WELLING .". LA BAU.
sidered by WOODS, district judge, it s},ould be held, as there held, that evidence of payments made for infringements is incompetent to establish a price as for a fixed royalty. See, also, Shoe Co. v. "Car Co., 19 Fed. Rep. 514. There are so often extraneous influences, considerations of expediency, coercion, and sometimes collusion, affecting settle· ments thus made, aR to suggest strong practical reasons for rejecting the evidence as wholly unreliable. Black v. Munson, 14 BIatchf. 268. The complainant also insists that he should be allowed for the loss sustained by him by reason of the diversion of sales which he would have made but for the sales made by the defendant. He failed, however, to give any evidence showing the cost of his machines, and therefore there was no basis for a computation of his loss of profits. The conclusions of the master are fully approved concerning the alleged loss of the complainant by reason of the enforced reduction in his prices for his machine, owing to the competition of the defendant. A circumstance in addition to those suggested by the master, as tending to show this 'part of the plaintiff's claim to be merely (;onjectural, is found in the fact that the complainant gradually reduced his prices from the time he first put his machines on the market, down to the time when the defendant commenced to compete, and this reduction continued after the defendant was enjoined, the prices for 1882 being lower than they were in 1880. It is probable, from the fact that the defendant sold his machines at an average price of about $36 below the complainant's price, to the complainant's customers, that the complainant has sustained damages for which he has not been compensated, because he would probably have sold these machines himself, and realized his usual profit on them. But, in the absence of any proof to show what this profit would have been, no other conclusion was possible than that which was reached by the master. He may have sold his machines at a loss. The exceptions are overruled.
v. LA BAU.
(Oircuit Court, S. D. New York. August 1,1885.) L
PATENTS FOR INYENTIONS-INFRINGEMENT-DAMAGEs-ACCOUNTING.
'fhe patented process, which the defendant was found to have infringed, consisted of the use of shellac and talc in substantially equal parts,and the accounting was confined to infringements of that combination. A sworn statement of sales, etc., was filed before the master, which the patentee impeached, and called for a supplemental statement. By leave of court. the defendant,to avoid the expense of such statement, introduced evidence in reo buttal, but the master found against him, and ordered him to produce it. Held, on appeal, that as the question, whether the articles made and sold by the defendant, not included in the original statement, were composed of shellac and talc in substantially equal proportions, was a complicated question of fact which depended in part upon the veracity and the credibility of
some of tbe wltnesses;and in patt upon the testimony of experts concerning the correctness of analy-ses' of specimens of the article and the character of one of its components (fibre-white) commercially, mln.eralogically, and chem· . ieally, the ,finding of t4e master would not be disturbed. ' ,
2. SoUlE. ' It is only in cases of extreme hardship to the defendant that the court will
, review an incidental ruling of the master, in the course of the accounting, when that ruling can be reviewed upon exceptions to bis report.
In Equity. On application to review an order of the master. At the hearing an infringement was found of reissued letters patent No. 5,940, of June 30,1874, to William M. Welling, fora process for the manufacture of artificial ivory, and as to the patent a decree was entered for an injunction and accounting; "the injury upon the accounting to be confined to infringement, consisting of the use of shellac and talc in equal parts substantially." 12 Fed. Rep. 875. Frederic H. Betts and a. Wyllys Betts, for plaintiff. Luden Birdseye, for defendant. J. An interlocutory decree having been ordered for the W complainant. adjudging the validity of his reissued letters patent, No. 5,940, and the infringement thereof by the.defendant, the cause was referred to a master, to take an account of damages and profits. During the course of the hearing before the master, an order was made by the court requiring the defendant to render a statement, under oath, before the master, of all sales and deliveries of articles made by him, containing shellac and talc in composition, with the names of the persons to whom such articles were sold, and the quantity sold to each, since the thirtieth dAy of June, 1874; and to produce specimens of all the articles of shellac and talc in combination, made and sold by defendant since that date. Upon the production of this statement before the master, the question arose whether in the account produced all the articles which were composed of shellac and talc in substantially equal proportions were included; only such articles an infringement of the complainant's patent. The complainant introduced evidence to show the manufacture and sale of other articles by the defendant, composed of these ingredients in the requisite proportion, and called for a supplemental statement. As the making of such a statement was likely to devolve considerable labor and expense upon the defendant, leave was granted to the defendant, by an order of this court, to introduce evidence to show that none of the articles made or sold by him, which had not been included in the former statement, were composed of shellac and talc in substantially equal proportions, in order that, if the master was satisfied that the former statement contained a full account of the sales of all infringing arti· cles made by' the defendant, the defendant might be relieved from the burden of producing the supplementary statement. Voluminous proofs were introduced by the respective parties upon this preliminary issue, and the master has made an order requiring the defendant to produce the supplementary statement. An application is now made to the court by the defendant to review that order of the master.
