BOSTON WOVEN HOSE CO. II. STAR RUBBER CO.
charge spouts from the bottom of the hopper were old, and that the only new element introduced into combination with them was the railroad tracks; but it is obvious that the railroad tracks in this combination perform no function which would not be performed by all ordinary wagon road, upon which a wagon loaded with grain could come into or along-'side the elevator building, so that its load of grain might be shoveled into the chute in the same manner as the grain from a car is shoveled or dumped into the ahute, from whence it could be elevated to the hopper of the hopper-scale, and from thence delivered by a spout into So wagon standing on a road-way on the opposite side of the building. The railroad track is a mere way upon which the car runs, as the road is the way upon which the wagons might run; and in this combination the railroad track, which allows a car loaded with grain to be run into or along-side the elevator building, and from which the grain is taken, performs no function and produces no result which it did not do when it brought the car to the elevator building, so that the grain it contained could be elevated to the hopper-scale; and thence discharged into a bin; and the railroad track, which carries the car which receives the grain from the hopper, performs no differlmt function than it does when it furnishes the way for the car which receives the grain from the bins, in anelevntOr building. Indeed, I do not see how the device covered by this paterit and claims in any essential sense differs from the ordinary grain elevator buildings located along-side of a navigable stream,' as they ,have been for many years past, with a railroad track on one: side, and the navigable stream on the other side. The tracks allow the, car to bring the grain into or along-side the elevator building; theelevating apparatus takes the grain from the cars into bins, weighing it as it is delivered into the bins; and from the bins it is run by delivery spouts into ships in the water, perhaps weighing it again in its passage' to the ship from the bins. And I cannot see that the car to be loaded, or the track on which the car stands, performs any function different' from the warehouse bins, or the ship, or a car standing on a railroad tTltck and loaded froItl bins in an elevator. The former order overruling the demurrer in these cases is set aside, the demurrer sustained, and the bills dismissed for want of equity.
BOSTON WOVEN HOSE Co. t1. STAR RUBBER CO.
(Oircuit Oourt, D. Nuw Jersey.
Iln'BIltGEMENT OF PATENTS-PUTIES.
June 19, 1889.)
, Oil bill for infringement of patents, where an individual defendant has no Interest in the machines alleged to be except as an officer of a defendan\ COTporation, and there is no evidence that he as an individual has violated any of complainant's rights, or that defendant corporation is insol'Vent, or that a decree against it would not protect complainant, the bill will be dismissed as to hiDl.
Bill for iIifringement of patent.
Livermore Fish, for complainant. Wm. B. H. Dowse, for defendants.
WAY,ES, J. The plea of the defendant, Bell, sets forth that at and before. the bringing of this suit, and before the date of the letters patent, No. 361,994, he then was, and now is, the secretary of the Star Rubber Company, and also an officer of the New York 'Voven Hose Company, he then performed and now performs and that. in such official the duties of those offices; that he personally neither owned nor owns, had or has, any interest in the machines described as "circular looms," which l;lre alleged to infringe said letters patent. either in making, selling, or using them, only in so far as he is an officer of the Star Rubber Company, or of the New York Woven Hose Company; and that all his acts in r.elation to the alleged infrinjl;ing machines have been in his official capacity as an officer of one or the other of those companies. The form of, the plea being unobjectionable, the plaintiff having set it down for argument, the facts, being well pleaded, are admitted, and the only question is as to its sufficiency. There is no evidence that the defendant c()rporation is insolvent, or that Bell, as an individual, .has violated any rights of the complainant; nor does there appear to be any just ground for believing that a decree against the Star Rubber Company alone_would not fully protect the complainant in the use of its patent, as far as that object can be obtained by the prosecution of this suit. Under these circumstances, to compel Bell to make a separate answer and defense, would only harass him, and unnecessarilyincrease the costs, without producing any substantial advantage to complainant. A decree for an injunction against the Star Rubber Company would bind' its officers and agents, without making them personally parties to the bill, and so also a decree for an account could be made fully operative without their being joined individually as defendants. Howard "t. Plow Work8, 35 Fed. Rep. 74.5. See, also, Nickel Co. v. Worthington,13 Fed. Rep. 392; Ambler v. Choteau, 107 U. S. 586,1 Sup. Ct. Rep. 556; Lewis v. Machinery Co., 21 Blatchf. 184, 19 Fed. Rep. 826. The plea is therefore sustained. Let a decree be entered dismissing the bill as to the defendant Bell.
