52 F. 920 -

V20

REPORTER I

voL 52.

ce.rtain. no man being able tell, ill advan,ce ""hat in fact is. or what any jury wIll find to be, a reasonable If this were the construction to be placed upon this act as a whole. it would certainly be obnoxious to complainant's criticism. for no penall"w can be llu8tajlled unless it,s mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he m,ay not do under it. In Dwar. St. 652. it is laid down' that it is impossible to dissent from the doctrine of Lotd Coke thattbe acts of parliament oUg'ht to be ,clearly,and not and 4l/.rkly, penned, i!1 legal . See, also, U. $lIarp. Pet. C. C. 122;, The Enterprise. 1 Pame. 34; Blab.' St,'Crimes. § 41; Lieb. ltetm. 156. In this the author quotes the law of the Chlnl'lse 'Penal Code. whichreadB' as follows: " Whoever is guilty of improper of such as, is contrMY,to the spiri:t of the laws, though not a breach ofanYllpeCific part of it,sballbe}>i:mished at least forty blows; and when the imprp'prlety'is of a serious nature. with eighty blows.' There is very little differenc«kbetiweensuch a statute and one whichwQuld make it a criminal offense to mMe than a reasonable ,rate. See another illustration in Ex parte Jackson,
45 Ark.lp8. "

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that doctrine In thiE! caSe, ,and eliminating the idea that the is a standard of of the local rate, there is noth,a Q( [guilty against defendant." Judgment will ,reversed, and,. the case remanded for further proceedings. . .
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SNOWl>LOW Co. et at.v.

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VULCAN' IRON WORKs.

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Wirc'UitOourt of Appeals, Efghth CirCuit. Ootober 17,1892J . ,., No. 126.
1. CONTRACTB....]\b.NUFACTURBR'S. W ARUANTY. Where 'a' contractor agrees to build an lIxperlmental machine. the first under a new, patent, on plallll to be approved by the patentee. with warranty for the workmanship and materials of his own shop, but expressly excepting from the warranty the boiler and other parts bought outside. and the workint< of the machine as a whole. the relativo capacity .of the boiler and engines is not a matter of the contractor's workmanship, nor is he liable for an error therein. 2. ACTION ON BOND-VALUATION. In Illinois. when an ext>erimental machine, nearly complete. is replevied from the person under contract to make it, at a valuation of $10,000 by the such valuation is ,conclusive upon him in an action on the replevin bond, in tbe'abSence of evidence that he was misled. and made it in ignorance of the aetl1al condition of the property. 48 Fed. Rep. 652, affirmed. 8. SAME. In any e.vent; where the replevisor removed the property to a distant place, thus making a fair valuation impossible. and sold it and the patent right for $16.000, the value of the royalty, wholly in the control of the replevisor, having beEln at the time of replevin. his own valuation is conclusive upon the replevisor.

In Error to tlie Circuit Court of the United States for the District of Minnesota. ' bond by the Vulcan Iron Works against the Cyclone Steam SnowPlow Company and C. P. Judgment for plaintiff. Motion for'll. new trial denied. 48 Fed. Rep. 652. Defendants bring error. AtfuUled.

CYCLONE STEAMSNOWPI:O-W CO.

'V.

VULCAN' IRON WORKS.

921'

