This claim is merely for an aggregation of prior reversible fiues with the other three features before existing in unison in the same stove, namely, an anti-clinker opening, mica windows, and an isolated grate, and does not contain any patentable invention. The last· named three features operate together in the same way in a stove without reversible flues and in a stove with them, and no combined patentable result is due to the union. The bill is dislilissed, with costs.
ADAMS & WESTLAKE MANUF'a Co.
MEYROSE and, another.f!)
(Oircuit Court,E. D. Mi88ouri.
The question of whether or mot reissued letters patent sued on in an action for an infringement are brp,!lder and cover things not comprehended by originsl letters patent, upon :which they are based, is not examinable on demurrer to the bill where the origirialletters patent' are not se't out in nor attached as an exhibit to the bill, and profert thereof is not made.
,Demllrrer to Bill. This is a suit for an infringement of reissued letters patent for a new and usefulimprovement in lanterns. The bill states that the original letters, patent were issued to one J. H. Miltmore August 8,1865 ; that said patentee surrendered the same, and that reissued letters patent were issued to him on the ninth of April, 1867; that on the nineteenth of October, 1!:!80, the complainant being the sole owner and assignee of said reissued letters patent, and the said patentee thereto consenting. surrendered said reissued letters pa,tent, and made application for a reissue of the sa,me, with an amended description and claim thereto attached; and that on the nineteenth day of October, 1880, the reissued letters patent of the, United States sued on were issued and delivered to complainant. Profert of the last, but not of the first, reissued or original letters patent is made, and a copy of the letters patent sued, bn is annexed 'to the bill as Exhibit A. The infringementis allElged in the following language:
"Yet the said defendants, well knowing the premises, as your orator believes, and without your orator's consent or allowance, and without right, and in violation of the aforesaid rights of your orator, have, within the state
-Reported by B. F.Rex, Esq., of the St. Louis bar.
NIELSON V. READ.
of Missouri and elsewhere in the United States, made, used, and vended, and are still making, using, and vending to others to be used, numbers of Ian. terns," etc. In conclusion, the bill asks for a discovery for damages, and for an injunction. . The defendant demurred to the bill on the grounds, among others"That it is apparent from the letters patent and reissues thereof stated, and profert of which is by said bill made and taken as a part thereof, that said reissues, especially reissue No. 9,422, marked as Exhibit A to complainant's bill, is broader, and covers things not comprehended by letters patent No. 49,290, dated August 8, 1865, the original letters upon which said reissues are founded." -And filed a copy of the original patent with the demurrer. Noble « Orrick and Coburn et Thatcher, for complainant. Edward J. O'Brien, for defendants. TREAT, D. J. As intimated at the hearing on the demurrer, the questions designed to be presented concerning the reissue are not before the court in such form· as to enable a decision to be had. The defendant will, therefore, have to answer. The d(lmurrer is overruled, and leave given to answer within 10 days. .
(District Court, l!J. D. PennsylfJania.
May 19, 1882.)
Where the sum named is intelligently and uneql}ivocally stated to be the ascertained or liquidated damages for the breach of a contract, and the language is not qualified or rendered doubtful by other expressions contained in the paper; and especially where the actual extent of damage is difficult of aseertainment, and the sum named is not very greatly in excess of the probable injllry,-the amount will be treated as liquidated damages.
2. SAME- COMMISSIONS.
A charter provided that the cargo should be delivered to the consignees, " to whom the vessel is to be addressed inwards and outwards, paying a commission of 2.J1l per cent. on total amounts of freight; >II' >II' >II' the captain to employ charterers or their nominees, at ports of loading and discharge, for ness, on usual terms; failing which they or their agents shall be at liberty to deduct from the freight the sum of 50 guineas liquidaterl damages.". The captain did not employ the charterers for his outward business. lIeld, that the 2.J1l per cent. commission oil the outward freight was inefdent to the employment
*Reported 'by Frank P. Prichard, Esq., of the Philadelphia bar.