In Equity. On motion for a rehearing. This ",as, suit by: Willi;trn M.Welling .againstJohn H. La Bau for infringement of a patent. '.l'he report of the master in favor of the complainant was, on 25th of February, 1888, confirmed, and the defendant's exceptions thereto were overruled. 34 Fed. Rep. 40. See, also"12 Fed. Rep. 875, B2 Fed. Rep. 293, and infra. The defendant nOWinoves(for a rehemingupon the sole ground that the court fell into err()rin not sustaining the to the master's third finding of fact, which is as follows: "That the said white checks so manufactured and sold by the defendant, assuming the fiber white to be talc, contained shellac and talc in substantially equal parts." Frederic H. Betta, for Lucien BirdseyeandJames O. Cloyd, for defendant.
COXE, J. To what was said upon the argument but little need be added further'than the stateIi.1Emt that, after a re-examination of the record, iIi. theIight of the elaborate ,argument and brief addressed to this single proposition, the courtadheres to the conclusion that there is sufficIent evidence to sustain theinaster's finding The reasoning of the it is thought, gives und,ne prominence to the testimony produced by him, and practically ignores that of the complainant. The master might have credited the former, but evidently he was, not convinced of its truth, and was therefo;rejustified in rejecting it, and in acthe statements of and his witness, confitmedas of thein were by the defendant's testimony. The analysis of the that of Prof. positively, ali1d that of Dr. Ledoux by fair lmplicidion, show the white checks to be composed of shellac and talc in substantially equal i l l addition to this there was proof that during the })erlod in question the defendant had consumed in his equal amoui}ts'ofthese ingredients,-about 16 ,000 pounds of each. Tho, question was one of' fact, and the master's decision. sustainedas it'isby evidence, ought not to be disturbed. The motion is denied. ' "
(Circuit Court, S. D. NewYorlc.June 19,1888.)
TO INCREASE DAMAGES
,:. Where, iI!' a suit for infringement, for the first time upon the hearing Of exceptions to a master's report upon the accounting the objection has been pre, the reissue patent is void, and, the original patent not having been '. put in evidence·. tlle court has held that though the reissue is manifestly void . U1e ev;idence cannot be considered because of the inexcusable lachellof de:fendant.infailing to present it to the court at an earlier day, yet'onmotion for t4acourt,in -its discretion; to increase the damages under Rev. St, U. S. ,.§§ :tlillfacUhat the patent is.vQid should betaken into consideration. '
W;E;LLJJ.IOG .1i. LA iB<\U.
2.SA}fE·....,,"V;]llXA.'l'IOUS t1'l'IGATION. . ,. " '., . . . i . ' In '0. iluitJor infringement of a patent, where the defense. though active and annoy'iilg to'complainant, has npt been, in a 'legal sense, wanton 'or unjustifiable, the defendl1Jlt having unquestionably considered;h'imself in the right and acted, fairly and rowards!I a motion for the court to Increase the daIX1;ll.ges, as It IS allowed 10 ItS dIscretIon to do, under Rev. StU.S;, §§ 4919, 4921, should not be' granted. .
In Equity. On motion to increase the damages for infringement of cotnplainitnt's letters patent under Revised Statutes of the United States,sections 4919 and 4921, referred to in the opinion, section 4919 provides: "Dantages for the, infringement of any patent recovered ·by actjon . on the case intlIe name ot the party interested, either as patentee,assign'ee, or grantee, and whenever in any such action 8 verdict is renderedfortheplaintiff, the court may enter judgment .thereon for any sum abO\Te the amount found by the verdict 8S the actual damages sustained, according tQ the circumstances of ,the case, Dot exceeding three times the alUount of sucb, verdict. tQgether ,with the' coats. " Section 4921 provides, among other things, as follows: "Upon a decree being .rimdered in any such case for an infringement. the sl1;:tll be to recover, in addition to the profits to be acCounted for by the defendant, the damages the complainl;\nt ,bas,sustained thereby; 'an'd,the Cdurtshall assess the same or cause the same to be assessed . under,its direction. And the court shall have the same power to inciI'ease such damages, in'itsdiscretion, :as is given to increase the damages'found by vel', in 'actiQnsin the of actions of trespass upon the case. " 'lflredtHck H. Betts,' for complainant. 't.LU&£en Birdaeye and Jame8 O. Gloyd, for defendant.