. M. P.Brewer, (F. B. Hart, John Day Smith, and V'tetor Linley, on· the brIef,) for plaintiffs in error. ' F. B. Kellogg, (Keith, Evans, TlwmpsOn & Fairchild and Davis, Kellogg & Severance, on the brief,) for defElIidant in error. Before CALDWELL and SANBORN, Circuit Jndges, and SHIRAS, District Judge.
SHIRAS, District Judge. From the record in this cause it appears that E. P. Caldwell was the inventor and patentee of a snowplow called the II Cyclone Steam Snowplow j" that a corporation by the name of the Cyclone Steam Snowplow Company was organized\lilder the laws Of the state of Minnesota for the purpose of manufacturing and selling plows under the Caldwell patentj that on the 27th of December, 1888, a contract in writing was entered into between said snowplow company and the Vulcan Iron Works, of Chicago, a corporation organized under the laws of the state of Illinois, whereby the latter company agreed to construct a rotary steam snowplow according to the model and data furnished by the snowplow company, it being further agreed that E. P. Caldwell, the patentee, was to represent the snowplow company in the preparation of plans and drawings and in the construction of the plow, for which the iron works company was to be paid the cost, with 10 per cent. added thereto. It was also agreed that the boiler, trucks, and such other parts of the >nachinery as might be needed to expedite the completion of the work, should be bought of other parties. and be fitted to their places in the plow by the iron works company, it being' further agreed "that the said Vulcan Iron Works guaranty the workmanship and materials made up in their own shops, but do not guaranty boiler and other parts bought outside, nor the working of the machine as a whole." The iron works company proceeded with the construction of the plow under this contract, and had thp. same substantially completed en the 11th day of October, 1889, when the snowplow company brought .an action of replevin in the United States circuit court in and for the northern district of Illinois against the iron works company, and thereby obtained possession of the plow, which was taken to California, and was subsequently sold to the Southern Pacific Railroad Company. In the affidavit filed in the replevin suit, and in the declaration therein filed, the value of the plow was stated to be $10,000, and a bond in the sum of $20,000 was given by the snowplow company, the statutes of Illinois providing that the plaintiff in the replevin action shall give a bond, with sureties, in a sum double the value of the property sought to be taken upon the writ in the case. On January 24, 1890, the action in replevin being called for trial, the snowplow company dismissed the same, and a judgment for the return of the property was entered in favor of the defendant in that action. The plow was not returned, and thereupon the iron works company commenced this action :against the snowplow company and C. P. Jones, one of the sureties on the replevin bond, the same being brought in the United States circuit

922

co-urt for The defendan,ts in thisl;tction. among other things, pleaded thaf, by the terms of· written ¢ontract thll iron works compIlIlY, the latter had guarantied the and materials made 'tIp ill its own; shoP"lJ:ld.that said workmllnship included the proper adjtI,stnwnt. adaptation; and mechaniCal construction of the machinery designed to propel and operate the patented device, but that the machinery furnished was n<:>t gUlliTantie4, lUlcl 1,1pon tIle tria;l the snowplow pompaqy introduced ,to sh,owthat the, boUer, did not have,suftiCiElntcapacity for it, rwhicbreason damages were claimed on snoW.p]pw compl'\ny., .,:tlle contention of the plow com.the ve capacitj,ofthe,boilers and W80S' left iron works company, and therefore it was a matt\!l;l'1 within the' terms of the gUl;tranty contained in the, trial that the guaranty of the made. up in the; shops of the iron works OOJllpfl.J:1YJQidnot,incllldethe matter,pfthe capacity of th,e boiler, and $il;> is the first eqotpresented, in fpe argument before this court. It. ,:apPel\fS frOlD the, evidence thllttpe,plow in question was the first one manufactured lUlder the Caldwell patent. The Vulcan Iron WorksCoPlpany did itself manufacturer of snowplows, Ilond held tllat: it, had agl"fledtp manufacture a plow reasonably 1jit for the purpose It was intended to. be applied to. In fact, the machil;le,tobe was an experimental plow. It is provided in · Q(>ntract that, the iron company should prepare general and the model and other data furnished by the snowplow C9mpaJ;ly, the drawings to pe approved by the latter company before the work was entered upon. It thus appears that, the model and other necessary data were to be furnished by the snowplow QOmpany, ba,sed ,upon wpich the works company was to prepare the anq submit the ,same for the approval of the .snowplow cOD;l,pany. In yiew of these provisions in the contract, the be beYQnd its express terms, pll¥:ed, in the contract so as to limit the liability of for it was the iron WO*8: opmpany·. It reads ,as. follows: "It is understood that theslj.id'Vulcan: Irpn guaranty the workmanspip apd materials made up in ;their ownsh,9ps, but do not guaranty boile,.. and other parts bought ol1:tl;ide, ,nor the, working of the ,machine as a whole." As. the boiler was not .made by the iron works company,that compariy did not guaranty the ,wqrkmanshipormaterials therein found, and, if, according U;l the of plainWfin error, the word ship" is to J>e to <.:ast upo,n the iron works company the ., duty of furnishing a boiler of ,to meet the d,emands . made Upon it ill the actual running,pf the plow, it could be as well claimedtb&tthedutY'Y8s cast, upon the iron works company of furnishing sufficient power to meet thli). demands upon them, and screws and fans of sufficient relative size, and thus, by mere inference, the iron WQrks company would be held bound to furnish a ma-

