DUNBARtI. ESTABROOK. way. That Mr. Bent did not corrugate his nail, arid that the patented nail has gone into extensive use, are facts which seem to point to both novelty and utility; and the patent is primajacitr'evidence of both. Judge S'hepley held the Estabrook patent to be valid, though of limited application, notwithstanding earlier nails, which, separately considered, contained his improvements. The value of the serrations or corrugations appears to be very marked in this nail, when intended for a shoe nail; and, upon the whole, I do not find it to be proved that this mode of construction was so well known, as applied to cut nails, that I can hold it to have been an obvious alternative mode of making the "Bent" nail. With regard to patent No. 164,889, the only question affecting its validity is whether the discovery was made by Whidden, or was communicated to him by the plaintiff Dunbar. On this point I have examined the evidence; and do not think that the defence is made out. Whether the "cub" nail infringes, depends on whether it works in substantially the same way to produce a like result. Neither the head nor the body of this nail is precisely like that of 90,902. It does not begin to taper so soon, and its from head and point are both shaped somewhat those described in the patents. I think, however, that the evidence shows it to be similar in operation and result. Decree for the complainants.
DUNBAR and others tI. ESTABROOK: and others.
(Oircuit OO'Ulrt, D. Ma88aehusett,. - - , 1880.)
90,902 AND 164,889, for improved cut shoe nails, A4d valid, and infringed by the" cub" nail. Estabrook v. DUnbwr. 106 G. 909, explained.
In Equity. LOWELL, C. J. In this motion for a preliminary injunction the recent case of Dunbar v.1'he Albert Field Tack Comv.4,no.6-35
pany, ante, 543, has been reargued, as has also that case itself
by written briefs, and this opinion will serve for both cases. In that case I decided that Whidden's patents for improved cut shoe nails, No. 90,902 and No. 164,889, were valid, and were infringed by the nail now before me, called the "cub" nail. The defendants act under the Estabrook patent for an improved screw-peg for shoes, which was decided by Judge Shepley to be valid upon the construction which he gave it, construing the invention somewhat narrowly in order to preserve the patent, but holding that it did not cover the plaintiff's patented cut shoe nails. Estabrook has not confined his manufacture wholly to the nails which he patented, but ·has made, besides t;llOse, one which was an admitted infringement of Whidden, and one other which I decided to be so. This he did, hoping that Whidden's patents would be declared void. Both questions have been reargued: whether the Whidden patents are valid, and whether the "cub" nail infringes them. A considerable part of the argument and of the affidavits relies on a snpposed opinion of Judge Shepley in the case already mentioned, in which the parties were reversed, (EstalYrook "y. Dunbar, 10 O. G. 909, 910;) the defendants fearing that I may have overlooked Judge Shepley's expressions on this8ubject, and more particularly what he said about the Field nail. He there said that the nail of Whidden (now the plaintiffs' nail) was "scarcely distinguishable, except in form, from the Field nail, so called, and other tapering and corrugated nails which were in common use. So far as the defendants' (now plaintiffs') nail differs in form from nails which were old, it is merely an attempt to improve upon the form of the old corrugated tapering cut shoe nail." These remarks are said to have guided the defendants in assnming that Whidden had merely "attempted" an improvement on the Field nail, and in acting accordingly. No one has a higher estimate than I have of the value of Judge Shepley's opinion. Upon such a question of fact, involving mechanics, I consider it much better than my own. But the remark is obvious that in that case he had no occa·
DUNBAR V. RBTABROOK.
sion to institute a comparison between Whidden's Mil and those whicH preceded it. I do not believe he intended to express anything more than a present impression, if so much. He was deciding the differences between Estabrook and Whidden, and not those between Whidden and Field or Bent. Judge Shepley, I am sure, would have been much surprised to learn that he was supposed, in deciding one case, to have decided a wholly different one. He said, in passing, that the plaintiffs' nail was much like the Field and other nails, as it was; and most particularly it was very much indeed like the Bent nail,-much more than it was like the Field nail. I compared it with the Bent nail for that reason. It is my habit to deal specially with the part of the case which seems to me the most difficult. When I found that the Bent nail was not, on the whole, an anticipation of Whidden, it foUowed, in my opinion of the relative importance of those two nails to the issue, that the Field nail was no answer to Whidden's patents. Such was and is my opinion. I do not consider that the Field nail, made in brass, would be a successful shoe nail. It differs at both ends from the Whidden, in important particulars. No doubt the differences in all these nails are somewhat minute, and there is difficulty in sustaining any of the patents; but, for the reasons given in the former case, judging the nails by their work, there appears to me to be novelty enough to save the Whidden patents. It was not the Field nail that caused my hesitation. I likewise continue to think that the cub nail infringes the patents of the plaintiffs. The defendants maintain that the cub is an improvement upon Estabrook, and in a different line of invention, according to Judge Shepley's views, from Whidden's. I do not understand those views exactly as th6 defendants do. Judge Shepley saved the Estabrook patent, as I understand his decision, by distinguishing his nail from the earlier imported sprig in three particulars, of which two are that Estabrook's patented nail is without a head, and that it has a regular screw thread. He also twice speaks of the Estabrook nail as made of wire. In these three respects Whidden differed from Estabrook, and therefore did not in-
f;ringe his patent. In the l;laIl?-e respects the cub resembles Whidden, and therefore dO(:lsip.fl1inge his patents. The cub nail may be an improvement on both Estabrook and Whidden, for it has the round body of the former, as well as the abovementioned features of the latter; but its point of departure does not seem to me to be a headless wire screw peg, 80 much as a cut corrugated nail with a head. Injunction granted.
THE STEA.M-SHIP PENNSYLVANIA.-
(Oircuit Oourt, E. D. PennsylfJania. October 28, 1880.)
SAME-DATE AT WHICH Loss IS TO BE ESTIMATED-OFFER TO DELIVER-REFUSAL TO ACCEPT.-After libel filed, the notice from the shipper was withdrawn, and the master of the vessel offered to deliver the goods, and requested a discontinuance of the suit. The holder of the bill of lading replied that he would accept the goods at the then market price, if the vessel would pay the loss to that time. Subsequently the goods were delivered without prejudice. Held, that the measure of damage was the fall in value to the date of actual delivery, and not to the date of the offer to deliver.
Appeal from decree of district court.
-Reported by Frank P. Prichard, Esq., of the Philadelphia bar.