FOYE 'V·. ,NIOlIOLS. '.
And if you find this is a case calling for the imposition of exemplary damages, you should not, in an effort to punish the d,efendant for the malicious, gross, or excessive action of it!J conductor, yourselves commit an excess by awarding to the plaintiff an extravagant or unreasonable·amount. You are the sole judges of the facts in the case, the credibility of the witnesses, and the weight to be given to their testimony. The jury returned a verdict for the plaintiff for $4,900. The defendant filed a motion for a new trial npon the ground the damages were excessive. This motion, before argument upon it, was withdrawn; the plaintiff agreeing to recl3ive $4,090 in satisfaction of his judgment, in consideration of the speedlpayment of that sum and the withdrawal of the motion.
(Oircuit Oourt, D. Od1i/ornia. July 24, lSS2,y
PATENTS FOR INVENTIONS-SIMILAR CONTRIVANCES.,
Where defendant's machine employs the same contrivance as the machine of the plaintiff, it is an infringement, although itmay be an impl'ovement upon plaintiff's patent.
If the several features or inventions separately claimed by complaJnant &r6 admitted to be useful when employed in defendant's machine, it is ev,d"ilce of their usefulness-in the machine of the complainant. .
In Equity. SAWYER, C. J., (orally.) In the case of Faye v. Nichols Ihai'e reached a conclusion. It is a patent case-a patent plow or pulverizer.· One party calls his implement a plow, the other calls his a pulverizer. I am satisfied, on an. examination, that the first, fourth, and fifth claims are infringed, and that the patent is a valid patent as to those claims. I do not think there is any anticipation. The point most relied upon is as to whether the blades of the complainant's plow are "transversely." The atgument is on the word "transversely." I think the argnment is hypercritical, on the strict mathematical scientific definition of the term "transverse." The drawings show exactly the form, and the model also, which the defendant himself presents, so that there can be no doubt as to what
the party means·.. The di'awing and model give precisely. the form in which the blade when bent on the shaft of the machine takes, which defendant· calls" dishing, " and the oomplainant convex." The fact that the complainant christens his implement a "plow," and the defendant his a "pulverizer," cannot affect the character or operation of either machine, as shown by the. models and drawings, which constitute important parts of the description. So, whether the term "concavo-convex transversely" describes the complainant's blades with striot rnathematioal or scilmtificprecision and acouracy, cannot affect the character or operation of the implement, as shown in the models .and drawings. The whole, taken together, , shows what his The defendant does not so wide as the·complainant suggests, but the blade performs the same service in sl\bstantially, nay, precisely, the same way. I do not think there can be any misunderstanding as to what the complainant means by his description; that is to say, the description of thaimplementand its operation in the specifications and drawings. There oah be no doubt but that the defendant's blade performs the same operation in precisely the same way. There was some critioism on the single shaft of oomplainant, and on the draft at right angles to the axis of motion. But defendant's two plows or pUlverizers-whatever they may be calledare on a single shaft,-jointed, it is true, but still a single shaft. There is in his machine a contrivance by which he can set his opposite plows absolutely at right angles, or at any desired inolination, in order to accommodate itself to the different varieties of soil. This may possi. bly be an improvement, but if so, he still uses the two plows on opposite ends of the shaft, with their screws running in opposite directions, the one counteracting the strain of the other in the opposite directfon. He embraces the complainant's invention, and even if the complainant's plows on the opposite ends of the shaft are Bet at an angle, the draft would be at right angles to the general line of the axis of revolution of the entire machine. The other point that was very strenuously argued and dwelt upon was as to whether the oomplainant's invention is useful or not. It was contended that the evidence is insufficient to show its usefulness. If we concede, for the purpose of the argument, that the complainant's own testimony on the question of usefulness left it in doubt, it is still one of those cases which so frequently arise where the defendant uses the preoise features of the prior maohine, and still insists that they are not useful; and in this case his machine man-
WRECKING CO. V.PH<ENDf INS. CO.
neatly depllnds on those In fact, is all there is of the defendant's machine, so' far as its operation as' a 'plow or pulverizer is concerned, and the several features used are separately claimed in plaintiff's patent. He tElstified that his machine is ;by far the most useful machine for the purposes intended in existence. If,then, the several features or inventiollsseparately by the claimant are useful in the defendant's machine, they"pllist be usefuUn the other. Withouttnose features, covered by the several claims sustained, there would be no machine of the defendant. and for the reason Defendant's patent does not cover those that they are anticipated by Foye. It orily' covers those features in combination with some other minor features; It certainly embraces the features of the cOI1lplainant's'machine, and they are the operative elep'ents of defendltnt's machine, without which his machine festly woul4 not work' well. The the several subfeattires or combinations separately, aind all are used, in which is admitted to be useful-That is ample e"idence of their Those are the main points on which the contest arises, ami on which the argument was expended. ' I think that the patent is a valid' one as to these three claims, the first, fourth, and fifth; alld the defendant's machine infringes each of those three claims. ,There must bea decree for complainant with reference, to those and it must be referred to the standing master to ascertain profits. It is so oi;dered.
Co. and others
(Oircuit Oourt, E. D. New York. July 8, 1882.) 1.
ADMIRALTy-MARITIME SERVICllH-ADJUSTING GENERAl, AVlllRAGE.
Services performed by average adJusters, inclUding expenses, disbursements, an<i charge,S incidental to ascertaining, and adjusting the proportionate share chargeable to the cargo of the expense incurred in saving and discharging the cargo,and delivering it, are maritime in their nature; and an express contraC' services is a maritime contract and cognizable in the admiralty. , . for 2.
SAME.-SALVAGE-WRECKING COMPANY. ' "
. , Services performed byaw'recking company in saving the·cargd of a stranded vessel lind transporting it in different lots to a place and there stor-