that suit is merely a mode of adjusting the pressure'in the valve, w.hich the subject-matter of the plltent sued on iIi. No. 1,184. Bills dismissed, with costs.
and others v.
(Circuit Court, D. New Jersey. December 17, 1880.)
1, RE--I8sUE No.
Re-issued letters granted Samuel W. Tyler, Augusl' 24, 1876, for improvements in harvesting machines, Md, va&id 88. to, the third and fourth claims.
In a suit for infringement the patent act allows as a defence anticipation by other letters patent or by a printed publication; and when the fonner is pleaded the complainant may show, 'if he can, that the date of the actual invention was older than the date of the contl3Sting patent; but no emphasis'is laid upon the inquiry into the time when the inventor of the aJleged prior patent made his invention. '
3. SAME--:JJONG- UNQUESTIONlID
The long-unquestioned validity of a patent, its extension; and re-issue, all make a strong 'JY1'imafacie case for sustaining such patent.
The incorporatiQn by the defendant in his machine of the complainant's invention is an evidence of utility.
SAllE-INFRINGEMENT-MoDIFIED APPLICATION NO DEFENCE,
The defendant cannot relieve kimself from the charge of infringement by directly and nllt mediately attaching complainant's inventionto his machine. Complainant's invention, consisting of a rigid support or frame, cast or formed in one piece, attached to the axle of a harvesting machine upon whioh the gearing and shafts which communicate motion from the main gear-wheels, or driving wheels and axle, to the cutter, are borne, and bearing upon a rectangular wooden frame act. ing as a medium of support between such frame and the axle, hdd, infringed by a device in which the rectangular frame is dispensed with, and such support directly attached to the axle.
Seward r:I: Dodge, for complainants. Thurston, Woods r:I: Adams, for defendant.
NIXON, D. J. Thisis a s].1it.for the infringement of extended and re-issued letters patentrltlmbered 6,609, dated August 2( 1875. The original 'letters patent, granted to Samuel W. Tyler, one of the complainants, are numbered 30,651, and dated November 13, 1860. The bill alleges that the defendant has infringed the third and fourth claims of the complainants' patent, which are as follows: "(3.) In a two-wheel harvesting machine, having an axle connecting the wheels, a support for .thedriving mechanism of the cutters, made. in one piece, the weight of which, and that Of the driving mechanism, being arranged between the main wheels and sustain.ed by the axle ,thereof, substantially as described and f(:lr the purposes· set forth. (4.) The piece, D, which supports the intermediate shafts and gearwheels, constructed substantially as described, to form a shield from the under side to the crank-shaft, e, substantially as " . The answer of the defendant admits that he has made sale within·the jurisdiction of the court of divers harvesters, which were manufactured and consigned to him for sale by the Sprague Mowing Machine Company, a foreign corporation, but claims that the said machines were lawfully constructed under divers letters patent owned by the company, or under which the said company was licensed. The defences relied upon at the hearing were two: (1) That complainants' patent was void for want. of novelty; (2) that the defendant's machine did not. infringe. .1. Whatis the complainants' invention, or atleast that portion of it which it is claimed the defendant infringes? It relates to improvements in harvesters. The evils or defects of the existing machines, that he endeavored to guard against and remedy, arose from the wooden frames, and the liability of the "gears and their shaft journals to become cramped and bound in their action by springing, warping, or wringing of the frame." To prevent this, he provides that all the gearing and shafts which communicate motion from the main gear-wheels or driving-wheels and axle thereof to the cutter, shall be borne on a rigid common support or frame, cast or formed in one piece, which consisted of a cast-iron
TYLER V. CRANE.