LITH. & ENG. Co., Limited.
(OirowU Oourt, 8. D. New York. Beptember 25,1889.)
COPYRIGHT-AcTION FOR '!NFRINGEMENT-PaoOl!' OF PUBLICA.TION OJ' NOTIOB.
Rev. St. U. B. § 4962, declares that no person shall maintain an action for the infringement of his· cOPl.rlght, unless he shall give notice. thereof (in the case of a photogrlioph) by inSCrIbing upon some portion of tile face or fl;'ont of the several copies the words. "Entered according to act of congress, " etc. Held that, though compliance with this requirement. must be and proved as a prereqUisite. complainant is not required to furnish separate, distinct, and specillc proof as to each copy which he maybave published. Affidavits of those in charge of the preparation of all tj:J.e copies he h.&8 pUblished are su:tncieni to make out a prima facL6
PALE: ". GAST LITH. &: ENG.
The prima fame case thus made is not overthrown by aftldavits that defendants produced their lithograph from one of complainant's l?hotographs, mounted upon a card, without any notice of copyright, but similar lU all respects to the cards used by complainant, in the absence of any proof as to the identity of the individual from whom defendant purchased the copy.
Bill for injunction against infringement of copyright.
Isaac N. Folk, for complainant. Chas. 00, for defendant.
LACOMBE, J. The statute provides (section 4962, Rev. St.) that no person shall maintain an action for the infringement of his copyright, unless he shall give notice thereof (in the case of a photograph) by inscribing upon some portion of the face or front of the several copies published, or on the face of the substance upon which they are mounted, the words, "Entered according to act of congress," etc. Compliance with this requirement must be pleaded and proved as a prerequisite to the maintenance of complainant's action; but it would lay an unreasonable burden upon him to require separate, distinct, and specific proof as to each one of the (lopies-in some cases, perhaps, thousands in numher-""whichhe may have published. General testimony is sufficient to establish a prima facW case. Complainant has presented the affidavits of those of his employes who have had charge of the preparation of all the copies he has published, and their testimony shows compliance with the statute. The only question left for consideration is whether the case made by the defendant is sufficiently strong to break down this prima facie proof. All that appears by the answering affidavits is that defendants produced . their lithograph from one of complainant's photographs, mounted upon . a card, without the name of the subject, nor any notice of copyright, but similar in all respects to cards (or mounts) uEled by complainant. In the absence of any proof as to the identity of the individual from whom defendant purchased the copy, this evidence is not sufficient to warrant a,finding, at this stage of the case, that the particular copy was published by complainant in the condition in which defendant saw it; and to require complainant to supplement his general testimony as to the copies published by him, with specific evidence as to the one in question, would be unreasonable, in view of the fact that such copy is not produced. The motion for injunction is granted.
D. Votrgtnia. Ootober fU,1889.)
SHIPPING-AGREEMENT TO CHARTER-WARRANTY.
,Brokers tendered to Qo vessel for charter of a certain registered ton,hage; 'Defendants,.being unable to find 'the cubical oapacityof the vessel described in anl of the pUblished ratings of vessels attllat port, inquiry of the brokers, who mformed them that it was a certain amount, and defenda:\lts then agreed to accept it. A charter-party was drawn up, in which defendants inserted the represented cubical capacity, but the brokers gave notice that they had no authority to A"Uaranty cubical capacity, and it was agreed to send the charter-party to the ves:sel'8 p,gents,'wlio, onr'eceiptcfit, declined to gual'anty the capacity. Held, that no contract,as the representation made as to the capacity :w&8,liilder the circumstances, a part of the cO,ntract on the part of the C!efendants, it may have been on the part of the brokers. .
