COLLINS V. GLEASON.
fore, on demurrer, held bad for multifariousness. 68 Fed. 913. Complainants now move to vacate the order sustaining the demur· rer, and for leave to amend the bill. J. Snowden Bell and George H. Christie, for complainants. Witter & Kenyon, for defendants. DALLAS, Circuit Judge. When the demurrer to the bill in this case was originally argued, the impression was made upon my mind that it was conceded by complainants that the respective subjectsmatter of the five patents sued on were not used in one mechanism, but upon different, though contiguous, parts of the same railroad. Upon this understanding, I held the bill to be multifarious, and upon that ground sustained the demurrer. The complainants now move to vacate that order, and for leave to amend their bill by adding thereto the following:
"And your orators in this behalf further aver the fact to be that the con· joint use made by the defendants herein as herein averred includes a use of a material and substantial part of the subject-matter of each of the said recited patents in one and the same connected machine, mechanism, or apparatus."
COLLINS v. GLEASON. (Circuit Court, S. D. New York. June 28. 1895.)
The discovery that sheets of celluloid, which, by reason of their frangi· bility, were not adapted for use as card cases and book covers, couId be sewed between leather bindings, and held by their stitches so as to be used for these purposes, held to be sufficiently novel to support a patent. The Collins patent, No. 405,874, for celluloid bindings of leather for card cases and book covers, held valid and infringed.
This was a bill in equity by Kate J. Collins against Thomas Jay Gleason for infringement of a patent for bindings of leather for eel· luloid card cases and book covers.
Edwin H. Brown and James O. Ohapin. for plaintiff. L. 'J. Morrison, for defendant. WHEELER, District Judge. This. suit is brought upon patent No. 405,874, dated June 25, 1889, and granted to the plaintiff, for celluloid bindings of leather for card cases and book covers. The defenses set up in the answer are, in substance, that the specification is insufficient; that, to deceive the public, it was made to contain too much,-with denials that the invention was of any utility; that it was, "in any respect, novel"; and of infringement. The defenses set up wholly fail, and the denials, except as to novelty, are overcome; and as no prior knowledge and use by any person is set up, with place, as required by the statute, or at all, the question of novelty rests upon this general denial, to be determined, as to patentability, upon common knowledge. Oelluloid sheets apparently were not, and, from their frangibility, could not well be, used for these purposes without such bindings; for they could not be held by stitches, nor otherwise held in place. The plaintiff dis,covered that they could be sewed between leather bindings, and be held by the stitches. For this discovery, and the combination of these parts in this way into these new articles of manufacture, she was awarded this patent. Binding the edges of material with other material to hold or strengthen it was not at all new, and a patent for this only would wholly fail. But here was peculiar material, not used before by being sewed, nor practically sewable alone, made sewable and brought into use by this invention. This does not appear to be a merely mechanical double use, but a new use brought about by contrivance, experiment, and adaptation. Such bringing to a new use seems to be patentable. Potts v. Oreager, 155 U. S. 597, 15 Sup. at. 194. Decree for plaintiff.
=SALISBURY v. SEVENTY THOUSAND FEET OF LUMBER et al. (District Court. S. D. New York. March 26, 1895.)
DEMURRAGE-DELIVERY OF CARGO- SALE -DELAY AT SELI,ER'S RISK. ON BOARD "-VESSEL TO AURIVE
The defendant B. (brought In by petition of defendants) loaded the libelant's boat C. with lumber at Albany, and consigned it to himself at New York. He then sold the lumber to H. who bought it for export by the steamer A. P.; B. agreed to deliver it "f. o. b. vessel where she lies" (meaning free on board the A. P., and clear of all claims or liens). When B. sent the boat alongside the A. P. to deliver the lumber, the A. P. was not ready to receive it, and the boat was detained six days before the lumber was received, for which delay the lumber, after delivery on the steamer, was libeled for demurrage. B. daimed to have followed H.'s orders and those of the agents of the steamer as to the time of tender alongside, but upon conflicting evidence on this point, it being founQ that the lumber was received as soon as the customary permit obtained from the steamer specified: Held, that the risk of delay in the readiness of the steamer, and the burden of proving directions to go alongside earlier than the permit statea, were on the seller, B.; that the weight of evidence did not support his contention. and that though the lumber was liable for the demurrage, B. was personally bound to indemnify H. against the claim, and to pay the sama with costs.