support, D, formed in one piece; and that portion of the said support, D, between the pinion and pitman-crank is hollowed out to receive the shaft, e, or is made convex on one side and concave on the other, with a horizontal projection on each Bide of the concavity, in order not only to give strength frame with a small amount of material, but also to afford a shii:l1;l to prevent the grass or grain from underneath winding around the shaft and clogging .it. ." At the date of the invention the ev.idence ShbWB that there were two kInds ofharvest.ers or use:' one having two driving or traction-wheels to aid iri communicating motton to the cutting apparatus, and other only one; the additional wheel in the machIne acting simply as a support to keep the frame in an upright position. Tyler took the existing two-wheel machine,aild aimed to correct the practical defects bf twisting ana warping by placing the gearing and shiftEl that impart the'motionto the cutter upon a rigid yomI)1on support or frame, formed 'in one piece, as above stated. The defendant says thatthis does not constitute invention; that thif two-wheeled machine was old, as is shown in the Aultman & Miller patent, (defendant's Exhibit A;) that the solid piece, acting as a support' for the driving mechanism, was applied by Russell to a machine, before the date of Tyler's invention, (defell.dant's Exhibit U,) and that, their combination in a single machine exhibits mec)lallical skill only, and is not the subject of a patent. The counsel for the complainants endeavor to meet this. objection in two ways, either of which, if successful, is a complete answer. They insist (1) that although the Russell patent antedates the complainants',Tyler was in fact the original and first inventor of the mechanism, which, it is alleged, he took from the'Russell machine.. But, if the testimony fails. to satisfy the court that Tyler's invention was older than the Russell patent, then (2) they claim that a new and' useful result has been produced by the combination of oldinstru-· mentalities, and that, whilst the result is not patentable, the· combination is which secures it. With regard to the first point, I am inclined to think that.
the weight of the testimony sustains the complainants' contention. It will be observed that this is not a contest Tyler &Russell as to which first made the invention, although it would seem from the drift of the defendant's evidence that was his impression. In a suit for infringement the patent act allows, 'as a defence, anticipati'on by other letters patent, or by a printed publication; and when the former is set up the complainant is permitted to show, if, he can, that the date of the actual invention was older than the 'date of the contesting patent; , but no emphasis ielaid upon the inquiry into the time when the inventor of the alleged prior patent first made his invention. The date of the Russell patent is ,October 12, 1858. What evidence has been adduced to show that Tyler's .invention was prior? , William H.Tolhurst, an experimental machinist, model and pattern maker, says that in the first part of the year 1858 hl;l built patterns for a, full-sized harvesting machine for Mr. Tyler from drawings that had been madein 1857:; that early in 1859 he constructed a model from 'thes'e patternsthe model patterns and drawings all containing the solid frame on'whichthe intermediate gearing between the drivingwheels and cutting apparatus is whit:jh is the device' that the defendant charges Tyler with into his, machine from Russell's patent. The witnese t st,ifie,S that he has no interest in the pending oontrovElrsy, and his testimony is as clear and reasonably definite as be xpected from, one who is speaking of tra,nsa!}tions which took place 20 years before. He is substantially confirmed int1J.ese dates by other witnesses for the ,complainanta, to-wit: Moorse, Marsh, McFarland, and Ross. ',' , But, in addition to this d.efence of, a priQrpatent,the .defendant also sets up the patentee Russell as.a persOn who had prior knowledge of the invention, covered by the Tyler patent. What' was the character, extent of hisknowl.edge by the e;vidence? Ruesell was called as a witness by the defendant. Having his Itttention called to his letters patent No. 21,777, granted October 12, 1858, and to the wherein they state:, ,"k represents ,the
main of it mower.':' This frame tfof cast in a single piece," etc.,-and,being referi'ed particularly tcdhe solid 'he is asked: ' "Question. (4) WhEm did you first conceive the invention? Answer. I made up m.y mind ill the spring' of 1857 that there had got to be a )lolid frame, and in June, 1857, that was th(3 time we were cutting hay, and that was the time I made my calculations how I woulq make the frame; I mean the solid frame. What caused me to think mote of it at that time was the trouble I found in the warping and' twisting of tlie wooden frame I was using. I had several talks at that time about the' arrangement of this frame. lit · · I had sketches showing the form of my solid frame substantially as shown in the drawings of the' Russell patent.
