patent. In the' first claim it is one of the specified constituents of that combination, but it is omitted from the second claim. Certainly, then, itis not to be lightly imported by implication into the claim. Presumably it was purposely omitted; In fact, the lifting-lever, G, is neither a neceASarynor a. proper element of the combination in question, for the declared end thereby to be accomplished is this: "Whereby the weight of the finger-bar is partly sustained,and its outer end counterbalanced when the machine is in operation, substantially as herein set forth." But the lifting-lever, G, does notc:lo-operate to produce this result. In truth, it is out of action when the machine is in operation. Its function is to throw up the finger-bar when the machine is not operating, and when the lifting-lever, G, is used the spring ceases to act. The argument that the third claim is for an inoperative combination, because it on'!itsto specify the hinge-bar and means for 'securing the chain, is not convincing,as the claim clearly has reference to a mowingmachine'asdescribed and illustrated in the specification and drawings. '.' In respect, to the alleged prior use in machines manufactured by C. M. Russell & Co. at Massillon, Ohio"it is sufficient for me to say that the evidence, taken altogether, shows, at the utmost, only an unsuccessful and abandoned experimental use. 2. In the use of a spring-supported finger-bar of great length, constructed under the patent of 1880, a practical difficulty was encountered from the springirigand moving upward of the finger-bar in the middle by its own unsupported weight, and that of the cutter-bar mounted thereon, so that the cutter-bar would bend downward at the outer end, and not work freely in .jtil guards or ways. As the result of study and experi.ment, the patentee obviated this difficulty by the invention covered by the patent of May 6, 1884, which consists in making the finger-bar with a downward curvature in the middle, in the manner explained in the specification, sO that the finger-bar, when sustained aUhA inner end and ready for action, will be practically straight. The defendants contend that the patent does not disclose a patentable invention, but to that proposition I am not ready to assent. . The problem which confronted the patentee was to so construct the fi·nger-bar as to make it lie straight upon the when sustained from its inner end; and he solved it by simpIe means, it may be, but successfully, and with highly beneficial results. The problem was new, and its successful solution was not obvious. The illleged:prior use of this invention by the defendant William Deering & Co., at PUmo, Ill., is not established by evidence satisfactory to .me. Nothing of this kind was asserted at the preliminary hearing, although such use of it, if it was as now claimed, must have been then known to Deering and Steward, whose affidavits' were read at that hearing. Moreover; the exhibit "Plano, Cutter-Bar," prod uced in support of this branch of the defense, is discredited by the testimony of Mr. Gill, a witness for the defense, who states that it undoubtedly had met with "an aCc:lident,' which' accounted for its condition in respect to curvature. The testimony ofLewis Miller as to prior use by his firms is not only
NATIONAL AUTOMATIC DEVICJl) CO. !I. LLOYD.
unsupported by the production of any specimen of the alleged manufacture, or otherwise, but is successfully rebutted by tqe testimony of the workmen at the shops. Upon the whole, I am of the opinion that, as respects the second and third claims of the patent of 1880, and the first, second, and third claims of the patent of 1884, the plaintiffs are entitled to a decree against the defendants.
NATIONAL AUTOMATIO DEVICE
(Circuit Court, N. D. IllintYl8. September 23, 1889.)
PATENTS FOR INVENTIONS-UTILITY-GilIBLING DEVICES.
The onl, use to which tlle invention described in letters patent No. 410,981,\ granted September 10,1889, to Fred. N. for a "Toy Automatic Race-Course, has been put, being for gambling purposes, It is not a useful invention, within the meaning of tlle patent laws of the United States.
In Equity. On motion for injunction pendente lite. Selden Fish and Banning, Banning & Payson, for complainant. W.O. Hoyer, H. D. Paul, B. M. Shaffner, and George Burry, for defendants.
