MAY
V.COUNTY
OF SAGINAW.
629
of the cars, or the extent of time during which they were used, were circumstances which governed the patentee in varying his price, except by inference; but it is plain that the length of time to be paid for would be important, and as circumstances might vary it this circumstance ought to be allowed its due weight in fixing the value of what was un-· lawfully taken. This value was a question of fact, in view of the usual price and its variations, and all the other circumstances. and within the province of the referee. His finding of the amount of the actual damages is conclusive. . He has also found interest from January 1, 1884, when a demand of payment appears to have been made, as a part of the uamages. Although damages do not carry interest as such, interest may be allowed as a part of the damages by the trier of fact in awarding damages. This is only a mode of stating the amount found. Littlefield v. Perry, 21 Wall. 205. Judgment on report for plaintiff for $550, and interest, $124.02, in all $674.02.
MAY v. SAGINAW Co. (Circuit Court, E. 1. 2.
n. Michigan.
October 17,1887.)
PATENTS FOR INVENTIONS-INFRINGEMENT-AcTION AGAINST COUNTY. COURTS-FEDERAL JURISDICTION-CLAIM AGAINST COUNTY.
An action will lie against a cOUIity for the infringement of a patent.
A state statute vesting in the board of supervisors of each county "exclusive power to adjust all claims against their respective counties" is no bar to a prosecution for a tort in the federal court.
3.
An assig-nment of an expired patent by an administrator of the patentee, purporting to convey "all the right, title. interest, claims, and demands whatsoever. which the estate has in, to, by, under, and through the said improvements and l ltters patent," covers the right to sue for and collect claims for past infringements. (Syllabu8 by the Court.)
PATENTS FOR INVENTIONS-aSSIGNMENT-SCOPE OF.
On Motion for New Trial. This was an action of trespass on the case, for the infringement of a patented improvement in the construction of prisons. The patent having expired, the case was begun at law, tried by a jury, and a, verdict rendered for the plaintiff in the sum of $1,500. Defendant thereupon moved for a new trial, upon the grounds stated in the opinion. M. C. Burch and George H. Lothrop, for plaintiff. C. F. Burtfm and O. J. Hunt, for defendant. BROWP, J. The first reason assigned for a new trial, v:iz., that a county cannot be sued for the infringement of a patent, is covered by the decision of Judge JACKSON, of this circuit, in May v. O<Yunty of Logan, 30 Fed. Rep. 250, and is no longer open to question in this court.
680
FEDERAL REPORTER.
The second grounu,tbatthecounty is not suable witho\1tshowing.notice of demand, is based upon that provision of the state constitution vesting in the board of supervisors "exclusive power * * * to adjust all claims againstiheir respective counties, and the sum so fixed and defined shall be subject to no appeal." This provision, however, has no application :to claims for torts; and was not intended to deprive the courts of common law of their original jurisdiction over such claims. Endrissv. County of Chippewa, 43 Mich. 317,5 N. W.Rep. 632. And even if it were, it would have no application to non-residents suing in the federal courts. Suydam v.Broadnax, 14 Pet. 67; Bank v. JoUy's Adm'rs, 18 How. 503. The cases of May v. Buchanan Co., 29 Fed. Rep. 469, and May v. Cas8 Co., 30 Fed. Rep. 762, are not in point, as the statutes are quite different. I have repeatedly upheld provisions similar to those of the Iowa Code. The third ground, that plaintiff showed no title to sue, is based upon the opinion of the circuit court for the Western district of Wisconsin, in May v. Juneau Co., 30 Fed. Rep. 241, in which it was held that the terms of the assignment to plaintiff of her husband's interest in the patent were not broad enough to cover claims for infringements prior to the assignment. This case is updoubtedly in point, and is entitled to our careful consideration. In coining to the conclusion which he did, that the assignment vested no title in the plaintiff, it seems to us that undue weight was given by the learned judge to the cases of MOO1'e v. Marsh, 7 Wall. 515; and Dibble v. Augur, 7 Blatchf. 86. In the first of these cases, Moore, the patentee, brought suit against Marsh for an infringement. Defendant pleaded that, after the date of the alleged infringement, the plaintiff had sold and assigned an undivided half of the patent. To this plea the plaintiff de.murred. The question, therefore, was whether an assignment by a patentee of his interest in the patent was a bar to an action by him to recover damages for an infringement committed bejo'te such transfer. The court. without hesitation, held that it was not. The case merely decides that a patentee, who has sold his right under a patent, may recover for an infringement, during the time he was the owner of it. It is singular that it should ever have been con-· troverted. In Dibble v. Augur, 7 Blatchf. 86, an opinion is expressed, which, at first blush, would seem to justify the inference that the authority is precisely in point. The case, however, ought to be read in connection with the peculiar facts which control·and modify, to a certain extent, the language oHhe judge who delivered the opinion. It was a bill filed by Dibble, as trustee, by three sewing-machine companies, cestuis que trust, and by Robertson, the patentee,against Augur, the defendant. The bill was founded upon a patent granted to Robertson in 1859 for an improvement in sewing-machines. During the life of the patent, and in May, 1868, Robertson assigned to Dibble "all his (said Robertson's) right, title, interest, claim, or demand whatsoever, in. to, or under the sa.id letters patent." On the same day an agteement was made between '.fhe three companies and Robertson, which was also signed by Dibble, reciting that the said companies were desirous of purchasing
MAY V. COUNTY
OF
SAGIXAW.
