FEDERAL ·REPORTER,
vol. 40.
eve'nthat it'the courtshould now issue a provisiollal injunction as prayed for in serious injury to the defendnnt without benefit to The motion for a provisional injunction will be denied; when the defendant files an undertaking, with security, to be aP'" proved by the clerk of the court, for the payment of any decree that may be rendered in favor of the complainants on final hearing.
CELLULOID MANUI"C CO. fl. CELLONITE MANUF'C CO. (Oircuit Oowrl,; 8. D. New York.
November 6, 1889.)
L
PATENTS FOR INVEN'l'IONS-PROFITS FROM t78E-FnrDINGS OF MASTER.
I'.
In an aotion to recover profits arising from the use of a pat.entsolvent, the malland during the same period treated it with other solvents, but, owing to a defect in the pyroxyline, its treatment with, the various solvents resulted in a product which could not be sold at a profit; but that, if defendants had not used the solvent in question, they would have used others; and that, by reason of the patent solvent being cheaper, defendan.ts saved a sum wbjch complainant Was entitled to recover as a profit. HeUl. that the conolusion of .the master was correct. tel' in ohanoeryfound that defendants uSE\d the solvent for treating
EQUITy-REPORT OF MASTER-FiNDINGS OF'FACT-WAIVE,R.
a.
The reason for the rule reqUiring objections, to the findings of a master in ohancery to be first made to him on the draft of his report does not fully obtain where the objeotion is.to ,the prinoipal finding of,faot, as he probably would not have changed his conclusion; but it is no hardship' to reqUire of the dissatisfied party that he so state his objections, or be to have waived them.
SAME-CONOLUSIONs OF LAW.
Where theniaster is correct in bis findings of fact, but errs as to conclusions ot law, the rule requiring exceptions to his report is not applicable.
In Equity. ,On exceptions to master's report. J. E.Hindon Hyde, for complainant. JfJhnR. Bennett,. for defendant. WALLACE, J. The exceptions filed by the defendant to the report of the mRster,towhom it was referred to take an account ,of damages and pr0fits, impugneveryimpor.UtI!t finding of the master upon matters of faet,and' also his conclp::;ioh of law upon the facts ·. The testimony taken before the master has been examined 8ufficientlyto ascertain that. it' justifies his' findings of fact. In tl;1eview most favorable to the fendant;. the master has only found against the defendant. upon fac,ts.as to which there iI; a fair conflict of testimony. His findings, therefore, should not be disturbed. Ma8t:m v. Oro8by, 3Woodb. & M. 258. Although the testintonybel\ring upon the exceptions bas been thus examined, it. is not to be understood that: the courtis of the opini<m.that the def ndant is entitledfu have 'these exceptions considered. In his draftreport the master made the same: findings,and no objel'ltiona to .them were interposed by the defendant: According to. the correct practioe; no exceP'" tions to a report can be considered which were not taken before the master in the form of objections to his draft of the report. ,The.
CELLULOID MANUF'G CO.". CELLONITE MANUF'G CO.
477
this rule of practice is that the master might have allowed theobjectio1l$, and corrected his report, if errors' had been pointed out to him; thus saving the parties ubnecessary expense,and the court unnecessary trouble. 2 Daniell, Ch. Pro (2dAmer. Ed.) 1483; Church v. Jaques, 3 Johns. Ch. 81; Byington v. Wood, 1 Paige, 145; Copeland v. Orane, 9 Pick, 73; srmy v. LivingsWn, 13 Pet. 359; Gaines v. New Orleans, 1 Woods, 104; Gordon v. Lewis, 2 Sum. 143; Nail Factmyv. C!<rrning, 6 Blatchf. 328. So rar as the cases of Hatch v. Railroad Co., 9 Fed Rep. 856, and Jennings v. Dolan, 29 Fed. Rep. 861, relax this rule of practice"they are incon,; sistent with the practice in this circuit, as recognized in the case of Nail Factmy v. Corning. When thecorrectness of the principal finding of the finding upon the ultimate question of fact referred to himis controverted, it is hardly to Le supposed that an objection to the draft report would have induced him to change his conclusion, and consequently the reason for therrile does not fully obtain; but it is no hardship to the di8Satisfied party to require him to state his objections, and, unless the precedents are to be disregarded, he must be deemed to waive any objection which he does not state. If, owing to accident, surprise, or any other sufficient