"Question. (8) When did you comnience to manufacture or
get ready to mahufacture the machine you speak of having the solid frame? When did you 'have ain8;chine completed having a solid frame, and when' was the mOdel made to be sent to the post-office? Answer. Well, I comm.enced to manufacture the 'full-sized machine in December, 1857. I cannot give the exact date when I had a machine completed. All I can say I had several machines'completed during the winter, before the spring opened. I made a model like ant's 'Russell Mower,' immediately after that agreement was' signed 'between me and Blake, Bernard & Co. (Date of agree¢ent, August 5, 1857.) Then there was a second model maile, cast from the Same pattern, that was sent to Washington. That was made in the winter of 1857-8." "QurJ8tion. (10) Did you or not ever use One of your machines, having the solid frame, in the field, or 'do you know of such use by others? Answer. Well, I liave used them, and I have known others to use them. The first hayin,g season that they were in use was in 1858; I mean the' 'first year that the solid frame was inuee." , on crass-examination, he thinks it was in June, 1858, that the first 'machine was used on the farm of either Thomas Motley or Richard S. Fay.' He took them there to see how
they worked. He does not kn()w what became of the machines after that; thinks he may have sold two of them. But the drawings and machine, from whiQh the model of the Tyler invention was constructed, were prior to this date. The former was .made in 1857, and the latter in the early part of 1858, and both anticipated the public use of the Russell invention, if such public use could be held to be anything more than an experiment. Such a view of the testimony, which accords to Tyler priorityof invention of solid frame, disposes of the question of lack of novelty, I1'nd relieves me from considering the other proposition of the complainants, that if all theelemeqts of the combination are oid, patent, nevertheless, is sustainable upon the new have followeil-the new combination. But, under this head, it may be proper to observe that the of, patent, its, hcie /9ase,fqr the coWpl,ainants; to faf;jts tl}!3 utility of the the combination, whicJ,l t,he testimony ipct;>rmration the Eloliq' ,into. the defendant(s or correl}t tipe,defects of or warping" which Tyler found ip. ,exiating organizati<;'llS the time of his, 'it ,clear that the compl'ainants"cll:\;im in this respect il'Il.ot 2. The only question is ,of The defendant's machine has two wheels, )tn axle connecting the wheels. It contains the solldpiecEl or frame, made of a single casting, for the support of the intermediate shaft and gearing, and is arranged between the main wheels, and is sustained by the axle. It differs from the mechanism of the complainants' only in dispensing with the use of the rectangular wooden frame, A A', BB', which the Tyler patent describes as a medium of suppart between the solid frame and' the axle. Whether the machine is made more or less efficient in operation by the use or non-use of such a support is not an important inquiry. The defendant cannot relieve himself from the charge of infringement by. directly,
and not mediately, attaching his solid piece to: the tWe the wheels. " There must be a. decree for the complainants, and a erence for an account, according to the prayer of the bill.
(District Oowrt, 8. D. Ne1/JYork. 1.