BLODGETT, J. Complainant moves for an injunction pendente lite in this case. The bill charges the infringement of patent No. 410,981, Lang, ou the 10th day of September, 1889, for a granted to Fred. "Toy Automatk.: Race-Course," and contains the usual prayer for an injunction and accounting. The device covered by the patent is a shaft projecting upwards from the center of the base of a circular shell or case, froIn, 15 to 18 inches in diameter, to which shaft a clock-work mechlmism is 80 geared that it can be made to revolve rapidly by releasing the escapement of the clock-work. On this shaft are mounted two or more radial arms, to the ends of which are attached small toy figures of horses. These radial arms are attached to the shaft by separate collars so loose that they turn easily on the shaft. The clockwork eBqapement is released by dropping a nickel coin through & slot in the machine, whereupon the shaft commences to revolve rapidly, carrying the radial arms with it,but, after a certain number of revolutions, the force of the clock-work is cut-off, and the radial arms continue to revolve, from the '1Iwmentum they have obtained while the clockwork was going, until such arms finally stop from friction and the resistance of the air. Several objections are urged against the motion for an injunction, such as that the bill is multifarious, etc., which I do not deem it necessary to consider, as it seems to me there is sufficient reason on another ground for withholding the injunction. The proof shows that the only use to which complainant's, or, for that matter, the defendants', machines, have been so far applied, is to place them in saloons, bar-rooms, and other drinkillg places, where the
frequeiiters!of such places ma.kewagers as to which of the toy horses "'ill stop'first,or which Will stop nearest to a designated point, after the machine has been put in motion, by dropping a nickel in the slotj inothefwqrds; the machine hi question is only used for gambling purposeS. The law of the United States only authorizes the issue of a patent f6r a new and useful inventioD! and in an early case on that subject (Bedford v. Hunt, 1 Mason, 302) it was held that the word, "useful," as used in this statute, means such an invention as may be applied to some beneficial use in society, in contradistinction to an invention which is injurious to the morals, health, or good order of society, and the principle thus enunciated has been uniformly applied ever since.. It is urged that this machine is susceptible" of being utilized as a toy, or child's plaything; but" it is a sufficient answer to this suggestion that no such use has been as yet made. The patent has been very recently issued, and it isj>Qssil;llethat a useful may yet be found for it; but as the tIle only use ,to which the invention has been put being for gambling purposes, I'must hold that it is not a useful device, within the meaning of the patent law, as its use so far has been only pernicious and hurtful. Ip.juliction refused.
DIXON ". THE SURREY.
Oourt, SOlD. New York. January 9, 1889.)
Where a bili of lading llrovldesthat the consIgnee is 'bound to be ready to receive his gOods onshlP's readinesl! to discharg'ejotherwise that: they may be landed with· : ;out risk, aftl!r they deck: of tbe Sbill · 8'p.d the consignee , is not ready to receive' on shIp's reajIlness to discharge, the shIp may land the goods; wltbout nQtice; and 'if landed in lIuitable weather, with opportunity to remove them without the vessel Is, absolved froIlJ, all further liability. Reversing 26 Fed. Rep. 791. " ' ,
In On appeal froin district 26 Fed. Rep. Libel to recover damages to green fruit through' the alleged improper discharge steam-Ship Surrey'tjn the 24th"of January, 1885, in frostyweatlier.' New proofs disClosed the fact that the fruit was discharged oriSaturday, January 24:, 1'885, instead of' Monday; January 2l3th,asfouiid by the court bel()Vv,' and that the weather until late Mon.· day so:Mld as to injure the fruit.' TheNH of lading provided that, "simultaileonsly with the ship's being ready to unload the above· or' any part the consignee, of said' goods' is herebybouna·to be ready to receive the same from the ship's side * * * on the wharf at which t4eship may lie for discharge, * *' * and,in default,thereof, the master or agent of the ship * * * are authorized to enter tlie said goods at the custom-house; and land * * *
Ta:Jll ;BOSKENNA; BAY.
