Volume 291 — Federal Reporter

<p>Patents <§=328—1,160,666, claims 3-6, 9, for an improvement in trucks, held not infringed.</p> <p>The Stuebing patent. No. 1,160,666, claims 3-6, 9, which according to the file wrapper was allowed only after the applicant had stated his apparatus differed from the prior references, in that the releasing catch must be manually operated, so as to require the operator first to lift the load, thereby preventing the sudden fall of the elevated platform, held not infringed, notwithstanding general language used in the claims, by defendant’s device, which did not contain that feature.</p>

<p>I. Bankruptcy <S=>349— Facts held not to show payment of note by transaction of payee’s husband.</p> <p>Stipulated facts showing that both claimant and her husband had made loans to the banks, that the husband had in addition given a note for more than the claimant’s loan, which was put up as collateral and subsequently paid by the bankrupt, and thereafter the full amount of the husband’s loan repaid by the bankrupt, accompanied by a letter stating the payment was the amount advanced by the husband, and that the bankrupt continued to pay interest on the wife’s loan, held to show that the referee’s finding the wife’s loan was repaid by the transaction with the husband was erroneous.</p> <p>2, Bankruptcy <§=>467—Referee’s findings on stipulated facts not controlling.</p> <p>Where the facts are stipulated, so that the referee in bankruptcy did not see or hear the witnesses, the Circuit Court of Appeals is to make the deductions from the stipulated facts, and the finding of the referee is entitled to no more weight than those facts warrant.</p> <p>3. Corporations <§=>474—Bonds issued as collateral for loan are valid.</p> <p>Bonds of a corporation of the face value of $4,100 issued as collateral security for a loan of $4,000 are not issued in violation of Kev. St. Wis. 1878, § 1753, requiring bonds to be issued for not less than 75 cents on the dollar of their par value.</p>

<p>1. Shipping <@=>121 (I)—Ship held liable for damage to cargo as due to “unseaworthiness”; “peril of the sea.”</p> <p>Damage to cargo of a steamship by seawater, which escaped from a ballast tank through giving way of the gasket between the tank and cover, held on the evidence, which showed that the vessel encountered only such storms as were to be expected at the season, and was otherwise uninjured, not due to “perils of the sea,” but to “unseaworthiness,” which rendered her liable therefor.</p> <p>[Ed. Note. —For other definitions, see Words and Phrases, First and Second Series, Perils of the Sea; Unseaworthy.]</p> <p>2. Shipping <§=137—Damage to cargo held not caused by fault in management of vessel.</p> <p>The fact that leakage from a ballast tank drained into the bilges, and from there overflowed into the hold, where it damaged cargo, held not to exonerate the ship from liability, under Harter Act, § 3 (Comp. St. § 8031), on the ground that the damage was caused by failure to keep the bilges pumped, which was a fault in navigation.</p> <p>3. Shipping <@=I32(5)—Damage to cargo held due to sweating, and within exceptions in bilis of lading.</p> <p>Damage to shipment of paprika held, on the evidence, due to sweating, and within the exceptions in the bill of lading.</p>

In Admiralty. Libel by the Gulf & Southern Steamship Company, owner of the steamer William M. Tupper, against the steam tug Greenwich, with cross-libel by the Red Star Towing & Transportation Company, owner of the steam tug Greenwich, against the steamer William M. Tupper. Decree against each vessel for half damages.

<p>1. Patents <@=328—578,898, for process of purifying or reducing metals, held valid and infringed.</p> <p>The Goldschmidt patent No. 578,868, for a process for reducing or purifying certain metals, held valid and to cover the process of internally heating a small portion of the metal to be reduced, and, as so construed, infringed.</p> <p>2. Patents <@=160—Description of process “as set forth” requires construction in connection with specification.</p> <p>Where patent for process for reducing or purifying metals specifically claims heating of small portion of metal “as set forth,” the claim must be construed in connection with the specification, and the particulars of the specification are imported into the claim.</p> <p>3. Patents <@= 157(2)—Construction of claim which sustains and vitalizes patent should be adopted.</p> <p>Where more than one interpretation of the claims of a patent is possible, it is the general rule to adopt that construction which sustains and vitalizes the patent.</p> <p>4. Patents <@=! 18—Sufficient for patent for improvement to describe the improvement.</p> <p>A patent for an improvement on an existing art, being addressed to those skilled in the art, is sufficient if it describes the improvement without describing matters in the art not entering into the improvement.</p> <p>5. Patents <g=I6i—Meaning of words used in claims to be ascertained from the prior art.</p> <p>When claims of patent for process for reducing and purifying metals contains, as an element, requirement that metallic compound and aluminium used in reduction be in finely pulverized state, the meaning of the expression “finely pulverized” must be ascertained by resort to the prior art.</p> <p>6. Patents <@=178—Patentee, who made great step in advance, entitled to range of equivalents commensurate with invention.</p> <p>Though patentee’s invention was in a sense an improvement on another invention, where he made a great step in advance, he is not limited to the particular form described, hut entitled to range of equivalents commensurate with degree of his invention.</p>

