ANDREWS V. CREEGAN.
the appearance which the design will add to articles of jewelry, making them desirable according to its attractiveness to those who may observe and want them; and it is the right to the exclusive use of this which is secured by it.to the orator. Gorham 00. v. White, 14 Wall. 371. The defendants have not left the orator to his rights, but have infringed upon them by making use of a design which presents substantially the same appearance to that class of persons. For this they must be held liable. Let a decree be entered for au injunction and an account, according to the prayer of the bill, with costs.
and others v.
(Oircuit Court, S. D. New York. March 22,1881.)
DRIVEN WELLS-WRITTEN CONTRACT-PAROL EVIDENCE.
Parol evidence of a written contract for driven wells is admissible in a suit for infringement.
2. SAME-PRESUMPTION OF PROFITS-ACCOUNTING.
The allegation that the transaction was not profitable would not meet the presumption of profits arising from the putting down of the wells so as to defeat an accounting.
§ 4921. Besides, section 4921 of the Revised Statutes provides for an account. ing for damages as well as prQfits, and there might be damages to be accounted for in such a case.-[En.
WHEELER, D. J. This suit is brought for an infringement of a patent owned by the plaintiffs for a driven well. The answer denies infringement and accountability. No question about the validity of the patent is made. The proofs show that the defendant procured four wells to be put down, so as to draw water, for a fixed price, to be paid when the work should be done, and that the work was done to his satisfaction so far that he did pay. The wells put down were driven wells. It is argued that the kind of wells to be put down
. FEDERAL REPORTER.
was optional with the workman, and that the defendant is not responsible for the choice the workman made. The evi· dence does not leave a foundation for this argument,even if it was sound. The workman is the only witness, and he testifies that the contract for putting in the wells was in writing, which he could not read, but which the defendant read a'S a contract for putting in driven wells. It is further argued that, as the evidence shows the contract was in writing, which is not produced, the parol evidence is not admissible, and that there is no legal evidence as to what the contract was. This argument might be well founded if the suit were upon the contract, but it was not. The question is not what was the contract, but is, what did the defendant procure the workman to do? What he told the workman to do, or pretended to read from the contract that the workman was to do, if acted upon, would be a sufficient procurement, even if contrary to the contract. The testimony of the workman might be contradicted by the defendant if not true, and, not being contradicted or explained away in any manner, it satis· factorilyproves the affirm.ative of the issue made by the pleadings. The defendant denies any profits, and insists that none are proved to lay the foundation of an accounting. None are proved beyond the presumption arising from the fact' of the putting the well down so that it could be used. This would raise a presumption that there were, or might have been, some profits, and the allegation that the transaction was not profitable would not meet the presumption so as to defeat an accounting. The plaintiff would have the right to have the account taken, however it might result, left to him. Besides this, the act of 1870 (Rev. St. § 4921) provides for an accounting for damages as well as profits, and there may b,e damages to be accounted for in this case. Let there be a decree for an injunction and an account
and others v.TtnIl MAy'OR; ET(h
(Circuit Oourt. S. D. NerD York.
01' THE CITY 01'
July 2,1880.) .
No. 81,132-FEED WATER HEAlrJllRS FOR STEAH FIRE-Elf_ GINEs-INFRINGEMENT-VALIDITY. Letters patent No. 81,132, grantedio William A. Brickill, August 18, 1868, for improvement in feed water heaters for steam fire-engines, held, fJalid, and i n f r i n g e d . " 2. B.um-SAME-'1NVENTION-UTILITY-PATENTABILITY. Complainant's combination consisting of an apparatus for heating water, circulating through coils of pipe, to be connected, by tW9 readily-detachable tubes, with the boiler of a steam fire-engine, and also with a tank, so that when the engine is not on duty the hot water will circulate through the boiler and keep the ready for immediate use, and through the tank, keeping the heating apparatus order when the engine is away, lteld, to involve invention;and it possesSed utility was therefore patentable.
8. SJllCTION 7, PATENT ACT OF 1839, CONSTRUED-UBJll PIitOR TO APPLY-' CATION FOR PATENT. The clause of the act of 1839 which provides that every person and corporation may use, and vend to others to be used,. any 8peciflc rna, chiruJ, manufacture, or compoBition of matter which they have purchased or constructed prior to the application for a patent, held, restricted in the case of patents for 8ub8tantitlB things to the use of the particular thing bought or made, and not to a general use of the invention. PierB011J v. Eagle Screw Co. 3 Story, 402, 408. McOlurg v. King8land, 1 How. 202, distinguished.
4. ACT OF 187o-JuRISDlCTION. The act of 1870 may govern rights under patents issued prior thereto, if the effect would not be to take away rights already secured under such patents. I. INFRINGEMENT-AGENOY. A city will be held responsible for infringements by lts1lre dllpart': ment, though separately incorporated. 6. SAllE-EX'rENT-lNTERLOCUTORY DECREE The extent of infringement shown is immaterial for the purpose of an interlocutory decree.
In Equity. James A. Hu.d8on, for complainants. liIf'ederic H. Betts, for defendants.