PERSONAL INJURY':"'UNLOADING CARGO- PRIVITY' OF CONTRACT "-
Where a stevedore, contracted with the steam-ship :R.to discharge her cargo of Spiegel iron, with the use of her de,rrick and chain, employed the libellant to assist in unloading, and. the latter, while so engaged in the lower hold, was severely injured by the falling of aloade.d tub, with part of the chain W;hich hlUlparted,the break being due to a defective link,," " Held, that the allegation in the answer that'the libellant and stevedore were co-servants of the respondent,' bding obviouslya'mi;take, and there being no privity between thelibellant and the respondent, the pillintpl' cannot .recover for a breach of contract; that lIuch a case it would seem the employer can only be held liable if the,defect in the article that caused the injury was of an imminently dangerous ,,nature; that even if the 'degree of negligence sufficient to make the respondent liable as employer were atill the plaintiif ca.nnOt recover,-the evidence showi,ng that the defective,chain exam.ned with ordinary care used, was 'apparently IItrongenough for the purpose intended, and that the defect was neither known to nor discoverable by the respondent by the exercise of BuchcIU''';
In Admiralty. W. R. Beebe, for libellant. W. W. Goodrich; for clli.imant. CHOATE, D. J. This is a. suit in rem to damages 'Sustained by the libellant on board the .British steam-ship Rheola while, she was lying at a dock in Brooklyn and, her cargo was being discharged. The libellant was in the em· ploy of the stevedore, and acting under his directions. He was in the lower hold, with several other men, engaged in filling the hoisting tubs with Spiegel iron, which they were then discharging. The tubs were hoisted by a chain rigged on a derrick. The derrick and chain belonged to the ship, and
:between the ship. and the stevedore the stevedore was to have the use of the derrick and the chain in4i!!charging tbe,ship. After one of the loaded tubs had been hauled up, above the deck, .and before it was swung clear of the hatch, the chain parted and the loaded tub and part of the chain fell back into the hold, injuring the libellant very severely. The question is whether the ship is liable for the damages. The test is whether the owner would be liable under the same circumstances at common law. The Germania, 9 Ben. 358. The libel alleges that the partingof the chain was caused by defects in it, and to its being unsuitable for the purpose to which it was devoted by the ship; that the accident was catlsed solely by the neglect of controlling s,aid ship in using, and permitting to be used such defective chain, and not, properly guarding and protecting the said chain and appurtenances. The answer denies the negligence alleged in the libel; avers that the defect in the chain was a latent defect, one which could not be known to the respondent on a careful examidation. It also avers contributory negligence on the part of the libellant, and alleges that the accident was caused by the negligence of his. co-servants, who were also, with him, servants of the owner of the ship. It was proved that the ship was about two years old; that she had, during that time, been engaged in bringing tin and iron f.rom Great Britain to New York; that she was furnished with three hoisting ehains of similar character at three of her hatches. These chains had been in use since the vessel was built in, discharging her cttrgoes.' They were such chains as were commonJY,l}sed on ships for that purpose. On the day bSfore the accident the chain at the hatch where this accident happened parted while they were hoisting tin ona platform. 'It was lifting at the time about 1,700 to 1,800 pounds.' The" stevedore, 'with the help of the mate, then unrOVEl the. chain from another hatch, and replaced it upon the hatch' where the accident happepe4,aItd with this chain they dommenced discharging Spiegelir()n. After several tubs had been hoisted this chain parted, doing the injury to the libel-
lant' for which this, suit, was ,brought. i :The weight' beinR lifted was about 11500 pounds. ' The 'link that broke was never found, though search w!l:s made for it. The chain was afterwards tested by a competent machinist, and broke at's, weight of seven tons. It was somewhat worn where the links came together, especially in the niiddle, and the testimony showed that it parted not far from the'middle. Before putting this chain on at the hatch where it 'p'artedan examination of it was made by the mate and the stevedore, by passing it along through the hand and examining thelink1!l,bending a few of the links. No defect was then discovered in it. ' The chain which broke the day before had had twooi' threetiines the use which this chain hl1dhad, and was more 'worn. Compi'!tent machinists, who examined the chain: after theacciaent, were of the opinion that it was safe for lifting from two to fottr tons. When they examined it they, of course, did not see the link that p&rted. Under these circumstances I think the libellant cannot recover. There was no privity of contract between the ship and the libellant. The averment in the answer that he and those ,working with him were co-servants of the'respdndent is obviously a mistake. It is not averred in the libel that libellant was in respondent's employ, and the contrarY: 'was proved by