'broken or' slottied.' .', I chum as,'. J:nytnvention: The· hollj)\!,soldering-irou, A.. a ,ban ,d.Ie." B'.IlJl.d pev.· eU rim, a, a, in com1;lfnatil)Dwith the rod . . ,. ·. . IlS herein and set forth." . .'
ed. ' .
'.r "fumy .opinion, the defendants' iron does, not infringe either the Barker or Bostwick patents, upon the construction which: I feel bo;uM to give It has neither the annular disk nor'the rod described in the, Barker. patent; neither .has it the guidilig'rtjd",ith adiameter,aMut equal to the'cap, and proVided with a$»'o1l,l9-er, nor. the hollow cylinder of iron with a smaller diameter above its lower end, of the Bostwick patent. In .the defendants' ir()J:!. a small rod runs through the center of the cylinder and handle, a11tl It 'has a knob attached to the rod 'above the handle. This rod is .upon the' lid1 'the can, and serves' to guide the soltleiing ironto and from the lid. ;"4-sto the .McMurray and Hollingsworth patent, I shall follow the'decision of' Chief Justice Waite in holding the patent void for Wl1n:t:Of invention. McMurray v. Miller, 16 Fed. 471. The conclusioII I have reached is that the defendants' iron does nbtlnfi'inge either the Barker or Bostwick patents, and that the Mclfurray and Hollingsworth patent is void for want of·invention. It follows that judgment must be entered in each case for defendants': .,.
CA.LLAWAY v. ORlEN'l' INS. CO., ,
(:oletrict Court, N. D. Ohio, W. D.
July 18, '1894.)
1; MA1UNE INSURANCE-OPEN
. A. ,literal compliance with a clause in an open WUcy that "no shlp-
A provisiorlln an openpollc:v, "Shipments to be reported to the agents of said company at T.," will not be construed to mean all shipments, wheJ1t} it wR$ well known ,to 14e insurer's agents that the insured did a practice to all shipments, and previous policies n()t Jllake . an express agreement to report all shiJlmerlts. .,
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This was a libElI in admiralty. BroWI:l& Geddes and Clarence Brown, for libelant. Butler, ,Stillman & . Hubbard and WUhelmus Mynderse, for respondent. .This is a proceeding in admiralty, institu,ted by Samuel receiver of Elt. Louis & IiaDsas Oity Railroad Company, for and on behalf of all<others whom it may' concern, against the Orient Insurance Corllpariy; a corpo'ration organized and existing under the laws of
ORIENT INS. CO.
the state of Connecticut. The bill, after' averring the appoint· ing of the receiver, and the making of an order by the circuit cou.rt for this district, .empowering him to operate said road, and to operate a line of steamboats between Toledo, Ohio, and Buf· falo, N. Y., known as the Toledo, St. Louis & Kansas City Railroad Company Steamboat. Line, proce to aver that on or about the ds 1st day of April, 1893, the respondent, the Orient Insurance Company, .duly executed and delivered to the said Toledo, St. Louis & Kansas City Railroad. Company its policy of insurance, in writing, a copy of which is aJttached to the libel, and marked "Exhibit A," whereby, in consideration of the premium agreed to be paid, it covenanted and agreed to insure the said Toledo, St. Louis & Kansas City Railroad doing business under the name of the Toledo, St. Louis & Kansas City Railroad Company Steamboat Line, for account of whom it might concern, against all loss and damage by reason of the perils of the lakes, etc. The libel- . ant seekS to recover upon this policy of insurance for package freight, freight lists, and freight charges of. goods shipped on the steamer Dean Richmond on the 13th of October, 1893, from the port of Toledo to the port of Buffalo, the invoice value of which, with 10 per cent. added for package freight, was $42,781.61; for freight list, $2,256.60; and for freight charges, $317.51. The issuance of the policy is admitted as averred in the libel. The proof shows that the application for this policy was filed, by the authority of the general freight agent of the receiver, with Barker & Frost, the local agents of the insurance company at Toledo. It appears from the proof th&t this firm are agents for several companies, both for fire and marine insurance; that, when the application for this insurance was filed with them, they forwarded the same toSmith, Davis & Co., who are the general agents of the Orient Insurance Company, and several other companies at Buffalo, N. Y. The said firm of general agents placed the risk in this case with the respondents, and sent back a policy