the recovery below right. But when the parties proceeded to the execution of the contract of sale, a change was proposed by Long, the vendee, which, for aught that appears upon the facts or in the finding of the judge, was never assented to by the defendant. The change was substantial, and called for a new and distinct agreement before the vendor could be bound. The wife of |