CYCLONE STEAM SNOWPLOW

CO.

'II. VUMAN IRON WORKS.

923

chine, aU the parts of which were adequate 'for' the work demanded of them, of proper: relative capacity properly fitted together, whereas it is expressly stll; that the iron works company did not guaranty ed' the working of the machine as a whole. In our judgment the trial court ruled rightly in holding that the guaranty found in the written contract did not extend to such matters as the relative capacity of the boiler and . engines. The next question arising upon the errors assigned,al1d the one mainly relied on by plaintiff in error, is based upon 'the ruling made by the trial co'urt, to the effect that the defendartts in that court were bound by (he valuation placed upon the' replevied' property in the affidavit, writ, bond, and declaration filed in the replevin action. On behalf of plaintiffs in error it is contended that' the statutes of Illinois do not require 1\' plaintiff in replevin to affix a value to the property sought to be recovered,and that the statements found in the affidavit and declaration in the replevin action, as to the value of the property, are to be deemed to be merely admissions, which are receivable in evidence, but do not estop the parties making the same from proving the prt>perty to be of less value than that stated in such affidavit and declaration, and ill support of this contention counsel cite the cases of Wood v. May, 3 Uranch, C. C. 172; West v. Caldwell,23 N. J. Law, 739; Peacock v. Haney, 37 N. J. Law, 181; Gibbsv. Bartlett, 2 Watts &S. 35; Muhling v. Ganeman,4 Baxt. 88; Briggs v. WisweU, 56 N. H.319; Wrightv. Quirk, 105 Mass. 44. On part of the defendant in error it is contended that in;this jurisdiction this question is set at rest by the ruling t>f the supreme court of the United States in Ice Cb. v. Webster, 125 U. S. 426, 8 Sup. Ct. Rep. 947; .it being claimed that the supreme court therein holds that a plaintiff in replevin and the sureties on the replevin bond are conclusively bound by the valuation put upon the property in the writ and bond. In that case the trial court refused to admit evidence, offered on behalf of the plaintiff in replevin and the sureties on the bond, tending to show that the property taken under the writ was less in value than the sum stated in the writ and bond, and the supreme court affirmed the action of the trial court. On part of the plaintiffs in error, it is argued that, owing to the special facts involved in that cause, it cannot be held that the supreme court intended to declare broadly that under all circumstances a plaintiff in replevin and his sureties are concluded by the statement of the value of the property found in the writ and bond, and that, if the recital of value is to be deemed to be anything more than prima facie evidence, it should not beheld to be conclusive in cases wherein it appears that the valuation was fixed by the plaintiff in raplevin under a mistake of facts, whereby he was misled in estimating the value of the property sought to be replevied. There is certainly muchto be said in support of the proposition that, if the valuation of p'ropei'ty in replevin proceedings has been stated in the writ and bond under a mistake as to the actual condition of the property. it should not be held to be conclusive against the plaintiff in replevin and his

FEDERAL

voL 52.

