190

FEDERAL' REJlORTER,

vol. 50.

'tidnfol'ti6wtrial is utged upon' the ground that the court erred in charging the jury., The tenth instruction given to the jury is as ,«riO) Theevidence'tendii to show that the fireman, Riggs, who was with engine, couldseElplaintifr at work on the car, Bnd that he did, eeehim fot some distance, ,and in' ,ample time toha'Vejnformed the engi,neel';, was,Wit})in about one car-length oUhe sta1ld,iJ;lgcars. and that he thell.,called out' W,hoal' ,to the engineer, who re,vel'll,8d,'bis engiJ;le, and, nearly stopped the tram, ,when the switchman, who dId n6tseeplaintlff. to, mov60n, when he again put on steam, ahd' moved up against the standing car,' thuscausihg the injury. If you fltJd tbese facts, ,the court instrllcts you that It was the duty of the fireman to notify the engineer that there was a man 011 the side of the car and in danger, and to give such notice ill time to enable the engineer to avoid the collision; and, if so notified, it would have been the duty of the engineer to disregard the signal of the switchman to move on. In such a case he would be bound to presume that the signal had been given in ignorance of the danger. and he would be bound to ,act upon his knowledge of the danger, upon any information he had received from the fireman, or from any other 80urce, that there wlloS8man in danger."

W. A. Foster and John J. Mullaney, for plaintiff. Hubbard ct Clark, for defendant.
McCRARY, Circuit Judge. I am inclined to the opinion that the tenth instruction given to the jury was erroneous; in that it did not leave it for thejury to say;Whether, under the circumstances, it was the duty of the fireman (Riggs) to have given to the engineer more definite and explicit warning concerning the plaintiff's peril. It is doubtful whether the circumstances of this case bring it within the rule that, the facts being established, the court may determine the question of negligence as a questionot' law. It probably belongs to that other class in which, although the facts be undisputed, different minds might honestly draw difl'erent conclusions therefrom; and, if so, the question is for the jury. As the verdict is for less than $5,000, and therefore a judgment rendered thereon could not be reviewed upon writ of error by the supreme court. I am constrained to resolve my doubts in favor of a new trial. The motion is sustained. Railroad 00. v. McElwee, 67Pa. St. 315; Railroad 00. v. Sto1£t,17 WalI; 659; Railroad 00. v. Van Steinberg, 17 Mich. 99;

GilleH[J'i.6 v. Oity of Newburgh, 54 N. Y. 468; Oity oj Rockford v. HiJ,(U. brand, 61 Ill. 155.

FLOWER (Circuit Court,

v.

GREENEBAUM.

l!V. D. lZT.inoiB.

June, 1880.)

B.lNXBUPTOY.....COHPOSITION-SEOUBED DEBTS.

At a melltinll' of oreditors to effeot aoomposition in bankruptcy. plalntUf. owning notes seoured and unseoured, voted for the settlement on the latter. and did not vote on the former, and the seourities were not in any way considered: subsequently he, ponverted them into money, but they proved insuffioient to pay the debt. Held that, if the debtor desired to have the composition operate upon the secured

:FLOWER tl. GREENEBAUH.

.191

notes, it was bis duty to bave the securities valued, and fautng, to do so be was liable for the same percentage of the deficiency'llo8 was paid tO'the unaeoured cred·
itors.

At, Law. Action on, two promissory notes by James M. Flower, reof the Henry Greenebaum. Jtidgmentforplaintiff. )ror prior 'report, see 2 Fed. Rep. 897. "This suit Was brought upon two promissory notes, given by defendant to the, German National of Chicago, the first being for the sum of ,$25,000, datlld Novembe,r 13, 1877, and, payablll, with iotllrest, at 8 pel' .cent. ,60 after date; the ,other for the BUm of $15,000, dated NQvember 17,1877, payable,with in,terest, at 10 per cent., ,in 60 days after, date. 'Both notes were secured by collaterals, which had been converted into money by the plailltiff, and the proceeds dulyapplied, and this suit was, brought to recover the balance, remaining due theapplicaJioJ;l of.the, proceeds of the The defense set up was a discharge under a composition in bankruptcy. "The admitted facts were that on the 17th of December, 1877, defendant, Henry Greenebaum, together with Elias Greenebaum find David S. Greenebaum, who ,had been and ,then were copartners composing the firm of Henry Greene'\)aum&Co.,ofthis city, and Greenebaum Bros. &00" of New York city, filed their voluntary petiti\>n in bankruptcy in the district court of this district, and were duly adjudged bankrupts; that they afterwards, as and individually, submitted to a meeting of their creditors. duly called by the court under sectiOl;117 of the act amendatory of the bll.llkrupt June 22,1874. 1 a proposition for a composition by the payment of 25 per cent. of their indebtedness, 5 per ,cent. to be paid in cash within 60 days after the ratification of the composition by the requisile number and amount of creditors, and lOper cent. in one year, and 10 per cent. in, two years, from such ratification, without interest; thli't the creditors duly accepted and ratified such composition, and the !;lame was confirmed and approved by the court. It. was also admitted that, at the time of the creditors'meeting called to consider such proposition for composition, the German National Bank was in the management of a committee of its directors; that bank held, not only the notes in question, but divers other claims nptflecuredj that defendant, Henry Greenebaum, presented to the meeting of the individual creditors a. statement of his assets and ae1;ts, ill; ,which state,ment the notes: in question were classed as secured debts; ,that the bank was represented at said meeting by a dulyauthorized attorney, whovoted in favor of the composition upon the unsecured, beld by the bank against defendant, but did not vote upon th,e notes now in suit. and the notes in suit were not reckoned in any creditors. either for the adoption of the resolution of composition the. creditors' meeting. or for it&confirmation by the signatureof Qr.etiit,ors. 'l'he composition was ratified and became operative by the the c0\11't on the 25th day of May, 1878.