631
said patent, and providing: First, that Robertson should assign the patent to Dibble, and release the said companies and their customers from all claims for damages for infringing the same; and. second, that Robertson was to have the right, in the name of nibble or otherwise, to sue for all darhages for past infringements by others than the said cotnpanies, and also to sue for all damagel;l for future infringements by others than the said companies and their customers. On the sixteellth of June, 1868, Robertson,assigned to Dibble, as trustee for the three and Jor Robe;rtson, aU claims fot' past infringements. Upon the facts of ,this case, it was contended that,the right to recover for infringements of to nibble the patent cOUllIlitted prio;r to Fel:>ruary, 1868, did not by the two instruments of May $th",andthat, whenthe bill was flIed, the right to recover for such infringements was in Robertson alone, and that the particular remedy was by a suita.t ,law iIi his name. But the court held that the effect of the two papers of May 8th was to vest in Dibble, as trustee for the three companies, all Robertson's interest in the patent, and al&o to vest in him as trustee fot Robertson,all interest in claims for past and future infringements.' "The twopapers, "says Judge BLATCHFORD, "must be construed in ponnection with each other." It is true, he says that the words "claim or demand, whatsoever, in" to, or tlpder ,th,e patent," are not sufficient to cover, claims for past infringemenis; bilt he adds: , ,"Besides, the o,ther paper of the same date clearly shows that Robertsou did ,not intep.d toconveyto Dibble, individually or otherwise than as trustee for him, Robefts'O,n,any claim for,any past infringement of the patent against others than the three companies. ' ... '... III and as by the paper of the sixteenth of June, 1868, the title to the Claim in respect to the alleged infringements was ,transferred by Robel'tson to Dibble,as three companies and trustee',!ind of for Robel't.son, alld as the bill ill brought in the name of the cestuis que trust, it will be allowed to stand." Bearing in mind, that this .patent was still in force when assigned, and that the assignment was read in connection with the other instrument, reserving 'the righ t to the patentee to sue for past infringements, it seems to us. that it cannot be treated as a general authority for the proposition that the language of such an assignment can in no case refer to claims and demands for past infringement. ' Now let us examine the precise facta of this case. This patent was originally issued to EdwinMay, the husband of the plaintiff, who died February 27, 1880. On Jun:e 7, 1880, his executor having resigned, one McGinnis was appointed administrator de bonis non, with the will annexed. On December 31, 1881, the administrator filed his petition iI'l the pr{)bate court of Mariol1county, Indiana, setting forth that all the estate had been sold, and the proceeds distributed, "except the rights of said decedent in certain letters patent of the United States," and asked leave to sell "said rights P at private sale. Leave was granted to sell "such rights," in compliance with the prayer of the petitioner. The administrator thereupon proceeded to sell the same to the plaintiff, for the sum of $15, and on March 6, 1882, executed to her an assignment in which, after reciting that May, during his life-time, had obtained. certain
632
FEDERAL BEPORTER.