<p>Street railroads <S=»58—Lessor held to have lost claim to insurance fund subsequently passing to receiver.</p> <p>A lessor of a street railway, with the real estate belonging thereto, in- • eluding car barns, under a lease requiring the lessee to keep the buildings insured and to use the proceeds of any insurance money received in repairing the buildings, is not entitled to the balance of a special fund derived from insurance payments for a fire loss on the buildings as against the receiver of the lessee, where it was undisputed that after the fire the lessee and its sublessee had expended more than the amount of the insurance in repairing and improving the buildings, and the lessor and lessee and the mortgage trustees of the latter had joined in a contract providing for the deposit of the insurance money in a fund to be paid out only on the order of the lessee and the trustees.</p>

<p>1. Taxation <@=535—Refund of taxes illegally collected held payable to party making payment.</p> <p>Under Tax Daw N. Y. (Laws 1909, c. 62), §§ 293, 296, authorizing taxes collected under an excessive assessment to be refunded to the petitioner or other person who shall have paid such tax, the purpose and object of the statute was to cause the amount to be paid back to the person who had really paid it in the first instance, regardless of whether he was petitioner in his own name for the correction of the assessment and the refund.</p> <p>2. Taxation <@=535—Provision in order on certiorari directing refund held not to change law as to refunding tax to party paying same.</p> <p>In a final order on certiorari finding a street railroad franchise assessment excessive and directing a refund, a provision that the refund “shall be ordered and allowed to the relator,” the lessor of the street railroad, was inaccurate surplusage, where the tax was not paid by lessor, and it cannot affect the provision of Tax Law N. Y. § 296, for refunding the taxes to the lessee company which paid it.</p> <p>3. Street railroads <@=58—Appointment of single receiver for lessors and lessee does not affect rights of parties to tax refund paid receiver.</p> <p>Where the same individual had been appointed receiver for a lessee of street railways and for numerous lessor companies, as was proper to enable him to operate the systems as a unit, as had been done in the past, that fact does not affect the determination of the right of the lessee or of the lessors to a tax refund paid to the receiver, under an agreement requiring it to be separately deposited until the right thereto was determined by the court.</p> <p>4. Street railroads <@=58—Collection of tax refund by joint receiver held; not to affect rights to proceeds.</p> <p>Where the same individual was receiver for the lessors and lessee of street railways, and as such received a warrant for refund of taxes illegally collected, the right to which was in dispute between the lessors and lessee, it was immaterial in which capacity the receiver actually took physical possession of the warrant under an agreement that'the proceeds were to be kept in a separate fund until the right thereto was determined by the court, and thereafter the claims of the lessee and of the lessors to that fund were presented to the court by different counsel representing interested parties.</p> <p>5. Street railroads <@=49—Lease held to authorize lessee to collect tax refund in name of lessor.</p> <p>Where a lease of street railways authorized the lessee to use the name of the lessor in and about the business and property, and any legal proceedings or 'suits necessary and requisite, the lessee had the right to bring certiorari proceedings in the name of the lessor for the reduction of a tax assessment, and to receive the warrant for refund made payable to the lessor and indorse the lessor’s name thereon.</p> <p>6. Street railroads <@=58—Power of lessee to collect refunds in name of lessor held not revoked by receivership.</p> <p>The power given the lessee by a street railroad lease of collecting in the name of the lessor the refund of taxes erroneously collected is not revoked by the appointment of a receiver for the lessor, even before such receiver has elected whether to affirm the lease, since the power was given the lessee for the very purpose of protecting it in carrying out the terms of the lease.</p> <p>7. Street railroads <§=>S8—Agreement under which tax refund was collected by receiver held! not to affect disposition of proceeds.</p> <p>Where a tax refund was due for taxes erroneously assessed on a leased street railroad, and there was a controversy between the lessor and lessee as to which was entitled to the fund, an agreement that the receiver of both lessor and lessee should receive the warrant and deposit the proceeds, subject to determination by the court as to the rights of the parties thereto, was in effect a sort of informal interpleader, which did not change in any way the rights of the respective parties to the fund.</p> <p>8. Street railroads <@=>58—Operation of lessee company held to be for account of lessors, or according as court may find.</p> <p>Where a receiver had been appointed for both the lessors and lessee of street railroads, and was operating the entire system during an extended time allowed him by the court to elect whether to affirm the leases, his operation of the lines of the several lessors was for the account of those companies, or as the court may subsequently find, according as the equities may appear.</p> <p>9. Street railroads <§=58—Proceeds of tax refund held in trust fund under mortgage.</p> <p>Where a street railroad company had issued adjustment mortgage bonds entitled to receive stipulated interest payments only from the net income of the company, with express provision it should be noncumulative, a refund to the receiver of the company of excess taxes collected during three previous years, in none of which the full amount of interest on the bonds had been paid, was not a trust fund in the hands of the receiver for payment of additional interest for those years.</p>