duly executed and signed. The proof shows that the railroad company, of which Mr. Callaway is receiver, had taken out, for the years 1890 and 1891, similar policies in the same company, through the same agencies, to cover package freight by the line of steamers operated by the railroad between Toledo and Buffalo. The policy is what is known as an "open policy," and insures package freight, freight lists, and freight charges belonging to the said steamboat line at risk and reported as herein stipulated. The provision as to repor1s reads as follows: "Shipments to be reported to the agents of said company at Toledo, Ohio." Another clause in the policy provides: "No shipment to be considered as insured until approYed· and indorsed hereon by this company." As the construction claimed for this policy by the respondent renders it void, because the agents. of the receiver did not report all shipments' for insurance to be accepted and indorsed, it becomes important to ascertain from the proof how the business was conducted between the insurer and the insured, for the clause quoted evidently was intended to give some authority to the agent to whom the shipments are tl)
be 'reported. The policy" does: not say all shipments shall be rtlported. It does notaay, how they shall be reported. In this vespect the policy is quite different from that issued by the same iIiSUl'ance company to the, Toledo, St. Louis & Kansas City Rail· Iioad.!Company in 1892. The. provision in that policy read: "The assured agrees to report all shipments to this company, and a failure to repollt the full value of each and every shipment shall render this insurance null and void." This policy was allowed to' be offered' in evidence for the purpose of showing the previous agreement and understanding between the insured and the insurer, and especially to show the. change in the practice Of . reporting shipments as directed by the agents of the insurance company. This policy of 1892 was issued by the same general agents, Smith, Da"\thf:& Co.,' at Buffalo, N. Y., who issued to the same railroad conipanythepolicy of 1893 and the policies of 1890 and 1891. The . in the policy of· 1893 of the clause just above quoted, Whl!li'taken in connection with the instructions and practice establisbedby the agents of the insurance company with reference to repbrts made of shipments, is very significant, and throws a great deal of light upon the true nature of this insurance contract. The clause in the policy of 1893 upon which this action is based, which provides, ''No shipment to be considered as insured until approved and indorsed hereon by this company," could not ha"\tebeen intended to be literally complied with, for it was a physical impossibility, in fact, to have made such indorsements upon the policy. No space was provided for such indorsements. No blanks were provided for such indorsements. The mode of reporting was otherwise provided through the general agents of the insurer. Blank books were furnished to the general agents, and by them furnished to the local agents of the insurance com· pany, who, in turn, furnished the same to the agents of the insured; and in these books were certain printed directions, which, with the oral instrUctions given by the agents of the insurance com· pany, and a custom which was prescribed and carried out by these age:i::tt!t; made and established a certain fixed method for doing this business, which must have been w(;ll known to the general agents of the insurance company and to the company itself. The printed indorsement on these blank books so furnished by the insurance company read as follows: "This book is made part of Orient policy No. 156, and all risks entered herein are subject to all its terms and conditions." The instructions contained in the books and directions given by the respondent's agents were that the agents of the receiver at Toledo and Buffalo were to enter in the forms prescribed in the books such package freight as the insured desired to be covered by the risk. These entries were made as each boat was loaded. The values were placed in the proper column,' and . the amount of premium to be paid was entered in its proper place. At the end of each month, these books, with their entries, were examined by the local agents, and compared, and the premiums then paid. The local agents of the respondent had the right, under the policy, to examine all the
CALLAWAY 11. ORIENT INS. CO.
