94 FEbERAL REPORTER.
The decree of the circuit court is reversed, and the case is remanded to that conrt, with directions to overrule the demurrer, with costs, lind to take such further proceedings in the suit as shall be proper, and not inconsistent with the opinion of this court.
I,ANSING et a1. v. STANISICS et a1. (Circuit Court of Appeals, Eighth Circuit. No. 1,100.
REVIEW-CONFLICTING EVIDENCE-FINDINGS OF FACT.
April 10, 1899.)
The findings of the chancellor on a question of fact will not be disturbed, unless clearly shown to be against the weight of evidence.
Appeal from the Circuit Court of the United States for the District of Nebraska. Suit by Theodore Stanisics, as trustee, against James F. Lansing and Emma Lansing, to foreclose a mortgage. Judgment for plaintiff, and defendants appeal. Affirmed. Lionel C. Burr (CharlesL. Burr, on brief), for appellants. Alfred W. Scott, for appellees. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. CALDWELL, Circuit Judge. The appellee filed in the court below his bill to foreclose a mortgage on lots in Lincoln, Neb., given to secure a note for $2,000, and $41.20 taxes. The appellants answered that. after the execution and deliverv of the note and mortgage, they were altered and changed by in each instrument the words "of Chicago, Ill.," and "in gold coin." Theconnection in which these words occur in the instrument is this: The note reBds:
"On the second day of April, 1898, I promise to pay Theodore Stanisics (trustee), of Ohicago, Ill., or order, two thousand (in gold coin) dollars."
It is claimed the italicized words are interpolated. The plaintiff denied that the instrument had been altered. The evidence on the issue thus raised is conflicting. The learned chancellor of the circuit court found the issue in favor of the plaintiff, and decreed a foreclosure of the mortgage. The finding of the chancellor in the lower court on a question of fact is presumptively right, and will not be disturbed unless the appellate court can clearly see that it is opposed to the weight of evidence. Snider v. Dobson, 40 U. S. App. 111, 21 C. C. A. 76, and 74 Fed 757. We have read very carefully all the evidence in this case, and are not able to say that the lower court erred in its finding; indeed, we think its finding is supported by the weight of the evidence. The decree of the circuit court is affirmed.
WESTD'GHOUSE ELECTRIC & MFG, CO, V, GENERAL ELECTRIC CO.
WESTINGHOUSE ELECTRIC & MANUFACTURING CO, v, GENERAL ELECTRIC CO, (Circuit Court, N, D. New York, 22, 1899,)
OF PATENTED ARTICLES.
A provision of a contract that it shall not be deemed to authorize either party to make sales of articles covered by patents owned by the other, cannot be construed as a covenant against the making of such sales, so as to afford a basis for a suit by one party to enjoin the other from making them, but it leaves the parties, as to such sales, as they stood before the contract was made. '
In Equity, On demurrer to bilL William D, Guthrie, M. B. Philipp, and Paul D. Cravath, for com· plainant, W, B. Hornblower and Frederick P. Fish, for defendant COXE, District Judge, This is a suit in equity in which the court acquii'es jurisdiction by rea80n of diverse citizenship, The bill seeks to enjoin the defendant from selling certain electrical devices to its licensee in New York City in allegfd violation of an agreement en, tered into between the parties to this action, March 31, 1896, The bill rests solely upon this agreement. Whatever right the complain· ant possesses mwt be found there. Unless the agreement forbids the contemplated sale the action must fall. If the defendant has cov· enanted not to make the sale the action is well brought; if it has not so covenanted the action is without foundation. This proposition is conceded on all sides. The agreement, so far as it is necessary to consider the same, may be epitomized as follows: (1) Each party grants to the other a license under all United States patents owned or controlled by it subject to outstanding licenses, (2) Territorial licenses and obligations existing thereunder are not affected by the sweeping cross·licenses. (3) Neither party is permitted to grant licenses to its territorial licensees under the patents of the other party. (4) The contract neither authorizes nor forbids the defend· ant to sell to its licensee in New York City apparatus covered by the patents of the complainant. The complainant is, of course, treated in the same manner. (5) These sales are recognized, but the party making them has no power to grant licenses to use or sell such apparatus under the patents of the other party. The cross-licenses granted by the agreement are thus qualified so as to preclude terri· toriallicensees from receiving licenses or rights under the patents of the other party. In short, the contract provides for a broad interchange of licenses, carefully guarding, however, the vested rights of existing licensees. As to them, the situation was delicate and complicated and it was evidently deemed best to leave it precisely as it existed before the contract was signed, They gained no new rights and lost no existing rights by reason of the agreement between their principals. That the defendant could have sold the multiphase apparatus to its Kew York licensee prior to March 31, 1896, is beyond dispute. It can do so now unless it has agreed that it will not make .such sales. The agreement will be searched in vain for such a.