• . ;For illustration, if a person seeks to replevy grain stored in
  or fruit shipped in cars, and states the value on the basis or fruit,but whentak8n on the writ it appears that the jori'ruit has become heated or decayed, so that the plaintiff in renot in fact re.ceivethe property in the condition. he had a to expect it to, be in, ,it.ls difficult'to see why it should not be fair. open to the plaintiff in the replevin suit and his sureties on the bond to show tllis fact when sued on the bond. We do not, however, deem it tq determine in t4is :case the construction to be placed on the ruling madEl by the supreme court in Ice Co. v. Webster. If it be true, as contended l:>Y the defendant in 'Elrror, that the supreme court has therein declared,thEl. rule to be that Updflr all circumstances the statement of value !let forth in. the writ and bond .is conclusive against the plaintiff in replevin and his sureties whell suit is brought upon the bond, then unquestionably the ruling in tile trial court in this particular was correct. If, howeyer, the rule is t!;lat,.it is open to the plaintiff in replevin and to prove that;the statement of value was based upon the his assumption that the sought to be replevied was in good and sound, cond'ition, whereas, in fact, the property when replevied was not. condition, and that. the .plaintiff in replevin, without fault on his part, he beipg in fact igJ;lorl1pt of the actual condition of the property, was; thus misledinestimating,the value thereof, the evidence in this case does I).ot show of facts justifying, the of this rule. The snowplow company, when about to replevy the plow, knew its, copditioll,atthat how it was constructed, the size of the bWJ.er and engines, and facts necessary to enable the com pany to place a value upon th-l3PToperty as it then existed. The evidence of the pla,intiffs in ,error did not tend to prove that, whe,n.the machinewasqeli:vered to the snowplow company under the writ .of replevin, it was in construction or materials any other or differ.ent from. what. it was understood. to be when the estimate of. value was forth in the and. declaration, a,nd inferentially in the bqnd filild. in ,the replevin proceedings. , . :Furthermore, in any that ma.y be taken of the force to be given ,recitals of value in the writ or bond, as against the plaintiff in replevin am} the suretief;! on the we hold that, under the peculiar facts of this cause, the ruling of the trial court effectuated justice between the litigapts. It is an admitted. fact that the plow was manufactured under the Caldwell patent, andwA,\'l protected thereby. In determining its value at the time it was replevied, not only was its cost an element to be considered, but also the price to be paid to the patentee as a royalty or for a license for the right to use the machine would necessarily enter into the .question of v81ue, and the determination of the amount to be added to the cost of manufacture to cover this item was necessarily solely within the .control oCthe snowplow company. Furthermore, when the plow was taken from the possession of the iron works company it was taken by the snowplo,w company to California, and used upon the lines of railway in that statll,. and after certain changes and repairs had been l!n. of
  

CYCLONE STEAM SNOWPLOW CO.

v.

VULCAN IRON WORKS.

925

made therein it was sold. with the patent right, to the Southern Pacific Railway Company for the BU,m 0f$16,000. In so doing the snowplow company deprived the iron' works company of all reasonable means of ascertaining the practical working of the machine, or of estimating its value from.the' results of its work, except at great cost of time and money. As this plow was the only one that, up to that date at least, had been manufactured under the Caldwell patent, its removal to such a distance from the city of Chicago deprived the iron works company'of all fair opportunity of having skilled witnesser;; examine it as a means of ascertaining its value. Under such circumstances the snowplow company has no just cause of complaint, in that the trial court held that it was bound by the valuation it placed upon the patented machine in the affidavit, writ, and declaration filed in the replevin suit. The valuation thus fixed was the sum of $10,000, or but a little over one half of the cost of manufacture, lind the recovery of the defendant in error was limited to the balance due tbe iron works company for the construction of the tnachine, to wit, tbe sum of $8,527.57. Tbe result of tbe judgment entered in tbe trial court is to compel the snowplow company to pay the balance due the iron works company for the manufacture of the plow, and certainly the snowplow company cannot complain if, havof tbe iron works company, and ing taken tbe plow from the sold it for its oWn benefit, It is now adjudged to pay the balance justly due under tbe contract of manufacture., If a plaintiff in repleVin is ever the valuation placEld' by bim on replevied propto be beld. erty, the filcts of tbis case require such effect to be given to the recitals in theilffidavit, writ, declaration, and bond by means of which the snowplow company, without any just for instituting the proceedings in replevin, and without discharging by payment the lien held by the iron' works company' 'for the balance due it, took the property from the possession of the latter company, and removed it to such a distance as-to. pl'l1ctically deprive the defendant in error of all fair opportunity the value. of the patented machine, and instead of returning ,the property, wbenso adjudged in the replevin suit, sold the same for'its oWn benefit and at its own figures. Under such circumstances the snowplow con'ipanyand its coplaintifl'in error, who was the president of the company,and who made the affidavit in the replevin proceedings, bave certainly no just caUse of complaint in that it was ruled by the trial court that they must be held bound by the valuation which they had placed upon the property when seeking to obtain possession thereof by legal proceedings. The judgment of tbe court below if;! therefore affirmed, at cost of plaintiffs iIi error.