books and bills of lading, and all papers of the insured by which to test the correctness of the entries made in the books. The latter were a part of the policy. As no space was left on the policy for the indorsements required, the books supplied the want. They were therefore a part of the contract, and the manner of their use was to be prescribed by the local agents of the insurance company. It appears from the testimony ,that these books were furnished to the agent of the receiver at Buffalo by Smith, Davis & Co., the general agents of the company, conspicuously advertised in the company's policy as its "General Agents." The mode of making the entries in the books was known to them. As these methods were not in violation of any provision of the insurance policy, and did not vary or contradict the terms thereof, it was entirely proper that the instructions of the general and local agents of the company should be shown by testimony, and the custom for doing this part of the busines,s prescribed by them was clearly within the scope of their authority. The practice for three seasons, followed by the agents of both parties, was in perfect accord with the forms, blanks, and books furnished by the company. We may justly conclude the' practice was pre· scribed by the company, and known to and ratified by it. I am clearly of the opinion that the company has no pretext whatever for refusing to recognize the act of its agents and the mode in which they carried on business with the receiver. It must have been known that the same mode of carrying on business had been recognized in the two preceding seasons of 1890 and 1891, when its same general agents, executed the same kind of a policy. I do not find in the proof, or in any provision of the policy of insurance, any basis for the claim that, because some freight was shipped in cargoes where most of the package freight was reported and insured, such failure to insure all shipments avoided the policy. The receiver's agents made no secrecy of the fact that they did not insure freight which the consignors themselves had insured. That would have been double insurance. The practice was well known to the agents of the insurance company, for' they insured such freight in their own offices for the benefit 01 other insurance companies. It seems plain to me, therefore, that this policy provided for future insurance, and that each indorsement of shipment made in the books provided and furnished by the insurance company for that purpose was a contract of insurllnce under the policy. This was what the practice and cusrtom prescribed by the books furnished by the company itself, and by the instructions of its agents, clearly contemplated. They also understood it, and I think the contract was binding, and was supported by the consideration provided by the policy. The libelant may therefore have a decree for the amount of shipment$ indorsed in the books for the cargo of the Dean Richmond for October 13, 1893. The loss of this cargo was proven, and the fact not controverted by the company. If counsel can agree on the amount, it may be so entered; otherwise there may be a reference to a master in the usual way. v.63F.no.6-53
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TRAVER BROWN. (CIrcuIt Court;D. Vermont October 2, 1894.)
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patent, No. 431,957, a "stttcb-breaking and raveling atUtChmenl1 machines for sewing 'looped fabrics," which operates by wedging apart, was IlQtanticipated by the prior Congdon invention, which operated by seizing and pulling the threads; and defendl'jllt'!J .DlltChiJ:!.e, which operates in part, at least, by wedging the tbrea4ifapart, is an infringement.
This was a rehearing upon new evidence in a suit by Adelbert Lee Traver. against Eugene H. Bl.'own -for infringement of a patent. The case on the :first hearing is repor1;ed in 6,2 Fed. 933. Odin B. Roberts, for plaintiff. Franklin Scott, for defendant.
WHEELER, District Judge. This case has been opened, and a COpy of the:file wrapper and contents of an application of Oliver J. Congdon, dated December 8, 1887, serial No. 257,297, for a patent "for an improvement in method for removing sUr'plus material from machines fol' uniting knit or looped fabrics," put in evidence, with a stipulation that a machine was made, used, and broken up embody· ing the invention described. It has been further heard and con· sidered upon this and the former evidence. In that machine, as understood, a point projecting from the corner of a square plate moving across the fabric' entered the first stitch of a row, engaged the first 'thread of the stitch, with another plate clamped it, and, moving further, broke it; then, returning across the fabric, and reo leasing the loose end of the thread, another point projecting from al1Othercorner of the square plate entered the next stitch, with the other ])late clamped the next thread, and, moving further, broke that; and so proceeded breaking the threads and removing the pieces till the thread of tllatrow of stitches was aU removed. It appears to have broken' the threads of the stitches by seizing and pulling thein, and is not shown to have done so at all by wedging them apart. Still it is argued to have so limited the field for invention which the plaintiiff's patent might cover as to leave the de· fendant's ·m:achine outside. That machine is said to have pulled the threadS ,apart, wnerethe defendant's cuts them; and the defendant is said to have taken that invention by making the parts cut, rathet 'than to have taken the plaintiff's invention as it is patented in this patent i:['his atgument would· be better founded if the defendant's machine divided the threads wholly without wedging, and the of the patent wholly excluded cutting. But the edges of the wedge of thepa,tent are described as blunt or rounded only, "so as not \0 cut the .fabric immediately on coming in contact with· it," arid are left" so they may help division by abrasion, 16r'clltting even, as wen as by strain on further pressure. The defendant's machine appears to operate by wedging, according, to the patent, even if it does cut, and:cut more than the patent de· scribes. Let there be a decree as before.