, In,Admiralty. Libel for br'eacp of contract to charter. This is ,a libel in per80nam for and expenses from , of ,an c9n fO,r the charter of., the Englisl;l, steaxpship ;Netherholm for cotton from NO,rfolk to Liverpool. BQwripg .& Archbold, ;of New tork, and Lamb &OQ., of Norfolk, were the'llbelants in upon which the lilJel ;is The leading faCts of the cQ&e seem to be, as follo'fs: On Myers, one qr,the. resPQp.dents, about 9 .o'clock A,' : memheroft4e firm of :Lamb , pq. th!1t firrn ,had in h!1nd that t,Wo ship$ ,charter, one of them being the first-class new English steamer Netl1erholm, be due on rated at 1,295 tons cltpacity tons deadweight, which he would charter . Jon. At Myers' request aqoption on ,this ship I giy.ep day.' The price was the highest ,thathad . been gi'\[en)hat Season,ap,d is about as high given in Norfolk. ,M:yera;fqup,<;l,on gpirg office thattheNetherholm was not described any of ,the in ,which the capacity, and character of . registered tonnage of is deterrnin,ed by I arbItrary of that qopot afford accurate information carrying capacity. The Neth,erholm had never been : loaded I.lrt,1ITp;folk. It resulted from these pircumstancesthat ¥yers, on g<;>jng :to office, !OUJl,<:1no, data to guide, him. to a knowledge, or safe cotij,ect1,;lre of. the actual cubical, capacity ofthe Netherholm i and he was put upon inquiry of Pl;tg'e as to per real :capacity. ,,,,:page receivEld fr-oU1 the New York house that morning a telegram stating the cubical capacity of the Netherholm to be about 141,356 feet, and communicated the fact to Myers in a personal interview at the office of Myers & Co., about 11 o'clock. Vessels differ considerably in their cubical capacity, compared with their nominal registered tonnage. Some of them have as little as 80 cubic feet to the registered ton, while others have more than a hundred. When Myers and his partner were informed that the Netherholm had a cubical capacity of 141,356 feet, which was nearly 110 ilubic feet to the ton, and which (estimating 22 feet as the cubical dimensions of a bale of cotton) made the Netherholm a vessel which would
WtLVRED 'D. MYERS.
carry five bales 1-0 the registered ton, whereas most vessels carry less,. some of. them not more than four bales to the ton, they agreed to take this ship at the unusually high price of 62s. 6d. per ton; whereupon Page returned to his office, and prepared a charter-party, which he sent to the office of Myers & Co. Later in the day Myers re· turned to his office, and found there the charter-party I which had been sent for his signature. On reading it he discovered that it contained no mention of the cubical capacity of the Netherholm. He thereupon in. serted in the paper the phrase, "Owners guaranty steamer'lC' capacity for cargo, 141,356 cubic feet," signed the charter-party, and returned it to Lamb & Co. At a conference soon held between Page and himself, Page insisted that his correspondents in New York would not guaranty tha capacity to be 141,356, and that he had stated the capacity to be about that figure. Myers then inserted the word "about" in the phrase, but afterwards erased it. Page expressed the belief that the NflIw York firm would not sign the charter with those words in, as they had not author. ized him to guaranty. !twas agreed between· them that the charter should be sent to the house in New York with the phrase in it, and also with a clause allowing the ship to receive cargo at the adjacent port of Newport News. The charter-party was sent to New York in the fonn thus described. On the hext day, the 12th October, Page received a telegram from the New York house, stating that the paper was not in proper form, and that J...amb & Co. were not authorized to guaranty cubic capacity. This was promptly shown to Myers, who at once replied that he had consented to take the vessel on the faith that her cubical capacity was what had been stated, and that their representa. tionof the capacity could not have been made for any other purpose than to enable him to determine whether to take her or not. The New York ,house also required that the charter-party should declare that the ship had sailed on the 6th'October from Mayport, England, for Halifax and Bridgewater, and should not stipulate that she was due at Norf.olk on the 1st November, as had been written in the charter. Myers refused to consent to the cancellation of the phrase guarantying the cubical capacity of the ship, and little was said of the clauses relating to Newport News, and to the ship being due at Norfolk 011 the 1st of No. vember. The New York house, Bowring & Archbold, had not in their telegram of the 12th to Lamb & Co. e1ther expressly affirmed or disaffirmed the charter-party, unless their refusal to guaranty the ship'fl cubiCal capacity was a disaffirinance. 'fhen followed attempts between Page and Myers to reach,a compromise, which were continued until the 16th October,oraJly and by letters. I do not think that negotiations materially change the character of the transaction which I have set forth. On the 16,th f Bowring & Archbold telegraphed thatthe owners of the Neth,. erholm:.deelined any compromise whatever, and insisted upon the char-' ter being carried out as verbally arranged with Lamb & Co., before the' charter was signed. This telegram was apparently intended as responsive to the last sentence of a letter from· Myers & Co. to Lamb & Co" or the 13tb"in which they had said: :.