libellant himself. The liability, (therefore, if it exists, does not arise out of the braachhfany'cottttact between these parties; and in such case the' :rule seems to be that the owner of the defective or dangerous article, by reason olthe defect in which injury is done; 1s i llot liable uriless the defective thing is imminently dangerous. Loop 'v. Litcnji-dld, 42 N. Y. 351; Burke v. DeCastra Co; ll'HuIL 353; The Germania, ut supra. See, also, Longmee-d'v. Holladay, (} Eng.' L. and Eq. 562; The Aalsemund, 9 Ben.' '203. Even if the degree of negligence which would be sufficient to make tHe respondent liable as employer were enough, the testimony does not show such negligence. It mu&tbe sh6wnthat the defect was known to :the employer or "hoi1ld havebeen'dis. covered by him. De GrajJ.v. ·Rail1'oad'Co.76 N. Y: 125. See, also, Jones v. Railroad Co. 11 N. Y. wiry. Dig; 7.' '
This chain was undoubtedly defective. If it had not been it would not have broken as itdid at a weight of 1,500 pounds. But it would not be a proper conclusion from the testimony that the defect could have been disco"9'ered by any examination that could have made. The chain was not so worn down that it had become so weak from that cause alone as to break at any snch weight as it was then lifting. This is perfectly evident from t};1efact that the rest of the· chain withstood a strain of seven tons. There is, no evidence that the link which,partEjd, :was more worn than those which withstood this test; Indeed, it would be most unreasonable to suppose that one of the links was so exceptionally worn as to make it. incapable from thi,s,qause of lifting 1,500 pounds, when all the others were sufficient for lifting lileven tons. The broken link beiM lost, it never has been possible to discover since the accident what the defect was. I am satisfied that ordinary care was used by the respondent in its examination before it was put in use on the day it parted. It was, to all appearance, a fit and proper chain, strong enough for "the purpose to which it was devoted, and such an examination was made of it as was under the circumstances required in the exercise of ordinary care. Great reliance is placed by libellant's counsel upon the fact that the other chain broke the day before. This would have been a circumstance much more important if the chains had been subjected to the same or nearly the same use or wear, but they differed so much in this respect that the breaking of the other chain was not calculated to lead to the inference that this one was likely to prove defective. It is unnecessary to consider whether the libellant was himself negligent, and whether, if his negligence contributed to the injury, it would be a complete defence, or whether in that case, as in some other cases of marine torts, he could recover half his damages. See The Ohando8, 4 FED. REP. 645. He has undoubtedly received a very severe injury, but he cannot, consistently with established rules of law, recover the damages from this steam-ship. Libel dismissed.
FLINN V. DAGLEY.
(District Court, E. D. Michigan.
COltPORATION-LUBlLlTY OF STOCKHOLDERS.
Where defendants subscribed and agreed to pay certain sums money towards the increased capital stock of a Corporation, 'With the understanding that they were to receive stock therefor I3t'66% cents upon the dollar, and this arrangement was carried put, and certifi. cates for the stock delivered to them, held, that the assignee in bankruptcy of the corporation might still collect the remaining one-third of the par value of the stock for the benefit of its creditors.
In Equity. This was a bill in equity by the assignee of the Detroit Novelty Works to compel the payment of the balance due upon certain unpaid subscriptions to the stock of the company. The material facts were that the company was organized in 1859, with a capital stock of $50,000, divided into 2,000 shares of $25 each. In 1871 it was proposed to increase the stock of the cOIn.pany to $100,000, and the fol. lowing agreement was entered into by the defendants in this suit, or by those from whom the defendants hold their stock:
"The undersigned subscri1:e hereby the amount set opposite our respective names, and agree to pay the same towards the increased stock of the Detroit Novelty Work, in three equal instalments, on April 3, 1871, May 3, 1871, and June 3, 1871, (without grace,) it being understood that stock shall be issued to subscribers for such silbscriptions at 66% cents upon the dollar, and that a total amount of the subscriptions hereto shall be $20,000; and further, that negotiations upon the basis proposed by T. W. Misner, under date of March 31st shall be completed before these subscriptions shall be of binding force. Detroit, April 1, 1871."
This agreement was assented to by all the existing stock. holders of the company, and was carried out by the payment of the money, $20,000, and the issuance of the stock, $30,000. The corporation having gone into bankruptcy, and its assets proving insufficient to pay itl;J liabilitie;,the complainant in the suit, who had been chosen its assignee, filed this bill to compel the defendants, who aI:e stockholders of the company under the above subscription, to pay one-third of the par value of the increased stock taken under that agreement. On July 29, 1874, a majority of the directors of v.7,no.9-50