1& . continuoos :the silfes.l1nd topo! the back, both ends being fastened in the seat'-wtis old. .'Did it, then, hi viewOf' what. had already been done, reqnire inventive genius, of any orderj to-apply. to the !curved back 'of such a chair a' piece of perforated of other'flexible material? The court below ruled that it did. nbt,and in that JUdgment we entirely concur. the proofs already discussed, this record contains REI an exhibit a patent, No. 179,721, granted on July 11, 1876, to Michael Ohmer"for an improvement in chairs; 'The illustrative drawing of that patent shows a common bow-back chair, with a wooden back piece secured by screws against the front of the top of the bow, and leaving the lower of the .fOunds exposed. Under the ruling in Gor1uJ.m OJ. v. White, 14 Wall.oU, the concluision, wethinkj is well warranted that Ohmer's chair baok and Paine's design are substantially identical'in appearance. But, at any rate, when the Ohmer chair back is added to the other proofs touching the prior state of the art, it becomes clear, beyond any sort of doubt; that Paine's design possesses no patentable novelty. We are altogether satisfied with the resultrea:ched in the court below, and accordingly the decree dismissing the hill is affirmed.
GAS Co. OF DANVILLE AMERICAN ELECrR;J:C CoNSTBU<>O Tl0N .Co., LIMITED.
CO£reutt Court of Appeals. Thtrd Circuit. April 22, 1892.)
L APJ'mAVIT OJ' .DBJ'BNSB""':AcTION ON WRITTBN CONTRACT-PAROL AGRBEJlBN'l'.
An aftidaVit.'6f defEioseto an aotion on a written contract to reoover the price of . an eleotric light plant that plaint1:lthad agreed, at .the time the contract was made, to exeoute as.tis/actory bond defendant against suits for infringement of ilertain patents, but had failed to exeoute suoh a bond. The written contract \lOntained no provision for indemnity, and the aftidavit neither alleged that 8uchproviaion Wll8 omitted by fraud 01' mistake, nor that defendant was induced . to execute tM writtenoontract by reason of the alleged parol agreement. Beld, that it muBt be preSUmed ,that the agreement for a bOnd was vel'bal, and, as evidence thereof would be inl¥1.missible, the am,davit was insufticient. 47 Fed. Rep. 48,aftirmed.· '. . .
SAH....IN:rRING:BMBNT lOP PATB:h..".....CUIH POR IhlllAGBB,
Apurohasl;lr of a machlue who has had the undisturbed use and possession thereof cannot, in the absence of fraud, withhold the because of an alleged liability on his part to a patentee"forinfringement ofhiarights in the use of the proper1;y.. 47 Fed. Rep. 48, afIlrmed.
8.BAMB-VAGUB AND INDBFINITB ALLBGATIONS.
The general alleg!ltionsthat plaintiff "had not complied with the contract," and that defendant "had already been 'put to great delay and exp<>lIUl'e and damages, to the amount of t,en thousand dollars," were too vague,.indefinite, and uncertain to : present a suftioient defense. ·47 Fed; Rep. 48,atll.rmed.
Error to the Circuit Court of the United States for the Western District of·Pennsylvania. by the American Electric Construction Company, Limited, against -the Consumers' Gas Company of Danville. An a.ffidavit of de-
CONSUMERS' GASca.V. AMERICAN ELECTRIC CONSTRUCTION CO.
fense was, error. Before JUdges.
insufficient, (47 Fed. Rep. 43,) and defendant brings
Jwrn,e$ Scarlett, for plaintiff in error. a. E., Morgan, for detEmdant in error.