<p>In Equity. Suit by the United States against Sidney E. Knight.</p>

At Daw. Action by the Real Estate Title Insurance & Trust Company against Ephraim Lederer, Collector of Internal Revenue. On trial without jury on agreed statement of facts.

Petition to Revise Order of and Appeal from the District Court of the United States for the Northern District of Iowa; George C. Scott, Judge. Proceedings on the claim of P. B. Dawson and another, copartners as Winders & Dawson, against the Hanson & Tyler Auto Company, bankrupt, opposed by C. W. Gadd, trustee in bankruptcy. An order of the referee, disallowing the claim, was reversed by the District Judge, and the trustee appeals and brings a petition to revise.

<p>1. Patents <©=328—869,668, for pyrometer, held valid and infringed.</p> <p>The Thwing patent, No. 869,668, for pyrometer operated by use of thermo-electric couple, and designed to make allowance for variations in cold end of the couple, held valid and infringed.</p> <p>2. Patents <©=328—1,301,434 held Invalid, because anticipated.</p> <p>The Heitman patent, No. 1,301,434, held invalid, because anticipated.</p> <p>3. Patents <©=37—Invention not patentable, if lacking in novelty.</p> <p>If claimed invention lacks novelty, it is not patentable, whether there was invention or not.</p>

<p>In Equity. Bill by the Mercantile Trust Company, trustee, a Missouri corporation, to foreclose a general or second mortgage on the property of the Tennessee Central Railroad Company, a Tennessée corporation. Receivers appointed, and receivers’ certificates authorized and issued. Petition by Fourth & First National Bank and First Savings Bank & Trust Company, of Nashville, Tenn., holders of receivers’ certificates, against the Mississippi Valley Trust Company, a Missouri corporation, trustee under a prior lien or first mortgage on the property of the Tennessee Central Railroad Company, and the Southern Railway Company, a Virginia corporation, and the Illinois Central Railroad Company, an Illinois corporation, holders of the bonds thereby secured, for the purpose of having the receivers’ certificates declared a lien upon the corpus of the railroad property prior to that of the first mortgage. Hearing on pleadings and proof.</p>

<p>Patents <@=3328—1,036,288, for improvement in water gages, Sield invalid, and, if valid, not infringed.</p> <p>The Mauger patent, No. 1,036,289, for improvement in water gages, consisting chiefly of yoke or hook for holding parts of gage together and operating in the same way such hooks had been used in other connections. held void for lack of invention, and, if valid, limited to mechanical details shown therein, and not infringed.</p>

<p>Libels by the United States against one Essex coupé, claimed by Charles Volk and others, against one Buick roadster, claimed by Eugene Quick, and against one Paige auto, claimed by Harry Woodworth and others.</p>

Witmer, Judge. Suit by G. S. Dings & Co., Inc., against the Okeh Hosiery Mills, Inc., for damages for defendant’s failure to accept and pay for yam which it had contracted to buy from plaintiff. Judgment of nonsuit, and plaintiff brings error.

At Law. Action by Frances Elukowich, administratrix of Kaston Elukowich, deceased, against the New York, New Haven & Hartford Railroad Company. Verdict for defendant, and plaintiff moves for a new trial.