,
'etters patent for invention and discoveries, as follows, (here inserting a Xist and description of six patents,) the following language is used: "I, the said George F. McGinnis, as administrator of the estate of the said Edwin May, deceased, have sold, assigned, transferred, and set over, and do hereb;r sell, assign, transfer, and set over unto the said Sarah May, all the right, title, interest, claims, and demands whatsoever, which the said estate of said Edwin May, deceased, has in, to, by, under, and through the said im- " provements, and the letters patent, and extensions thereof therefor aforesaid." On the seventh day of March, 1882, the administrator filed his report of the sale, and brought the deed of assignment into court for approval; and the court, having examined such rl:lport, ratified and confirmed the sale; and, having examined the deed, ratified, confirmed, and the same.. If the deed was broader in its terms than the petition and order, which were the basis of the sale, such irregularity was evidently cured by the ,order of March, 1882, ratifying and confirming is a contract, and like all other contracts is the deed. This to be construed so as to. carry out the intention of the parties to it. Hendrie v. Sayles, 98U.S.. 546,554. Containing, as it did, a recital of the letters patent in suit, which had already expired when the petition was filed, there was nothing which could be conveyed by this assignment l:lXcapt the right to sue for J>ast infringements, and unless it be construed to cover this, the assignment as to that patent was a nullity. Bell v. MeOUllough, 1 Fish. Pat. Cas. 380. More than this. The words,('all * * *. claims and demands whatsoever, * * * underand through the said improvements, and the letters patent," to be given any effect at all, must relate to claims and demands for past infringements, since a bare assignment of the patto sue for all future infringements. In ent would carry with it the the very case of Moore v. Marsh,7 Wall. 515, the court observes, at page 522: "It is too plain for argument that a subsequent assignee or grantee can neither maintain an action in his own name, or be joined with the patentee in maintaining it for any infringement of the exclusive right committed before he became interested in the patent. Undoubtedly the assignee thereafter stands in the place of the patentee, both as to the right under the patent and future responsilJility. II It is a cardinal rule in the construction of all instruments that effect should, if possible, be given to all parts, and to every clause, ut res magis valeat quam pereat. Every word used is presumed to be employed for a purpose, and will not be treated as superfluous or redundant, if it can be given an efiect consistent with the general tenor of the instrument. Waldron v. Willa,rd, 17 N. Y.466j Sherman v. Elder, 24 N. Y. 381. For these -reasons we are constrained to differ with the learned judge in his constructiollof this assignment, and to hold that the right to SUtl for and collect for past infringements was the principal thing contemplated by the parties. There is' nothing of consequence in the remaining grounds of the motion, and a new trial must therefore be denied, and judgment entered -upon the verdict.
THE RALEIGH.
633
THE- RALEIGH.! MUDGETT "'. THE RALEIGH. WARD V. SAM11l. WILDER V. SAME.
(Diatrict qourt, S. D. New York. October 26,1887.) 1. MARITIME LIEN-SALE OJ!' VlllSSEL BY MASTER-TRANSFER OF LIEN TO PROCEEDS-DISCHARGE OF VESSEL. .
It is well settled that, if a sale by the master is warranted by the existing circumstances of the ship, and is made bona fide, any prio.r lien. upon her is transferred to the proceeds only, and the vessel cannot be held liable in the hands of a purchaser.
2.
SAME - SALE OF WRECKED VESSEL-ALLEGATIONS OF FRAUD-OPINION OF EXPERTS AS TO ADVISABILITY OF SALE.
8.
SAME-AGENT OF VESSEL-ADVANCEs-PRESUMPTION AS TO LIEN.
4. SAME-EVIDENCE OF AGREEMENT FOR. M. & Co. were general agents of the steam-ship R., though they had not ex-
clusive control of her. An action was brought by them against the vessel to recover advances made j,o her. There was no proof of any agreement that .they should have a lien on the vessel, or any circumstances indicating an hypothecation of the ship in their favor. Held, on the evidence, that they had no lien, and could not recover.
Hffiry D. Hotchkiss, for libelants Mudgett and Wilder. A. H. Alker, for libelant Ward. Owen Gray, for claimants.
BROWN, J. The libelants claim a lien upon the Raleigh for advances and supplies furnished by them rellpectively on account of the steamship during the year 1885 January, 1886. On the twentieth of January, 1886, while the steamer was on a voyage from Baltimore to New York, she was driven ashore by ice in the Chesapeake bay, and afterwards abandoned and sold under the master's authority. One Petze, the claimant, became the purchaser. He subsequently raised and repaired her at an expense of about $11,000, about a year before the above libels were filed. It is well settled that, if a sale by the master is warranted by the existing circumstances of the ship, and was made bona fide, any prior lien upon her would be transferred to the proceeds only; and that the vessel could not be held liable in the hands of the purchaser. The libelants contend that the circumstances of this case did not justify a sale; and, secondly, that the sale itself was fraudulent, and made in bad faith, and for the benefit of the master, who, it is 'claimed, became interested in lReported by Edward G. Benedict, Esq., of the New York bar.