them, * * * without notice to, and at tl:;te risk and expense of, the said consignee of the goods, after they the deck·of the ship." The evidence showed that the consignee had no notice of time and place of discharge, and was not ready to receive on ship's readiness to dischargeithllUhe master thereupon landed the fruit on the wharf, 'lhere it was destroyed by frost on the night of January 26th; and that other consignees removed their fruit on the 26th without injury. Hyland &; Zabriskie, for libelants. E.B. Conver8, for claimants·
. LACOMBE, J., (after 8tating thefactB as above.) The additional evidence introduced in this court clearly shows that the fruit was discharged, not on Mpnday, January 26th, as the learned district judge assumed, but on Saturday, the 24th. It is also clear from the testimony that it was not until well into the afternoon on Monday that the weather became such as 'to expose the goods to destruction from frosti and that, if removed any time before 4 P. M. of that day, they WQuld have been found uninjured. I am unilble, therefore, to concur in the conclusion that the goods were landed at an improper place or time, nor so as negligently to expose them to obvious peril of destruction. The decree of the district court is reversed, and judgment ordered for the ship on both original and cross libel, with costs of both courts.
THE BOSKENNA BAY. ROLFE 11. THE BOSKENNA BAY.
(Circutt COWI't, 8. D. New York.
October 7, 1889.)
SHIPPING-CARRIAGE 011' GoODs-BILL 011' LADING-STIPULATION-SUUBTITUTBD LIVERY.
The olause in a bill of lading, providing that the consignee is bound to be ready to receive his cargo on ship's readiness to discharge, and, in defaUlt, that the master may'land it upon the wharf where the ship lies for discharge, without notice, and at consignee's risk, construed as authorizing a discharge without notice, but not as .relieving the ship from the duty of exercising reasonable care to protect the goods as long as they are, or ought to be, under the control of the master, is a reasonable and valid stipUlation, and, where the consignee is not ready to receive, authorizes a substituted detivel'y of green fruit, in cold weather, by landing the same upon the wharf, at his risk, provided that, if present, he could have removed it without injnry. Reversing 22 Fed. Rep. 662.
be ready to receive the goods at the'time and place they are deliverable; and, in de-
2. SAME-BURDEN 011' DILIGENOIl1 ON CONSIGNEE-WAIVER Oll NOTIOE.
Under such provision, the consignee is bound to watch for the ship's arrival, and
fault, tbe ship may land tbe cargo without previousnot1ce.
In. On appeal from district court. 22 Fed. Rep. 662. Libel to recover damages to fruit, through its alleged improper discharge steam-ship Boskenna Bay on March 21, 1883, and exposura to, frost.
Franklin Bartlett, for libelant. E. Oonver8;for olaimants.
The libelant sues to recover damages for injury to a fruit. The fruit was injured by its exposure to frost, after nightfall, and during the night of March 21, 1883, while remaining in an inclosed pier, No. 44, North river. It was part of a cargo shipped at Palermo to various consignees at New York, by the steamer Boskenna Bay, under bills of lading, which provided for a delivery in good order to the consignee or assigns, "from the ship's deck, where the ship's responsibility shall cease." The bills of lading also contained this condition: "Simultaneously with the ship being ready to unload the above-mentioned goods, or any part thereof, the consignee of said goods is hereby bound to be ready to receive the same from the Ship's side, either on the whal"f or quay at which the ship may lie for discharge, or into lighters provided with a sufficient number of men to receive and stow the said goods therein; and, in default thereof. the master or agent of the ship, and the collector of the port, are authorized to enter the said goods at the custom-house, and land, warehouse, or place them in a lighter, without notice to, and at the risk and expense of, the consignees of said goods after they leave the deck of the ship." The steamerarrived at the port of New York, March 18th, was berthed at pier 44, March 19th, made preparations to March 20th, but, owing to the coldness of the weather, deferred di.scharging the fruit until March 21st, on which day, the weather being sufficiently mild, she commenced to discharge in the forenoon, and continued till about 5 o'clock in the afternoon. The libelant was not formally notified by the ship's agent or master of the intended time and place of discharge, but he knew of her arrival, and on March 20th made entry of his fruit at the customhouse, and obtained a permit for its removal from the dock, and on the morning of March 21st he paid the freight on his consignment, and received his delivery order. In landing the cargo the several consignments were separated, each lot being placed by itself. A number of the owners ofdifferElIitconsignments were present, but the libelant was not present. The building .in which the fruit was left was a safe place, but was not sufficiently warm to protect. the fruit from the weather at freezing temperature, and the fruit was placed in proper custody. None of the various consignees who were present removed their fruit, but all that was landed from the ship, inCluding the fruit of the libelant, was allowed to remain in the building until the next day, without any special protection against frost. Succinctly stated, the facts are that the cargo was landed at a suitable place for temporary purposes, and at reasonable hours,and in weather suitable at the time, and if the libelant had been present he could have examined and removed his fruit before any risk from cold weather attached; but the state of the weather was such as to denote risk of injury to the fruit from frost if it was suffered to remain overnight at the place where it was left. Upon these facts tbe case turns wholly upon the effect which should be attributed to the special conditions of the bill of lading. That instruWALLACE,
THE BOSKENlU BAY.