SALISBURY V.SEVENTY THOUSAND FEET OF LUMBER.
'rhis was a libel by Nelson H. Salisbury, as executor, etc., against 70,000 feet of lumber and Horace F. Burroughs, Sr., to recover de· murrage. Hyland & Zabriskie, for libelant. Convers & Kirlin, for Herbst, claimant of the lumber. Charles H. Hough, for Horace F. Burroughs, Sr. BROWN, District Judge. The libel was filed to recover freight and demurrage upon the delivery of 70,000 feet of lumber from the river boat E. J. Carroll, upon the steamship Afghan Prince on November 21, 1894. The lumber had been shipped on board the Carroll at Albany by the defendant Burroughs, consigned to himself at New York, and he had thereafter sold the lumber to Herbst who bought it for the purposes of export by the Afghan Prince. The contract between Mr. Burroughs and Mr. Herbst was that the lumber should be "delivered f. o. b. vessel where she lies within lighterage limits, shipping instructions hereafter." The proofs show that by the Ian· guage used it was meant that the lumber in question should be delivered by the seller free from all claims or charges alongside the ship, by which it was intended to be exported, and into her custody, at the time when the ship was ready to receive it; and that the seller should procure, according to custom, the ship's receipt therefor, and deliver it to the buyer. The boat with lumber on board was sent by Mr. Burroughs along· side the steamer on the afternoon of November 15th; but the steamer not being ready to receive it, the lighter was moved to the opposite side of the slip, where it remained until the 21st, when it was hauled alongside and the lumber removed to the ship on that day. For this delay in unloading, demurrage for six days is claimed. Mr. Herbst cootends that he was not liable for the delay, because he was entitled to have the lumber delivered free of all charges, and because he had not caused any delay in the delivery. Mr. Burroughs -claims that the lighter was taken alongside on the 15th under directions of Mr. Seager, the agent of the steamer, or of other persons representing the line of steamers, to whom he had been referred for in· struction by Mr. Herbst, while the latter denies that any such refer· encefor instructions was given. Mr. Burroughs was made a party defendant. upon petition. By the contract between Burroughs and Hubst the latter was bound to give instructions as to the time when the lumber should be taken alongside the steamer for delivery. If, instead of giving such instructions himself, therefore, he referred Mr. Burroughs to the agen.ts of the steamer for instructions, Mr. Herbst, as between him and Burroughs, would be bound by any instructions given to Bur· roughs by the representatives of the steamer, and therefore bound to pay any legal claims for demurrage arising through compliance with such instructions, and look to the steamer or her agents for his own indemnity. Mr. Herbst denies, however, having referred Mr. Burroughs to the' agents of the line for any instructions, though adthat hereferred him to them for information, stating that
he had been unable to ascertain from them when the steamer would' be ready. On the 16th of November Mr. Goudie, an employe of Mr. Herbst, obtained a permit for loading the lumber upon the steamer upon the 20th; and the cargo as received within 48 hours after that day, which was sufficient under the custom proved. Both Mr. Herbst and the representatives of the steamer deny any appointment, or the designation of any fixed day for the re<;eipt of the }lImber, other than the 20th. The chief reliance of Mr. Burroughs is upun an alleged con" versation between his salesman, Mr. Oleson and Captain Saunders,< one of the superintendents of the steamship line. The lattertesti; fied that in 'answer to Mr. Oleson's urgent request to receive the cargo without delay, he merely promised that the ship would it as soon as she could, if he chose to send the lighter to the ship at the Atlantic· Basin. Mr. Oleson testified that he promised that if he would send the lighter there that the discharge should be commenced on Friday the 17th. Mr. Burroughs had, for a week previous, been employing the lighter in other work with this lumber on board, to prevent demurrage accruing, and when he received word that the lumber would be received on the 15th, had other employment engaged for the lighter on that day. I aave no doubt that he supposed the lumber would be received at once. On the other hand it was known that the steamer had been delaved in her arrival; had