RAPP 11.' KELLING.
(C'lrcuit Court, S. D. Ni?W York. February 97, 1890.)
. Agrant. of the exclusive right to and sell a patented article dut tlie Unite4 States for the full term 01 the patent is to be treated as an aSSIgn·tnetlt;,enabling the assignee to bring suit in his own name against the patentee for , infrblgement., .' . to SAlIB-AOTION FOB INll'RINGBHBNT-J'muSI)lQ'l'ION. The circuit courts have jurisdiction 01 sUch a suit, as arising under the laws of thl! IJnited States, even though one, issue in the ease is whether the grant is still In
, ;' 1
Ih.Eql1ity. ,On motion for preliminary injunction. Suit by John W. Rapp against Max Kelling for infringement ofletters patent ·No. 416,265, issued to defendant, Kelling, December 3, 1889, for improvement in fire-proof doors. Defendant had granted to plaintiff the exclusive right to make, use, and sell doors embodying such improvement for the full term of the patent. JihJnc£BForbea, for complainant· .A; Britto'll Havens, for defendant. .
WALLACE, J. It seems quite ,plain in this case that the complainant is.notalicensee of the defendant, but that the instrument by which the defendant transfei'redto him the sole and exclusive right to make, use, and sell the subject of the patent throughout the United States is to be treated as an assignment; Even ifthe instrument did not vest the complainantwith the legal title of the ,patent, it enables him to maintain a suit in his own name against the patentee for an infringement. Littlefield v. Perry,21 Wall. 205; Gaykrv. Wilder, 10 Row. 477. The bill is in the ordinary form of, one brought by' the owner of a patent against an infringer, for an injunction and an accounting. The case which it makes differs from ordinary actions· for infringement only in the fact that the defendant is. the person to whom the patent was originally granted. The bill, therefore, presents a controversy of which this court has jurisdiction, aIld, even though one issue which may be raised in the case is whether the gratit is stilJ.inforce, that circumstance does not pervent the controversy from being one arising under :the laws of the United States. But. although the complainant may have failed to comply with some of the terms of thl'l agreement by which his interest in the patent was ae- , quired,his failure to perform them does not wmk a forfeiture of the grant,and the only remedy of the defendant is an:action for damages for breach of contract. Hartshorn v. Day, 19 How. 211; Mackaye v. MaUory, 12 Fed. Rep. 828. If the complainant has refused to comply with the .eonditionsof the contrae-C; :on his part, and without 8ufficientreason' insists upon ignoring them, the court should not assist him by a preliminary injunction in enforcing rights which at a final hearing it may be constrained to protect. A party cannot ask the court for any extraordinary assistance preliminary to a final decree, if he does not come into court proposing to deal fairly with his opponent.
NORTHWEST 'TRANSP. CO. V. BOSTON MARINE INS. 00.
The only question in the case is whether the complainant should be denied a preliminary injunction because he has violated the agreement under which he acquired the exclusive right to the monopoly of the patent. As this question has not been argued, counsel will he heard upon it at the time to which the motion was continued.
NORTHWEST TRANSP.CO. f1. BOSTON
(Circuit Court, E. D. MicMgan. February 20,1890.)
:MARINE INSURANCE-CAUSE OF
Loss. Where a stranded vessel is voluntarily scuttled to save her from a storm which began several hours after she strande(,i, the proximate cause of the loss arising from such scuttling is the storm, and not the stranding.
A vessel which was going ina fog at an immoderate, rate ot speed was stranded because the master changed her course two minutes before the vessel would have reached the proper place for turning, he supposing that she had reached such point. HeLd, that the stranding was not caused by the negligent rate of speed.
On appeal from district court.
37 Fed. Rep. 220.
J' ACKSON, J'. The material facts of tbis, case, on which the questions oflaw arise and the rights of the parties depend, are the following: The steam-propeller Ont8.rio, owned by the libelant and valued at $55,000, was in May, 1883, insured againsttotalloss and general average, only to the limit of$49,500, in fire insurance companies, one of said fire compa.nies being the respondent, whose policy was for the sum of$17 ,5QO inEj,urance upon the body, tackle, apparel, and other furniture of said propeller. In the body of the policy the adventures and perils which the respondent undertook to bear and take upon itself were those "of the lltkes,',rivers, canals, fires" jettisons," that should come to the damage of said vessel orany. part thereof. It also contained the following exception to the generalliability of the respondent or insurer: "Excepting all perils, losses, or expenses consequent upon, or arising from, or caused by, the following or ,other legally excepted causes: Damages that may be done by the vessel hereby insured to any other vessel or property; incompetency of the master or insufficiency ,of the orew, or want of ordinary care and skill in navigating said vessel, and in loading, stowing, and securing the cargo of sail! vessel; rottenness, inherent defects, unloading, and all other unseaworthiness; theft, barratry, or robbery." Indorsed upon thepolioy was the following: "This policy is fliee from any loss caused by or in oonsequenoe of fire, and covers against total loss .and general average only." On October 11, 1883, while said policy was in full force, the the propeller, laden with a large cargo of miscellaneous merchandise, left the port of Sarnia, Ontario, bound for Duluth. She was in all respects properly oflicered, manned, and equipped. She had an amplysuffi-