Certainly the.circumstance that the letter is a decoy letter is quite immaterial. If a letter is put in course of transmission, with a view of having it conveyed by mail, it matters not what the motive of the sender may be. This has been repeatedly decided. U. S. v. Cottingham, 2 BIatchf. 470j U. S. v. Faye, supra; U. S. v. Matthews, 35 Fed. Rep. 890; . U. S. v. Wight, 38 Fed. Rep. 106. The conclusion reached is sanctioned by the case of U. S. v. Matthews, 35 Fed. Rep. 891. In that case the letter was a decoy letter, not mailed in the ordinary way, but placed among the letters of a mail upon a dumping table for backing and distributionj and it was held that the facts were undoubtedly competent evidence to show that the letter was intended to be conveyed by mail, and were sufficient to bring the case within the statute, if it. had not appeared that there was a question whether it was not the intention of the inspector who caused the letter to be deposited to intercept it before it would be carried and delivered to its proper address. The instructions given to the jury were correct, and the instructions refused were correctly refused. It follows that none bfthe exceptions taken on the trial were well founded, and the judgment of the district court should be affirmed.
KEEP 11. FULLER
(OITawtt Oourt, N. D. New York. July 14, 1890.)
PA'1'lINTS l!'OR INVENTIONS-INl!'RINGEMENT-PROl!'ITBo
A finding as to the profit realized in certain months from sales of a)1.ln1'rburlng article cannot be based solely on a comparison of sales during the corresponding months for the previous and following years.
Claims in letters patent for a stove grate "as a whole, when * * * constructed and combined to operate in the manner and for the purpose shown and described, " are for the entire grate, and not for an improvement on .the grate; and it being sold separately, and designed for use in many different patterns of stoves, the patentee, in case of infringement, is entitled to all the profits realized.. .
On exceptions to master's report.
N. Davenport, for complainant.
Esek Cowen, for defendants.
COXE, J. On the 20th of March, 1883, a decree was entered in this action in favor of the complainant sustaining, among others, letters pat;:. ent No. 139,583, granted to him June 3, 1873, for an improvement in stove grates. The defendants were held to be infringers, and it was referred to a master to ascertain and report the amount of profits and damages. On the 17th of June, 1889, the master filed a report in which he found that complainant's damages amounted to 6 cents, and that the defendants' profits resulting from the sale of the infringing grates from January 1,1876, to January 1, 1882, the dates fixed by the decree, ag-
KEEP ". FULLER.
gregated $11,363.54, and for this sum, with 6 cents added, judgment was awarded. The defendants thereupon filed 16 exceptions to the report, insisting that the master erred for the following reasons: ]i'irst, there was no definite evidence of the number of infringing grates sold by defendants; and, second. there was nothing to show how much of the profits received by the defendants was due to their use of the in- . vention. It is wise to remem ber at the outset that the court is not now to decide de novo the various questions presented on the accounting. The present investigation is confined simply to the question,-did the master make any mistake which requires the setting aside of his report? He stands as the representative of the court, and is better able, by far, than one who only reads the testimony from a printed book to tell what witnesses are entitled to credit, and where the truth lies in the controversy before him. His findings are prima facie correct, and the burden of showing error is upon the party who excepts. If the proof is sufficient to sustain the master's findings it is enough. The investigation terminates at this poirit, even though the court, sitting in the master's place, might, upon similar evidence, reach a different result. "The conclusions of the master, depending upon the weighing of conflicting testimony, have every reasonable presumption in their favor, and are not tobe set aside or modified unless there clearly appears to have been er-, 1'01' or mistake on his part." Tilghman v. Proctor, 125 U. S. 136, 149, 8 Sup. Ct. Rep. 894; Callaghan v. jl<lyers, 128 U. S. 617,666,9 Sup. Ct. Rep. 177; Kimberly v. Arms, 129 U. S. 512, .525,9 Sup. Ct. Rep. 355; Central T. Co. v. Texas R. Co., 32 Fed. Rep. 448; Welling v. La Bau, 34 Fed. Rep. 41, and cases cited. Tested by the rule of these cases, it cannot be said that the master's findings of Jact are erroneous, except, perhaps, in a few particplars which will be referred to hereafter. Certainly there were two sides to the controversy before him, and he wasjustified in his conclusions if he accepted as correct the evidence of the complain- ; ant. 'The latter is criticised for testifying regarding matters of which, it is said, he could have no personal knowledge, but it would seem from his long connection with the defendants, and his knowledge of the stove busil1ess generally, that he was, at least, as competent a witness as any produced on the part of the defendants. In many important particulars his evidence is corroborated. The data from which the master made up the report came from the defendants' books. The defendants did nothing to lighten his labors in this regard. Perhaps they were not called upon to do so, but, when a party is compelled to go into his adversary's camp for proof, the rules are relaxed somewhat in his favor, and presumptions are permitted which would not be permissible in other cases; especially is this true where the adverse party has it in his power to explain and fails to do so. After an examination of the testimony, the exhibits, and the carefully prepared schedule of sales, the court is not prepared to say that the report is against the weight of evidence. When considered in its entirety, it is not an extravagant but a conservativa report.
FEDER.\J.o .RJilJ?ORTER, vol. 42.
.Illll;ster finds that .between January 1 and July 1, 1879. the demade and sold 400infringing grates, realizing a profit therefrom of$348. This amount is arrived at not from statements in the books, or from direct evidenceo( any but is the result of a guess UpOn.R of sales during the corresponding months for the year before and the year after.'J;'pe testimony is insufficient to support the finding. The finding as to the number of grates sent to the branch houses at New York, Chicago, ftnd Cleveland is founded upon statements too. problematical and to be accepted as proof. The exceptions which challenge these two findings are the twelfth and the fourteenth. They are sustained. The finding as to the number of grates sold· at defendants' retail store was not excepted to. Tile remaining question is whether the facts bring the case within the rule requiring complainant to point out what portion of the profits is due. to the patented feature, or, in other words, whether the patent is for an entire device, or only for an improvement upon an existing device. ·Two of the claims are as follows: "A stove grate provided with transverse bars, which are capable of a vibratory motion in a horizontal plane, and of a semi-rotation in a vertical upon or around the center of vibration. substantially as and for the . purpose specified.. "The hereinbefore described fire grate as a Whole. when its several parts are cohstructed and combined.to operate in the manner arid for the purpose shown and described." Themaster's report contains the following statement upon this subject: "Letters patent No. 139.583 il! for a stove grate. This grate iB a complete co.mbination in itself. The parts and combinations described and claimed in the Beveral claims in thepatent constitute the entire device." The master hascarefQlly eliminated from the account aU grates which were 1501d in or with a stove,and has confined it entirely to such grates as were sold as separate and independent articles. ·The defendants questipn the novelty and utility of the invention, and seek to limit the construction to be placed upcm the claims by referencEls not now before. pourt. Such questions cannot be considered. They are merged in the decree. The court, appa,rently without much opposition from the defendants, decided the. paten,t v/illid in its entirety. as to each and all its claims,and that the defendants were infringers, having sold the identical thing covered by the patent. This decree cannoi be questioned here. ThaUhlilclaims cover the fire grate'aS a whole there, can be no doubt, and,there is a clear distinction between an improveflgrate and an im;. provement on a grate. The. complainant's grate was made and sold separately from stoves. Unquestionably it was intended for use in stoves, but so are many devices which may be the subject of distinct inventioliS. Itwas not sold fpr use in one pattern of stove alone; it could be used in many different li!toves. Although in general appearance like othe:\: grates,it is so constructed that no. part can be used upon any other grate, and no part of other grates call be used upon it. Remove