afterwards been obliged to go upon dry dock, and that the time of her loading this lumber, which was to go upon her deck, was uncertain. The ordinary practice of the agents of the line was to give a written permit fixing the time for unloading. In claiming to rely upon oral directions, instead of upon the ordinary written permit as to the time of receiving cargo, the burden of proof is upon Mr. Burroughs to show clearly that a definite time between was undoubtedly and definitely fixed. In the the two principal witnesses in this regard, I do not think that there is such a preponderance of evidence on the side of Mr. Burroughs as justifies the court in holding that such a definite agreement was made. The testimony of Mr. Oleson, the chief witness on that point, is weakened by errors in other respects, which the preponderance of evidence seems to show that he has made in other parts of the case; first, as respects a time fixed by Mr. Seager, in aconversation which is said to have been had before the vessel arrived; and secondly, as respects the permit for the delivery given to Mr. Oleson on the 16th of November, and Oleson's statement on that day, that he had been unable to obtain from the agent of the ship any definite time to be fixed. . I must hold, therefore, upon the testimony, that Mr. Burroughs in sending the lighter alongside before the permit was obtained, sent her there without any definite appointment, and at his own risk. In selling the lumber free on board of a vessel which was to arrive, Mr. Burroughs took the risk of the delay until the time when the vessel was ready to receive the goods. Upon such a contract he could only avoid that risk, by fixing a time for the delivery, when it should be the duty of the vendee or of the ship to receive it. In this
THE MARY L. PETERS.
the contract was silent as to the time of delivery, and I can· not find that any fixed day was subsequently agreed upon before the time named in the permit of the 16th for delivery on the 20th. The carrier, however, was entitled to compensation for the use of his boat. She was under the direction of :Mr. Burroughs, the shipper; he is liable to the lighter for her detention, and has not suill<ciently shown that Mr. Herbst, through any reference to the steamship agents, or any fixed time agreed on with them has relieved him of that liability or entitled him to call upon Mr. Herbst for indemnity. Mr. Burroughs, before suit, tendered to the libelant's attorneys the freight, though refusing to pay demurrage. The attliJrneys refused to receive it, lest by receiving it they should release any lien for demurrage. There must be a decree, therefore, for the freight and demurrage against the lumber and the defendant Burroughs, with the provision that he is primarily liable to pay the amount; with an order of reference to ascertain the value of the use of the lighter, if it is not agreed on. The question of costs reserved as between him and the libelant. The defendant Herbst is entitled'to a decree against Burroughs, with costs.
THE MARY L. PETERS. HOWELL et aI. v. THE MARY L. PETERS.
(District Cour;t, S. D. New York. June 25, 1895.)
'CARRIERS-'-DulAGE TO CARGO-SEA PERILS-LEAKY DECK-UNSEAWORTHINESS -'-BARTElt ACT-"DuE DiLIGENCE" REQUIRED OF SUPERIKTENDENT OF REPAIRS. '
The Mary L. Peters with a cargo of sugar froIn Sagua La Grande to New York met extraordinary weather in February and March, and the sugar was damaged by water through leaks about the waterways, and batches, and through the decks; the evidence showed the deck in pOOl' condition before sailing, and unfit for such a voyage and cargo. Held (1) that the vessel was answerable for the damage from leaks through the deck; (2) that there was no such "due diligence" exercised by the persons employed by the owners to see to the repair of the ship as to exempt the ship and owners.
This was a libel by Benjamin H.. Howell and others against the 'schooner Mary L. Peters to recover damages to a cargo of sugar. George A. Black, for libelants. Goodrich, Deady & Goodrich, for respondent. BROWN, District Judge. The above libel was filed to recover for damages to bags of sugar upon a voyage from Sagua La Grande to New York in February and March, 1894. The damage arose from sea water taken in through the decks, and in the waterways and around the coamings of the hatches. The evidence of very severe weather on the voyage is in this ease much stronger,' in my judgment, than in the case of The .centurion, 68 Fed. 382, in which the court of appeals in this dis-