:at

118 U. S. St. at Large, 182.

FEDERAL REPORTER, vol. 50.
" ,_, r _'.

,·i·

Adolph Moses, for defendant.

Flowe:r,for ,pJaintiff.

:'-"-",,

" ._'

.'

BLOMETT, District Judge. It is now insisted that the bank assented by its action, or the action of its representative, at the creditors'meeting, to be considered and treated as a fully secured creditor inthl:l, composition proceedings; that by voting for the composition on its unsecured debts it misled, or may be held to have, misled, the defendant into the belief that it relied solely for payment of the notes in question on the security which it held for the notes, and that it ought allowed to the balance of these notes, after exhausting the security, from the defebdant; that, if defendnnt had understood at the time'brthe meeting that the bank would claim any balance on these notes, he could not have made the offer to his creditors which was made that the bank could have had the value of these notes and above ''ilie security eatimatbu by the court at the time of the composition proceedings, and, having neglected to do so, it cannot now be permitted balance, but must be held to have elected to rely only on to its, filectlrity for payment of those notes: The plaintiff ,claims that the nbtbound to have the ,securities valued, and that, if defendbank ant wished to ascertalnwhat balance would be due after exhausting the secunties, he could have had the securities valued on application to the court for that purpose. ,The question thus presented is not a new one. lnthe late case of Oavanna v. BaB8ctt, 9 Biss. 435, 3 Fed. Rep. 215, heah! before Judge DYER at the present term of this COtM't, the same point.ai'ose, and it was there ,held by the learned judge that a secured creditPr"could not be compelled to surrender her security, and come in and prove her claim, nor was it incumbent on her to have her security valued,andthen to make proof of an)' balance; nOr should her failure to db this ,be taken as evidence that she intended to rely wholly for paydemand upon 'her security." The learned judge further said: ment "The bEllikruptsknew:,ot should have known, that there was a liability that the, security would not pay the indebtedness. They were chargeable with notice that such a contingency might arise, and, if they desired to putc6tn:pliinant ina position where the composition proceedings would operate upon her,they might have applied to the court for proceedingsdolllpulsory hi their nature, to have the security valued. ' Not havlng'd6rieso, there. remained a liability that, in case the security should prove inadeql.late, complainant would have the right, as to any deficiency, to conlpel payment olthe same to the extent of the percentage paid to unsecured creditors under the composition." And the cases of Paret v. Ticknor, 16 N. B. R. 315, decided by Mr. Justice MILLER and Judge DILLon,and Ex parte Hodgkinson,l Oh. Div. 702, are to the same The leai'ned circuit judge of this circuit also held the same principle in Re Engel 1 on review from the district court. A judgment will therefore be entered for the plaintiff for the balance due on these notes,
reported

EAGLE

HANUF'G

eo. It. DAVID

BRADLEYHANUJ"G

00.

193

conditioned ,that the same shall be satisfied by" the payment of 25 per cent. of the amount due on said notes, after deducting the proceeds of the collateralsj treating the deduction as made at the time the composition was confirmed.

EAGLE MANUF'G Co. v. DAVID BRADLEY MANUF'G Co.
(Circuit Court, N. D. llUnwis. July 18,1891.)
PATENTS FOB INVENTIONS-RIIS ADJUDIOATA.

Where a suit for alleged infringement of a patent is brought against a firm that is a branch of the firm that manufactures the alleged infringing device, and the latter firm conducts the defense, a decree for the complainant is binding upon 'tbe firm that conducted the defense, not only upon all the questions that were raised and determined in the suit, but upon all that might have been raised and determined therein.

In Equity. Bill by the Eagle Manufacturing Company against the David Bradley Manufacturing Company to enjoin the infringement ofa patent. Nathaniel French and W. T. Underwood, for complainant. Bond, Adams «Jones, for defendant. BLODGETT, District Judge. This is a bill for injunction and accounting by reason of the alleged infringement by defendant of letters patent No. 242,497, granted June 7, 1881, to E. A. Wright, for a cultivator. The invention covered by this patent consists of a peculiar spring, so arranged and adjusted with the operative parts of the machine that it will aid in lifting the cultivator beams or plow beams out of the ground with an increasing force as the cultivator rises, rather than with a decreasing [orce,as is usual with such springs; this peculiar effect being produced by increasing the leverage of the spring upon the beam, to be lifted as the beam rises, although the spring is at the same time losing some part of its tension and lifting force. Infringement is charged of the first, second, and third claims of the patent, which are: "(1) In a cultivator, the combination of a vertically SWinging drag bar or beam and a lifting spring, which acts with increasing force or effect on the beam as the latter rises, and vice versa. "(2) In a wheeled cultivator, the combination of a vertically moving beam and lifting 'spting, substantially as described, whereby an increasing upward strain is communicated to the beam as the latter rises. "(3) The combination ,of a wheeled frame, a vertically moving beam or drag bar attaChed thereto, and a lifting spring, substantiaIJy as described, whicb exerts a greater strain or effect upon the beam when the latter is elevated than when it is depressed." 'The defenses int.erposedare want of patentable novelty and noninfringement. The bill avers, and the proof fully shows, that in the month of Decem. ber, 1887, complainant brought suit in the United States circuit coo11 v.50F.no.2-13