ment was the contract between the patties, and its provisions, so far as they are valid, conclude the libelant. Were it not for these spp.cial conditions, liability of the ship to answer for the loss would be unquestionable. The duty of a carrier by water towards an owner of goods is not satisfied until a proper delivery has been made to the owner; and, unless a valid substituted delivery has been made, the strict responsibility of the carrier as an insurer of the goods does not terminate until actual delivery. If he does not deliver to the consignee actually, he must justify his substituted delivery by sh()wing that it was in accordance with the terms of the particular contract, or with the usage of the port, or with the ,course of business between the parties. On the other hand, the consignee is bound to watch for the arrival of the shi p, and be ready to receive the goods at the time and place at which they are deliverable. If the consignee refuses or neglects to accept the goods, the carrier must, if practicable, give notice to him of the time of the intended discharge; and, when this has been done, and the goods are discharged in a usual and proper place, and at the proper time, the substituted delivery stands in the place of an actual delivery. These are familiar rules of the law of carrier and consignee. No notice was given in the present case, and, except forthe speoial clauses of the contract, the discharge of the goods as made would not have been a delivery. The special conditions are plainly intended to relieve the carrier of any obligation, either to make actual delivery of the goods to the consignee, or to give him notice of the time or place of their intended discharge. As they are explicit, they preclude resort to any usage to define the rights and duties of the parties. Neither the condition for delivery "from the ship's deck, where the ship's responsibility shall cease,." nor the condition whereby the consignee is to receive the goods "simultaneously with the ship's being ready to unload," absolves the carrier from the duty of making a proper delivery, actual or substituted; and it would, nevertheless, be incumbent upon the carrier to give due and reasonable notice of the time of intended delivery, and put the goods in a suitable place, under proper care and custody, to constitute a good delivery in the absence of the consignee. The Sanfee,7 Blatchf. 180; The Middlesex, 21 Law Rep. 14; GleadeU v. Thomson, 56 N. Y. 194; TarbeU v. Shipping Co., 110 N. Y. 170, 17 N. E. Rep. 721. But the furtfier clauses by which it is conditioned that, in case the consignee is not ready to receive the goods when the ship is ready to unload, the master or agent of the ship may land the goods at the wharf Where the ship lies to discharge, without notice to the consignee, and at the risk of the consignee after the goods leave the deck of the ship, have no significance whatever, unless they mean that the consignee is not to be entitled to notice of discharge of the goods, and that they are to be at his risk; when landed at the place specified, if he is not ready to receive them when the ship is ready to unloa.d. Unless the clause dispensing with notice to the consignee is intended to permit the carrier to make a substituted delivery in place of an actual one, without previous noticEt to the consignee, it is wholly inoperative, because notice of landing or warehousing goods, or that the ship is ready to discharge, is unneces-