269'
REPORTEB.
pawl, although to the latter result it may contribute in a slight degree. On behalf of the defendants it iscontended that, in VIeW of the state of the art, the patent of the complainant can be sustained only by limiting it to the specific oonstruction and combination of the devices shown; that such in fact is his own statement of invention, making the gravitating function of the pawl, as a substitute for a spring, its essential feature; and that the independent function of causing thereby a more certain engagement of its teeth with those of the rackbar is old inkiIidred devices, and not one newly called into existence by the employment of the pawl in a lifting-jack, nor due to its use in that connection, but is inherent in the same construction of parts used for analogous purposes. In support of this view the defendants' counsel presents a number of early patents for lilting-jacks, elevatorcages, sash.holders, etc. Without referring in detail to the devices exhibited to show the state of the art, I am satisfied that the mechanical principles embodied in the invention of complainant were old and well known in constructions used for the same or analogous purposes; and that his real invention consisted in the construction and arrangement of certain devices in combination by which he adapted those principles in a particular manner to produce his lifting-jack. The claim in question mnst be limited to the combination of described parts, constructed and operating in the manner shown; that is, a pawl provided with sidfllugs, moving by gravity alone, between and in inclined guideways in the side walls of the frame. The bill will be dismissed, with costs, as the defendants do not infringe such claim.
PELHAM
v.
EDELl\fEYER.
(Uircuit Court, 8. D. New York.
January, 1883.)
1.
PATENTS FOR INVENTION-PLEADINGs-DEMURRER.
Courts will refuse to decree unless the substantial groundwork of the case in which relief is sought is distinctly alleged in the complaint; but. objections to the form of a pleading should be taken by demurrer, and after proof has been taken the bill will not be critically studied to find defects in the form ot the pleading. 2. SAME-EVIDENCE.
Where the proof shows that the complainant had no legal or equitable interest in the matter in controversy, the bill will be dismissed.
PELHAM V. EDELMEYBB.
268
3. INFRINGERS-DEFENSES OF.
Where the defendants were treated In the complaint M ordinary Infringers, they were allowed to avail themselves of any defense open to defendants charged with infringement.
Kitchen et Brown, for plaintiff. J. P. Fitch, for defendants.
Upon the merits of this case it is by no means clear that the agreement for a license does not protect ants in the right to make and rent to builders any elevators which Pelham. embody the invention secured by the patent to Thomas While that agreement contains clauses restricting the licensee to the right to make and rent a particular class of elevators, there are other clauses which indicate that what the parties really had in view was the compromise of an existing suit and an adjustment of future relations, which would permit bothto make and rent to others all elevators covered by the patent, fixed basis of compensation. Why should the parties agree upon a scale of prices to be charged and collected upon all elevators, and upon liquidated damages for a breach of the coudition, if the defendants were expected to be restricted to elevators of a special structure.? .If, as would seem to be improbable, the contracts made by the first party and excepted from the operation of the agreement were for the rental of elevators differing in struCture from the infringing elevator, the conclusion would be almost irresistible that the agreement was intended to adjust the rights of the parties respecting the future making and renting of all elevators embodying the patented invention. It is unnecessary, however it would be legitimate, to determine the controversy upon the main question, because there is a fatal objection to the complainant's. case which must defeat his cause of action. So far as appears by the· allegations ·in the bill and by the proofs, the title to the patent in suit is not vested in the complainant. Both upon the facts alleged in the bill and disclosed by the proofs, the letters patent became the property of Phebe Pelham, as administratrix of the patentee, as part of his estate. The complainant is the sale devisee and legatee under the will of Phebe Pelham, but the will does not purport to bequeath any property held by her in her representative capacity, and of course could not vest the title to such property in the legatee if it assumed to do so. Manifestly the objection taken for the first time at the hearing of the cause might have been taken by a demurrer to the bill. If it involved only a question of pleading, and the bill were not defective WALLACE,
J.
264:
FEDERAL REPORTER.
in a matter of substance not having been taken by demurrer, tbe objection would not be available now. The objection is not that there is a defect of parties, but that the complainant has no interest in the subject of the controversy. As to all merely formal defects in the bill the objection must be taken by demurrer. So, also, when there is a defect of parties appearing upon the face of the bill, the defendant must resort to a demurrer or the court is at liberty to make a decree saving the rights of the absent parties. If the proofs disclosed title in the complainant, it would be open to consideration whether the general allegation in the bill, that the complainant is the owner of the patent, would be held sufficient to authorize a decree- notwithstanding that allegation is conclusion of law based upon qualifying facts that negative it. The rule is familiar that the court will refuse to decree unless the substantial groundwork of the case in which relief is sought is distinctlyalleged in the bill; but after proofs have been taken the bill will not be studied critically to find defects, and the most liberal construction will be placed upon the allegations consistent with established l'ules of pleading. The question here, however, is one of evidence rather than one of pleading. The complainant has failed to show himself possessed of any legal or equitable interest in the letters patent on which the suit is founded. If the bill were perfect the court could not decree for complainant upon the proofs. If the complainant were suing upon the agreement for a license the defendants might not be permitted to deny complainant's title to the patent. But the bill assumes to treat defendants as ordinary infringers. They are therefore at liberty to avail themselves of any defense open to defendants who are charged with infringement. The bill must therefore be dismissed. As this result may be attributable to flo slip in practice, the dismissal will be without prejudice to complainant's right to file another bill.
a
GROKSTADT 11. WITTHOrJ'.
265
BARKER .". TODD.
(Oireuit Court, N. D. New York. 1. ANNULMENT OF DECREE.
November 29,1882.)
It being made to appear to the court by the petition ohtrangers to the record that a decree was obtained by collusion between complainant and defendant, it is annulled and the cause dismissed. 2. BAUKER PATENT FOR CHAIN-PUMPS.
Vacation of judgment in favor of Barker reissue No. 6,531, for chain pumps, reported. in 13 FED. REP. 473.
The decision in Barker v. Todd, reported in 13 FED. REP. 473, has since been set aside upon the application of the L. M. Rumsey Manufacturing Company, and the case finally disposed of by the following decree. Parkinson &; Parkinson, for L. M. Rumsey Manufacturing Company. R. H. Duell, for Barker. WALLACE, J. This cause having been heard upon the petition of the L. M. Rumsey Manufacturing Company et at. to vacate and annul the decree heretofore entered herein, and upon affidavits and arguments of counsel in behalf of the said petitioners and the said complainant, Barker, and it appearing to the court that the proceedings therein were procured by collusion between the complainant, Barker, and the defendant, Todd, and that there was no real controversy between them, it is hereby ordered, adjudged, and decreed that the said decree, to·wit, the decree entered on or about the twelfth day of September, 1882, be and the same is hereby vacated and annulled, and that this cause be dismissed. It is further ordered that said Barker pay the disburseIllents incurred in the said application for vacation of said decree. .
GRONSTADT
WITTHOFJ'.
(DiBtriet Court, S. D. New York.
February 8,1883.)
In the absence of any different usage of the port, or other Indication In the bill of lading, a vessel is bound to land her cargo at some suitable wharf. 2. SAME-BILLS OF LADING-How OONSTRUED.
Bills of lading, like other commercial instruments, when indefinite in their terms, are to be construed reasonably according to the presumed intention to be gathered from the situation of the parties, and their relations to the ship
