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BRUNGGER 11. SMITH.
Oourt, D. Massachusetts.
January 6, 1892.)
The of privileged communications does not apply to testimony of a soUc> itor of patents who is not an attorney at law.
, Asoli9itor qf patents, who is not an atto,rney at law, is not privileged from testi.. fying under Rev. St. § 4908, Which provided that a witness on the trial of an interferenell' need not !'disclose any secret invention or discovery made or owned by himself. " , , ·
WITNESS-REFUSAL TO TESTIFy-ATTACHMENT.
P ATENTB. .
In the case of the refusal to testify of a witness subpoonaed ali the trial of an in,terference, the remedy is by petition for an attachment for contempt, and not for an order. to compel the witness to answer the questions put to him.
At Law. Petition of Herman Brungger for ani order of court directing the witness, Charles F.BroWllj to answer certain questions put to such witness
BRUNGGER V. SMITH.
on the trial of the interference No. 14,195, between the applications Nos. 349,621,.349,622, and 349,623, of Herman Brungger, filed April 26, 1890, and the application No. 307,277, of Sidney Smith, filed March 7, 1889. Brown refused to answer the questions put to him on. the ground that the facts and matter inquired about were privileged as communications OElhveen client and counae!. In the answer to the petition it was alleged: . "First.:That said Brown is a solicitor of patents in good standing, and recognized as such by the commissioner of patents, and acts in a professional capacity when employed as such solicitor by claimants and applicants for patents before the United States patent-office. His relations to his client are same aa those between a regular practitioner before the courts and his client, inasmuch as the nature of his employment requires professional skill, integrity, and secrecy; and he is therefore privileged from disclosing any professional matters, or conversations within the scope of employment. Second; That said witness, acting in a profes,!ional call1J.city. as solicitor of patents, employed by Sidney Smith, the party to this interference. as such, cannot be compelled to disclose any secret invention wherein his client is protected by Rev. St. U. S. § 4908. Third. That this respondent has not waived, or in any manner has he intended to waive, his privilege herein, as alleged by the counsel for Brungger. Fourth. This respondent deniesthat said questions are material in this case, or proper rebuttal, oiitcllarges and says that the examination of this witness is for the sole purpose ofpr9bing into the contents of a certain application for patent of this .respondent now pending, not in this interference, and in which said witness is the solicitor, attorney, and legal adviser. Fifth. The very nature or character or scope of the question which the witness refllsed to answer is within. thl'lilUle of privileged communications, thoug,h it calls for a fact. ..
H. '1'. Munson, for petiti6n:er. R. A. Sprague, opposed.
Judge. The doctrine of privileged communication is <1on£lned to cases of counsel, solicitor, and attorney. The witness in present case testifies that he is not an attorney at law; and therefore, under well-settled rules, he cannotinvoke this privilege. This ,,'itness is not privileged from answering uhder the last paragraph of section 4908, Rev. St., beca.J.lse he does not come within the description therein set forth. The proper form of appLication to enforce obedience to a subpcena issued under section 4906, Rev. St., is a petition for an attachment for c6ntempt. Upon the pleadings, as here presented, the court will not· enter a formal order. The motion and answer in this case disclose to the court the existing facts on the examination of the witness before a of this court, and this resqript will inform the parties and the witlnei3S as to the views of the court upon the questions presented.
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;BOl'iDIl-AcTIONS"';'MEASlJRI! OJ!' DAMA(JES-PENALTT.
Plaintiff conveyed property to a trustee for defendant as part of a bonus to aid in the construction of a cable road of which defendant was a promoter, and took from .it _pond in a penalty eg"alto the value of the land conditioned for the COnstruction of the road. ' The road was not constructed, and plaintiff sued on the bond. Held, that he was entitled to reCOver the whole of the penalty, as the value of the property is a, proper measur.e of damages for the breach of the contract in cj)D.siderlition of w;hichitwasconveyed.
,Where tbe deed was duly delivered' to such trustee, and purported to vest the , 'title unconditionally, parol evidence is not admissible to show that It was delivered in ellcrow, and was not to take effect unlessdefendantseoured an additional bonus, butwas to be l'eturned,toplainti1f, and, the bond thereupon, to be void,if the road was not constructed on account of ,failure to s!lcure sucll adc'litional bonus. 8. Bom>&""AoTIONS-EvIDENOE-HARMLBs$ EBIWR. , The admission of evidence on the part of plainti1f thllt the land was conveyed in cODsideration of the bond, and for no' other consideration, Is without prejUdice to defendant, since it lnno mannervariea :the terms of the tl'anB4Ction as they appear on the face of the bon!L ON Although the damages allowed were measured by the am,ount of the penalty, they must be considered as unliqUidated until fi"ed by the and hence pblinti1f was not entitled to interest either :trom the date of the breach of the condition,orfrom the commencement of the action; especially as the land was unimproved and yielding no income.
At Law. Action by Edward Blewett against the Front-Street Cable Railway Company. A jury was waived, and the tljal was by the court. Burke, Shepard cfc Woods, for plaintiff. .. J. a. Haines, for defendant.
District Judge. This is an action at law to recover dama penal bond containing the following recital and conditions:
II The of the foregoing obligation is such that whereas, the said Edwlll'd Blewett has granted and conveyed to Jacob Furth, assignee [trustee] of the said Front-Street Cable Railway Company, the following described property, ... ... ... as a part of a bonus given to secure the building of a cable road hereinafter mentioned: NoW, therefore, if the North ::;eattleCable Railway Company, a corporation organized and existing under the laws of the state of Washington, its suoopssors and. assigns, Shllll, within ten (10) months from the date of these pl'esents, construct, ready for operation, a double-track cable railway Qf the same gllUge as the railway of the said Front-Stl'eet Cable Hailway Coml'any. and operate cars both. ways thereon, frOID the present terminus of the'said Fron't·Strept Cable Railway ... ... ... to a point near the outlet of Lake Union, in the Denny & Hoyt addition to Seattle, flhen this obligation shall be void; otherwise to be and remain in full force and virtue."
The defendant admits the execution of the bond, and admits the breach of it. The only controversy is as to the amount of damages recoverable. Plaintiff alleges in his complaint that the property described in the bond was in fact conveyed to the trustee named by valid deeds