Circuit Judge. and
ACHESON, Circuit Judge. An affirlavit of defense is insufficient to preventjudgment. unless it sets forth all the facts necessary to constitute a substantial defense. Mere general averments amounting to legal conclusions will not do. The specific facts must be stated, so that the court may draw the proper conclusions. Nothing should be left to conjecture, for tbat which is not stated must be taken not to exist. These principles have been repeatedly declared and enforced. Bryar v. Harrison, 37 Pa. S1. 233; MILTSh v. JIaTshaU, 53 Pa. 8t.396; Peck v. Joo.es, 70 Pa. 8t. 83; Asay v. Lieber, 92 Pa. St. 377. The action here was to recover a balance alleged to be due to the plaintiff below from the defendant upon a written contract, dated July 6, 1888, whereby the plaintiff company agreed to furnish and set up at the works of the defenda'nt company' certain machinery and appliances lor an electric light plant, and also to construct certain circuits of poles and wires upon specified terms. A copy of the contract was attached to the affidavit of claim, and al!"o a particular statement of the plaintiff's account, with the credits to which the defendant was entitled, and perfonnance by the, plaintiff was distinctly averrelL The affidavit of claim was complete. It was then incumbent upon the de,elldant to file an affidavit setting forth specifically. and with reasonable certainty, the grounds of de:ense. The court below decided that the affidavit of defense filed was insufficient to prevent judgment, and, after careful conl:lideration, we have reached the same condusion. I As regards the Conard claim. it is quite evident that credit therefor was actually giv.en to the deltmdant in the plaintifl"s statement of account filed, with a slight error in amount. which the court below corrected. This was not seriously controverted upon the argument in this Cf)urt. No valid defense was disclosed by the allegations in the defendant's affidavit that, at the time the written contract was entered into, the with the to fully indemnify and save it harmplaintiff less as Against any and all demands andc1aims under or growing out of letters patent of the United States, and against any and all suits for the infringemer.t thereof, by reasou of its use of the electric light plant, or any of its parts, by the plaintiff under l'uid contrart, and to give to the defendant, on demand, a good, sufficif'nt, and satisliwtory bond so to do; that the plaintiff, in recognition of this obligation, tendered to the deltmdullt a bond, which was not acceptahle to and was not accepted by the defendant, all it waR neither good, sufficient, nor satisfactory to indp.mni(yand save harmless the defendant; and that the plaintiff' failed. on demand, to give to the defendant sllch a bond as it agreed to do. No provision whatever for inJelllDity is to be found in the written contract
Sl1ed6npI0r is it averred i1) theaffidl1\rit of defense that such provision was omitted therefrom by fraud, accident, or mistake. Now t as it is not alleged that the agreement with respect to indemnity was in writing, it must be taken to have been by parol. A writing will not be assumed to the absence of express averment of the fact. Mar8h v. Mar8hall t supra. Moreover, if the alleged collateral agreement was in writing t the defendant was bound to annex a copy to its affidavit. Erie City v. Butler, 120 ,Pa.St. 374 t 14 Atl. Rep. 153; Willard v. Reed, 132 Pa. St. 5, 18 Atl.Rep.921. It follows,. therefore, that without any averment of fraud, accident, or mistake,the defendant sought, by means of a parol agreemelilt: made contemporaneously with the written contract, and as a part oft,hetransaction, materially to vary the written contract, and to introduce therein an entirely new stipulation, changing the plaintiff's liability under its implied warranty of title,and imposing upon it an additional qbligation. Plainly, this defense would contravene the rule, so often enforced by the supreme court of' the United States, that, in the absence of or mistake, it must be conclusively presumed that the written contract contains the whole engagement of the parties. Brown v·. Spofford, 95. U. S.474; Bastv. Bank, 101U. S. 93; Richardson v. Hatdwick,<106 U. S. 252, 254, 1 Sup. Ct. Rep. 213. In Pennsylvania, although. there has been some relaxation of this rule, it must nevertheless appear that the party who sets up the. oral promise or undertaking was induced thereby to sign the written contract. Phillip8 v. Meily, 106 Pa.St.536; Wannerv. Landis. 