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. FEDll:RALREPl:lR'tER.vol. 52.

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J.c.,' 1

of Appea18;'

,(Jircuie.

No. ISO.

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2. SAlIfE.

The,fact thht a patent to lands. grante'd to a raUroadcpmpany by the act of July 'I, is 'fold' because pre-emption rights had· attached thereto. before not enable ,a;remote gJ:.antee to ,thl! :detllHte location of the road, hislm/p,ed,iate granto,J: for.a of warranty, grantee stIll retams posse$'$ion, ana has pendmg In' the land depart. Dient'an appHcation, a patent as' a bona fide' purchaser, under the act of MII-tc.h.·8, ,8, (24· 8. t. P.. 1$56,)Whichgives ..ce to such pUl.'chasers in case t,hll,Q{fginal pre:eniptioner' does not perfect bis entry within the time tlxed lJythe sectetary of the interior, 8S authorized by the ·act.' ,.,

LANDst;-.RAILROAD GRANTS - InALID P A,'l'EJ:'fTS - BRE,AOH OF WARRAN'!:Y., ... '.:. .' . . .... .... . .

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ac.t,Qf 1887, that nothing CQDtfl,ine4therein "shall pre· vent purcllaser of errQ,neQusly withdrawn, or patented, as aforesaid, from reco'tliring the purchase money therefor from the grantee company," doeS' not add". to or vary the MgMs of the J)arties at common law, but waS intend,d; $0 preserve rights as they had t1lereunder.

the Eastem :District of Missouri. " .' '. . . . . ." " . . . . . ." Actioq .by Gree,ley to .recover for alleged breaqh of qOvenants ,warranty in a deed,. Demurrer. to cOIlllp1,aiut llopd ,judgmellt fQr defendant. , Plaintiff brings'errOl.Affirmed. ' . . Statement by CALDWJj1LL. Circuit Judge: ,
T.hiSl1,C.ti'?Jl.,.;.wa.s b. in err.or ,tt.he in to recover. (lalV-ages for alleged breach of covenants of Warranty contamed lD a deed made 1>'1' the defendant in error to the plaintiff in error for certain lands. The complaint: alleges that, tbe Union Pacific Railway Company. conveyed the land ,in dispute to the defepdant, Greeley, and, that Grellley conveyed the, lIame to the plain'tiff,l>ut that tne only title ever possessed by theraihvay company was Railway derived from a patent issued by the government to the Kansas Company, :un(ler the pro"isions of tlle act of congress. approved July I, 1862,. donating loo.ds to aid in theco,nstruction ofa railroad from the Missouri river to the Pacitlcocean, and tbllot .uch patentw!is void because 8 pre-emption claim had attachlld tollhelandinqueiltionbeforethe railway companY had definitely located The QQurt below sustained, a demurrer to the complaint, and its line .of rendered for the defenda,nt, and the plaintiff therElU{lon sued out thIs writ of error. .. . ,

John;L'Murtay and ii. Foster, for plaintiff in error. A. L. Willidms. for defendant in error. . .' .. ,' Before CALDWELL andS:.\:NJ'lbRN. Circuit J udges, and SHlilAs,' District Judge.
CUDWELL, Circuit Judge, (after stating the facts.) Tn the case of Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Pup. Ct. Rep. 506, the supreme court decided that under the act of July 1. 1862, and the acts amendatory thereof. granting lands to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean, (12