<p>1. Bankruptcy @=287(3)—Suit to recover preference maintainable in equity.</p> <p>Suit by trustees in bankruptcy to recover money preference is maintainable in equity, as against objection that there is complete and adequate remedy at law.</p> <p>2. Bankruptcy @=166(4)—Transferee held put on inquiry as to whether It would receive greater percentage of debt than other creditors.</p> <p>That bankrupt could only pay creditor $10,000 on debt of $20,000 for money loaned on security of motorcars, which bankrupt sold under circumstances believed by lender to be criminal, put lender on inquiry that it would receive greater percentage of its debt than other creditors.</p> <p>3. Bankruptcy @=I4Q(!)—Conditional sale void as against trustee, when third persons had no means of knowing that bankrupt did not ov/n motorcars.</p> <p>Conditional sale of motorcars to dealer, who was permitted to take possession for purpose of sale, was void as against dealer’s trustee in bankruptcy, when persons dealing with the dealer had no moans of knowing that the cars did not belong to it, and it was thus enabled to' obtain false credit.</p>

<p>1. Bankruptcy <@=>346—General statute as to priority of debts due United States held inapplicable.</p> <p>Eight of United States to priority in payment of taxes and "other debts due from bankrupt estate is governed by Bankruptcy Act, § 64, subsecs, “a” and “b” (Comp. St. § 9648), and Eev. St. § 3466 (Comp. St. § 6372), giving debts due the United States priority, does not apply.</p> <p>2. Bankruptcy <@=>347—Services of common-law assignees and accountants employed by them held entitled to allowance as preferred claims.</p> <p>Where services of common-law assignees carrying on bankrupt’s business before bankruptcy and expenses incurred by them were beneficial to estate, and services were such as trustee would have been compelled to render if the work had not been already done, their claim for their services and for services of accountants necessarily employed by them is entitled to allowance as preferred claim as part of costs of administration.</p> <p>3. Bankruptcy <@=>345—Claim of government and claim for wages not entitled to priority as against other preferred claims.</p> <p>Claim of Comptroller General of the United States against bankrupt for breach of contract and claims for wages earned within three months preceding filing of petition are not entitled to priority of payment as against costs of administration, claims of common-law assignees for services beneficial to the estate, or claims for taxes.</p> <p>4. Bankruptcy <@=>346—Claims for taxes due government and municipality on an equality;</p> <p>Under Bankruptcy Act. § 64, subsecs, “a” and “b” (Oomp. St. § 9348). claim for taxes due the United States has no priority over claim for taxes due a city, and they are on an equality.</p> <p>5. Bankruptcy <@=>347— Expenses of administration, including claims of common-law assignees, entitled to priority over claims for faxes.</p> <p>Under Bankruptcy Act, § 64, subsecs, “a” and “b” (Comp. St. § 9648), costs of administration, including expenses of common-law assignees in preserving estate, are entitled to priority over claims for taxes.</p>

<p>Criminal prosecution by the United States against Leroy W. Walter, James Strang, and others. On demurrer to indictment.</p>

<p>At Law. Petition by Jesse C. Rumsey for writ of habeas corpus.</p>

In Admiralty. Libel by Warner Moore and others against the steamship Milwaukee Bridge, in which the United States appeared as claimant and filed petition under the fifty-sixth admiralty rule, bringing in the respondents named therein as eventually liable. On exceptions by the respondents to the petition. Sur exceptions by the respondents to a petition under the fifty-sixth admiralty rule (267 Fed. xxi) bringing in such respondents as eventually liable.

<p>In Equity. Suit by Benjamin Guinness and others, partners as Ladenburg, Thalman & Co., against Thomas Woodnutt Miller, as Alien Property Custodian, and others, with six other cases.</p>

<p>In Equity. Suit by the Aluminum Goods Manufacturing Company against the Buckeye Aluminum Company.</p>

In Equity. Suits by Westinghouse Electric & Manufacturing Company and by the Central Union Trust Company of New York against the Brooklyn Rapid Transit Company and others. On motion to determine priority of lien between mortgagees. Abbreviations will be the same as those in 276 Fed. 152. Other abbreviations used will be obvious in the course of the opinion.

In Admiralty. Consolidated suits by J. I. Lamprecht and another against the Cleveland-Erieau Steamship Company, and by the Guardian Savings & Trust Company against the Cleveland-Erieau Steamship Company and another. On applications by the Niagara Laundry & Linen Supply Company and others for leave to file libels in rem in admiralty.

<p>1. Seamen <§==>21— Leaving of ship before completion of voyage with Intent not to return held “desertion.”</p> <p>The leaving of his ship by a seaman before completion of the voyage, and when the ship was in danger, with intent not to return, and with failure to return, held to constitute “desertion.”</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Desertion (in Maritime Law).]</p> <p>2. Seamen ®=»21— Payment of wages after desertion held not a waiver ef the desertion.</p> <p>Deposit by the master with a consul of wages due a seaman after his desertion, or a willingness to have him return, held not a waiver of the desertion, where the seaman left willfully, without intention of returning, and did not return.</p>

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; Sanford, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Michigan; Simons, Judge.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; Killits, Judge.</p>