137 Pa. St. 61,20 Atl. Rep. 950; Sidney School Fumiture Cb. v. War8aw School DiBt., 130 Pa. St. 76, 18 Atl. Rep. 604. But tbeaffidavit .ofdefense here contains no allegation that the defendant was induced, by reason of the alleged parol agreement, 'to executethe written contraot.'· Under the Pennsylvania decisions, then, the defense up is clearly inadmissible. ; Such being our conclusion, we need express no opinion upon the question whether, under the oollateralparol agreement stated. it was enough for the defendant simply to allege that the tendered bond was not good, sufficient, or BatisfactorYt without assigning any specific reason why it was not. It may be here added that, if the fact of tender could be regarded as an admission against the plaintiff, it would be an admission merely that the defendant was entitled to such a bond as the plaintiff offered and the defendant declined. That part of the defendant's affidavit which asserts that a certain named patentee has served the defendant with notice of a claim for damages for infringement of letters patent by the defendant's use of the machinery and appliances furnished to it by the plaintiff, and that by such Use the defendant is I1lso liable to another patentee, affords no ground of defense to this action. A purchaser of property, who has had the full use. and enjoyment of the same, and is in the undisturbed possessior! thereoft in the absence of fraud, cannot withhold the purchase price bec/luse a third person claims to have a superior title thereto, or an adverse right therein, and threatens to bring suit to enforce the same, or because of an alleged liability on the part of the purchaser to a patentee for an
TliE ROBERT B. KING.
infringement of letters patent, by reason of' the uSe of the property. Wanzer v. Truly, 17 How. 584, 585; Krumbhaar v. Birch, 88 Pa. St. 426; Geist v. Stier, 134Pa. St. 216, 19 At!. Rep. 505. Finally, the general allegations, without further specification, that the plaintiff" has not com plied with its contract," and that the defendant" has already been put to great delay and exposure and damages to the amount of ten thousand dollars," are altogether too vague, indefinite, and uncertain, as the authorities cited at the 0:eening of this opinion demonstrate. The court below was entirely right in holding that the affida\Tit of defense was insufficient, and in entering judgment for the plaintiff. Judgment affirmed.
THE MARY LYMBURNER.
(Dtstr!ct Oourt, D. Massachusetts.
May 81, 1899.)
CoLLISION-SAIL VEBSELS BEATING-DUTY TO RUN OUT TACit.
Two sQllooners were sailing in the same general direction, olosehauled on the .port tack. The swifter vessel, the K., passed the other, the L., to leeward, and.tben came about on the starboard tack, and was struck before she had fairly gathered headway. There was sea room enough for the K. to have continued further on her port tack. HeW, that the L. had the right to assume that the other vessel would beat out her tack, and that for her failure to do so the K. was liable. .
In Admiralty. Cross libels for collision. Frederic Dodge and Edward S. Dodge, for the Mary Lymburner. Thomas J. Morrison, for the Robert B. King. NELSON, District Judge. These cases are cross libels for collision between the schooner Robert B. King and the schooner Mary Lymburner. The collision occurred on the afternoon of December 12, 1891, near Bishop and Clerks light, on Nantucket shoals. The weather was fine. They were both small coasting schooners, laden with lumber, with high deck loads, and were bound to the westward. They were running in the same general direction, with all lower sails set, c1osehauledon the port tack, and were beating into Hyannis harbor against a head wind for shelter, the King being to the leeward. The Lymburner was going nbout five knots. The King was sailing faster than the Lymburner, and having passed her to leeward, came in stays to go about on the opposite tack, thereby ranging across the bows of the Lymburner and getting directly in her course. After she began to fill away and beforeshEl' had fairly gathered headway, she was struck by the Lymburner with a square blow at the main rigging on the port side. Upon these facts the conclusion is inevitable that the collision was caused by tile King's luffing across the bows of the Lymhurrier in such close proximity as to render it imllossible for the Lymburner to avoid the collision by any change ofcourse.