WELLING fJ. LA BAU.
A careful examination of the evidence shows that the question whether the articles made and sold by the defendant, hot included in the original statement, were composed of shellac and talc in substantially equal proportions, is a complicated question of fact, depending in part upon the veracity and the credibility of some of the witnesses, and in part upon the testimony of experts concerning the correctness of analyses of specimens of the article, and concerning the character of one of the components commercially, mineralogically, and chemically. What amount of talc was used involves the questions whether a certain proportion of one of the ingredients was in fact talc, or was fibre-white; and, if fibrewhite, whether fibre-white, although not commercially the same thing as talc, is mineralogically and chemically the same. The question also arises whether fibre-white is an equivalent for talc. The experts differ diametrically in their testimony The court has not the benefit of any opinion of the master, and is therefore ignorant of the theory which he has adopted. If he has found the fibre-white is merely an equivalent for talc, as it was not a known equivalent when the patent was granted, the complainant cannot predicate infringement upon its use by the defendant. If, on the other hand,he has found that it is talc, although not dealt in commercially by that name, he has determined a disputed question of fact, upon which the evidence is very conflicting. Upon the case as it is now presented, and without an of ascertaining the views and reasons of the master, the court cannot safely assume that he is mistaken. The report of the master will not be set aside as to matters of fact upon which the evidence is doubtful, or the inferences uncertain, much less where his conclusions are reached upon conflicting testimony, and involve to a greater or less degree the credibility of the witnesses. The practice which has been pursup.d bere is not to be commended. The regular and orderly way to test the question of the extent of the defendant's infringement, is upon exceptions to the master's report at the conclusion of the accounting. It is only in a case of extreme hardship to a defenda.nt that the court should be asked to review an incidental ruling of the master, in the course of the accounting, which can be reviewed upon exceptions to his report. There was enough here, probably, to justify the attempt which has been made, but the hardship to the defendant is a les,;; evil than the danger of reaching a wrong decision upon the merits. It is more judicious to require the accounting to proceed in the ordinary way.. When the master's report is made, if it is excepted to,his findings of fact will appear, and the court can review them intelligently, and with a stronger probability of reaching a correct result than is now possible. The application of the defendant is denied, and he is directed to comply with the of the master
THE EDWIN BAXTER. I PARK 'IJ. THE HULL OF THE EDWIN BAXTER.
(Diatrict Oourt, S. D.New York. June 21, 1887.)
Under admiralty rule 28 of the supreme court, which requires libelant's interrogatories to be propounded "at the close of the libel," libelant may not, of course, propound interrogatories to the claimant after the filing of the answer. The libelant's proper practice is to apply to the court for leave to amend his libel, and to add at the close of the amended libel the desired interrogatories. Rule 99 of this court is controlled and superseded by rule 28 of the supreme court. .
SAME-AMENDMENT OF LmEL.
In Admiralty· . Wilcox, Adams Macklin, for libelants. Carpenter Moshe:r; for claimants.
BROWN, J. The claimants having in their answer interposed new matter in avoidance of the allegations of the libel, the libelants propounded interrogatories, under rule 99 of this court, which permitted interrogatories to be propounded by "either party to the other within four days from the putting in of the claim or answer or other pleading." The claimants, under rule 100, have objected to these interrogatories on the that they are not allowable under the provisions of the twentythird rule of the supreme court in admiralty. Rule 99 regulated the practice in this district prior to the adoption of the twenty-third rule of the supreme COUrt in 1844. The latter covers the same general ground as the former; and in the restrictions interposed, requiring the libelant's interrogatories to be propounded "at the close of the libel," it controls and supersedes the former rule of this court.' The practice is essentially the same as that in equity, in which the interrogatories are limited to the subjects contained in the libel. Rule 51 of the supreme court, promulgated in 1854, affords to the libelant, in cases like the present, the desired relief in another form, namely, through an amendment of his libel upon application to the court. To such an amended libel. when allowed, the desired interrogatories can be regularly added, under rule 23. See Tabe:r v. Jenny, 1 Spr. 315, 316; Gladding v. Oonstant, Id. 75, note; The David PraU, 1 Ware, 497. The objections to the present interrogatories must, under the rule, therefore, be sustained, and the interrogatories disallowed, except upon an amendment of the libel.
by Edward G. Benedict, Esq., of the New York bar.