excuse, the objections have not been properly taken before the master, the court may. upon an application showing the Jacts, recommit the report to the master, and allow the dissatisfied party to make and argue the objections before him, or may permit the exceptions to be filed as though the objections had been properly taken. The practice thus refened to does not preclude the defendant from being heard upon a question of the correctness of the legal conclusion reached by the inaster. Where the master, by his report, states the facts correctly, but errs as to the legal conclusion, the party against whom he errs is not required to except to the report, but may bring the questionto thea:ttention of the court upon further directions; or, if the report is made. pursuant to an interlocutory decree, when the cause comes on to be disposed of by a final decree. 2 Daniell, Ch. Pro 149. The cause remains under the control of the court until disposed of by a final decree, alld until then it can revise the interlocutory decree, or any proceedingin tbe cause; and it isits duty to 90rrect any error of the master affecting 'thelnerits, as well as any error of its own, properly brought to its knowledge. Wooster V. Handy, 22 Blatchf. 308, 21 Fed. Rep. 51; Pe-rkins v.Fourniquet, 6 How. 206; Fourniquet v. Perkins, 16 How. 82. There is nothing inconsistent with these well-settled rules of chancery practice in equity rule 83. The defeiida;nt insists that the master has erred in his conclusion of law that the defendant made gains, profits, and advantage by its use of the patented solvent in the treatment of pyroxyline. The master finds that for a period of several months in the year 1887 the defendant used the the patented solvent in the treatment of pyroxyline; that Bame period, and simultalleously, defendant used other solvents for treatp,yroxyline; that, owing to 11 defect in the pyroxyline;i,ts treatment the'yarious solveiits' unsuccessful, and. the resulting product was impetfec't;'and'could not be sold at a profif; that the 'productdftbe
.solve11-t.9;: that,ifthedefepdant,h,d not. uS6J hp,ve. used the sQlventsm lleu. of fo;rtl;J.e trell-tlllent of the pyroxylinei.· that,byretU!on.ot tqe cost of the paten.tedsplventtbanthe otheriSolvents,the saved the sum. ,which hetil1d$ the complainant iii!. entitled to From tpe ,defendant psed the these findings it isappa!:'ept that, patented ;lIolvent, the ueeof the othersohrentswassupers9ded in its in pyroxyline.: The case is therefore one where; by the use ()f the invention; the defendant has been'.8,!l.ved a greater loss than it .would have, To thi!'lextent it has derived bytbe use tbepatent. Railroad 00. v. Turrill, 94 V. S. 695. It follows, that the conclusion of the maater is correct. If the, master ened by an improper rejection of testi" mony offered by the defendant at, .the hearing before l1im, his error was Qne to beat once corrected bya motion to the court for an ord.erto compel him to receive. the evidence, alld is not the subject of an exception to his report. Schwarz v. $ears, Walk. (Mich.) 19; ,Wart,l v. Jewett, ld., 45; NaiJ. Factory v. Oorning,6 Blatchf.333. ' . .
tha:t
","as of
M
SCHWEBEL
v.
BOTHE.
CQ'W1't, E. D. M1.8so'Uri, E. D. November 8, 1889.) P.A.TBNT8 ]l'OB INVBNTIONS-}{ABKING UNPATBNTBD AUTIOL1II8.
The tact that a personha8 marked the words" Patent· applied for" on an unpatented.art¥lle does not render him liable under Rev. St. U. S. S 4901, which provides that any' person who marks upon an unpatented article the word "patent, "or any word imbOrting that the lame is patented. for the purpoSe of deceiving the publio, lhall be liable. etc. .
·. On demuner to petition. . This was a qui tam. action, .1,mlUght.under the. third paragraph of . tion 4901 of the Revised Statu,tes of the United States, and the complained of was that the marked certain wagon stake pocliets with the words 'for." The petition contained 201 counts, a penalty of $100 being demanded on eaph count. The clause in question of section 4901 of the Revised Statutea prohibits persons from affixing tqany unpatellted article "the word' patent,' or any other word importing that the same for the purpose ofdeceiving the the petition. W. B.H(Y(M1', for plaintiff,. , George H·. Knight, for defendant·.
to
must be strictly construed, so as not to impose a penalty,unless the act withiD; the of tpe stat,ute,and also clearly complained
.THAYER,J.; (orally.).
,