608
FEDERAL REPORTER. STEAM STONE CUTTER CO. v. SHELDONS and others. (Oircuit Oourt, D. Vermont.
March 12,1883.)
1.
PATENT'LAw-INFRINGEMENT-CHOICE OF ACTIONS.
The sale of machines embodying the patented inventions of anofher to one for use, is an invasion of the patentee's rights, and such a conversion of his property as will render the party so seIling the invention liable in an action for tort. But in such case the plaintiff may waive the tort and sue in a88umpifit for the money received from the sale. 2. SAME-MEASURE OF DAMAGES-WAIVER.
In an action or proceeding for the money, the measure of damages would be the amount of money received, not the amount of damages done, and all righ t of recovery beyond that would be waived. This is the effect of waiving the tort. The recovery of satillfaction in either form would pass the right to that for which satisfaction was had, and there could be no damages beyond. Consequently, when the plaintiff has recovered and received satisfaction for the tOrt committed the title to so much of'his property as was wrongfully converted will have passed by the sale and conversion and no damages will accrue to him on account of further use of that property.
In Equity. Aldace F. Wa,lker, for orator. Walter G. Dunton, for defendants. WHEELER, J. This suit is brought for relief against of several patents owned by the orator by the use of maohines embodying the patented inventions bought by the defendants of the Windsor Manufacturing Company, with a guaranty of the right to use. The orator brought suit against the Windsor Manufacturing Company for infringement of the same patents, and olaimed to recover therefor the profits on these sales to the defendants here. To this the Windsor Manufacturing Company objected on account of the guaranty. Upon this question it was held that the liability on the guaranty would not relieve that company from the liability to account for the profits on these sales, for the reason that after a recovery and satisfaction clearly, if not after a recovery only, for those profits, the right to use those machines, would have passed to these defendants, so that they would not be liable to the orator for the use of the machines, and there would be no liability over on the guaranty to take away or reduce the profits; and a decree was passed for tIle recovery, among other things, of these profits. Steam Stone Gtttter Co. v. Windsor Manuf'g Go. 17 Blatchf. C. C. 24. The orator has recovered upon that decree some money, and has caused real estate to be set off on execution in satisfaction of the balance. Other persons
STEAM STONBCUTTER
SBELDONB.
609
claimed the real estate so set off, and resisted the taking of possession of it by the orator, and suits were brought by the orator against the several claimants of the land, in one of which the orator has recovered one parcel of the land by a final decree; and in another, the principal one, the orator has obtained a decree of .this court establishing the validity of the title by the levy, from which an appeal has been taken to the supreme court. The defendants now move for a dissolution of the injunction restraining the use"'Of th"e·'machines pending . the litigation, and the cause has been heard upon this motion. The defendants insist that the mere taking a decree for the profits of the sale was a ratification of the sale, and made it valid to pass the rights of the orator to everything covered by it belonging to the orator, the same as if it had been made by the orator. The orator claims that only actual beneficial satisfaction will affect the right to .follow the defendants for their infringement, and. that there are, or may be found to be, damages beyond the profits of the sale resulting from the use of the machines, if not restrained, and that the orator has the right to a continuance of the injunction to prevent . such damage. The full determination of all these questions does not appear to be necessary to the proper disposition of this motion. The patented inventions were property of the orator. When the Windsor Manufacturing Company sold machines embodying these inventions to the defendants for use it invaded the orator's rights an,d converted the orator's property to its own use. These acta were .tortious and an action would lie for these wrongs. As that company received money for the orator's property, the orator could waive the tort and sue in assumpsit for the money, or, what is the same in effect, proceed for an account of the money received. In an ac'tion or proceeding for the money the measure of damages would be the amount of money received, not the amount of damage done, and all right of recovery beyond that would be waived. This is the effect of wa.iving the tort. The recovery of satisfaction in either form would pass the right to that for which satisfaction was had, and there could be no damages beyond. Upon these principles, which are elementary, when the orator has recovered and received satisfaction for the tort committed by the sale and conversion of so much its property, its title to so much of its property will have passed, and no damages could accrue to it on account of further use of that property. By the satisfaction the machines would be freed fmm the orator's monopoly v.15,no.8-39
The mvy upolltlIe real: es.tarte . facie. a satisfaction of the decree, therefore the machines arepri1!la facie free.· The defendants, as the oaseJ!.ow have tl:J.e right to have the injunctiondissolveq'r is "V/tried byfurthep. developments or differentresu1tE\, compensation, can be made to the orator in the acdanger of. injustice than $he continuanoe of the counting injunction would involve. Motion SJanted and injunction di$olved.
Tam L
HAIUUBBUBG.-
fC7lf'll1Iit (J01f'1, B. D. Pen'1illlloania.. February AnMmALTY JUUISDIOTION-,;,PROC1UII1>Dm FOB NAVIGULE W.ATltRS' , ,
1883.1
ToRT
IN . eMBOli' DBATJr UPOK
In the admiralty courts of the United States, the death of a human being uPQn the high seas, or waters' from. the Sea, caused by negligence, may be complained of as an injury a1'ld the Wrong redressed uuder the general maritime law. TlI,eT()1J!anrl,a,S4Leg. Int. 394, followed, COLLISION":"LIMITATION OF ACTION-LmEL IN REM.
Where it death was caused by 8 collision, in 1877, Mar the Cross Rip UghtBhip;in Nantncket sound, the offending vessel being enrolled in Philadelphia, and a libel en rem was filed in the district court for the eastern district of Pennsylvania in 1882, by the widow and daughter of the man 80 killed, their ¢ause of action'does not depend upon the statute laws of either Massachusetts or 'Pennsylvania{and the limitation of one year in the'statutes of those states d(>es not operate as a bar.
Iri Admiraity. Appeal by the steamer tlarrisburg from the decree of the district court awarding $5 y lOOdamages against her npon a libel, filed by the widow and daughter of the late first officer of 'the schooner Tilton, whose drowning was caused bya collision The material facts are as follows: , Near the 'Cross Riplight-ship in Nantucket sound, a sound of the sea, embraced between the coast of Massachusetts and the islands of Martha's Vineyard and Nantucket, parts of Massachusetts, on the sixteenth of May, 1877, a collision occurred between the schooner Tilton and the steamer Harrisburg, which resulted in the loss of the schooner and the drowning of six of her crew. , A libel by the schooner was determined against the stestnl;lr, (9 FED. REP. 169,) and its liability for the consequences of the collision was not contested *Reported by Albert B. Guilbert, E.q., of the Philadelphia bar. Reversed. See 7 Sup. ct. Rep. 140.