,CoXE,. J. ' This is a motion to the damages in, an equity RCtionfor thainfringement of a patent, under sections 4919, 4921,'Rev. 'St. The facts appear sufficiently in 12 Fed. 'Rep. 875, 32 Fee Rep. 34. Fed. Rep. 40, and ante, 301. ,The complainant baSes the application upon the long' pendency of the ,controversy, the persistent resistence of the defendant, the voluminous the large sums, in all $6,738, paid by complainant in the prosecution of the suit. It is also argued that the master's report is most ,<lonservat;ive, and it is obvious from the testimony that the complainant enormous damages, for which no compensation is given, owing to the of m&king legal proof thereof. On the other hand, ,.it ;is urged.that the delay in terminating the controversy was not attributable to, any fault of the defendant; that the propriety and wisdom of ,,the defense interposed by him is.demonstrated,by :the fact that, although the bill was based upon six patents, the complainant succeeded upon one only, and that one is now conceded to be void.' The defendant insists further that he was warranted in contesting the proceedings before the master, as shown by the fact that the complainant, though seeking to recover upon a great number of articles manufactured by the defendant, was limited by the master to a subdivision of a single variety of goods. Although the defense that the patent was void as a reissue was set up in the answer, the original patent was not put in evidence. The court,
uponthe hearing of the exceptions to the master's report, decided that the reiss.ue was.manifestly void,but that it was then too late to consider the evidence, for the reason that the defendant had been guilty of inexin t}otpresenting it to the court at an earlier day. But cusable when the court is asked to exercise an llxceptional discretion, and coms, pel the defendant to pay extraordinary damag it is surely the duty of the court to take into consideration the fact that the patent upon which the application is founded IS void, eventhough the proof which demonstrates its invalidity is then, for the first time, brought to the attention of the cou,rt,. Upon othe.r grounds, also, the motion must be denied. It is true that this litigation has been protracted, laborious, and expen.sive. It is true that complainant.'s deoree is not compensative, when compared with the'labor put forth in obtaining it. But it is thought that the defendant's course, though annoying to the complaina.lt, was not, in a legal sense, wanton, unjustifiable, or vexatiolls. There was no moment when the,defendant could with, safety have abandoned the contest, or been less active in his defense. The proceedings before the maswere aniniatedan'd complicated, but this was que more to , the nature of the COhtroversy than to the conduct of either It cann'ot be said that the defendant acted in bad taith. The issues before the ma.ster were sharply drawn.. the testimom' was evenly balanced. The defendant unquestionably.considered himself in the right, and was justified in pressing his views upon the attention of the master and the court. The mere fact that a defense is unsuccessful does not warrant the court in punishing the defendant for interposing it, If he acts fairly and honestly in resisting the demands of his adversary, he does nothing worthy 'of censure,even though 'the debatable ground is contested inch by inch. On'the contrary, where it is apparent that the defendant has been acting ,fraudulently and in bad faith; that he has heen "stubbornl.' litigious;" that his defense is without merit, and is interposed for delay, or to harass and injure the plaintiff and cause him unnecessa.ry annoyance and whel'e, in other words, the defendant's conduct is unlawful, ',unoonsciO'Ilable, and deserves punishment,-the statutory relief should be ,given. Unless the cause is one of exceptional hardship, the motion should not be granted; Zanev.Peck, 13 Fed. Rep. 475; Schwarzelv.Holenshade, .3Fish,·Pat. Oas.1l6; Brodie,'. Mining Co.,4Fish. Pat. Oas.137; Gttycm v; Serrell, 1 Blatchf. 244; Sandersv. Logan, 2 Fish. Pat.Oas. 167; Ilivingstonv. Woodworth, 15 How. .146; Peek ", Frame, 9 Blatchf. 194. The limited number of reported cases upon this subject is of itself proof of itbe care with which the courts have exercised the discretion given by the statute; The motion is denied.
M'ADAMS V. LEVERICH.
(DiB/rict Court, S.
n. New York.
SHIPPING-CHARTER-PARTY-DEFECTS IN VESSEL.
Libelants chartered. respondent's steamer to carry passengers between New York city and Bedloe's island. On delivery of the vessel, defects were found in her engines. which prevented the safe running of the boat. Libelants attempted to repair the defects, but, being unable to do so, returned the vessel, and brought this suit for damages. The defense was that the, boat was in good order when delivered, and that the defects were subsequently occasioned by libelants' engineer. Held, on the evidence, that the boat. when delivered, was 110t fit to enter safely- upon the service for which she was engaged. through defects in the engmes; that, after unsuccessfully attempting to remedy the defects, libelants were justified in returning the boat, and entitled to recover such actual legal damage as could be shown
In Admiralty. Libel for breach of charter in delivering vessel unfit for use on route specified in charter. Wilcox, Ada'flUJ & Macklin, for libelants. Fullerton & Rushmore, for respondent. BROWN, J. On the 31st of March, 1887, the/libelants, by written contract of that date, chartered from the respondent "the side-wheel steamer lona, for the season of 1887, from the 3ist day of March, or as soon thereafter as she could be got ready, for the purpose of plying between New York city and Bedloe's island, for the sum of $2,200 for the season, to be delivered to the charterers at Fishkill." By a subsequent modification it was agreed that the steamer should be delivered to the plaintiffs at Communipaw,Jersey City. She was there delivered to the libelants on Saturday, April 2d. The steamer had two compound engines, working independently, one for each wheel. On attempting to use her, it was found that the engines did not work satisfactorily. They would stop upon the center when attempting to back; and once or twice, when the boat careened, they came to a stop without signal. Twice she ran upon the dock because not properly answering the signal to stop. This irregular action occurred on the first day of her trial, after she was delivered at Jersey City, and, according to the evidence, before any changes were made in the attempt to improve her. The engineer in charge of her at that time appears to have been a competent man, accustomed to the use of componnd engines, and to handling both together. In consequence of her irregular action bnt a few trips were made on the firilt day; and, as she was considered dangerous, she was at once examined by the engineer, and by Mr. Russell, a skilled mechanic, and some changes were made in the eccentrics. It was believed that the pistons leaked throQgh wear. The springs of the rings were found loose, and were tightened; but a complete examination could 110t be made. The engineer refused to run her. believing her dangerous; and during the fortnight following two other engineers were employed. She was tried
lReported by Edward G. Benedict, Esq., of the New York bar.