itary stores and supplies shall not exceed, in At the date of the contract, the only military posts on the west bank of the Missouri River within the said district, were Fort Leavenworth, in Kansas, and Omaha, in Nebraska Territory. On or before the 30th day of March, 1866, the President of the Union Pacific Railroad advised the Quartermaster-General that the company had sixty miles of their line completed west of Omaha, and that the company expected to complete the first hundred miles by the 10th of June. In the summer and fall of 1866, the Union Pacific Railroad had extended their line westward to Columbus, Lone Tree and Kearney Station, and it offered to the United States a more expeditious and cheaper mode of transportation than wagon transportation. September inclusive, would have been to the petitioner $1.20 per hundred pounds per hundred miles. The Court of Claims awarded to the claimant the sum of $35,689.01, as damages for the failure to deliver 2,945,484 pounds of supplies which were transported from Omaha to Columbus, to Lone Tree and the Kearney Station_by rail, and thence to Fort McPherson, Fort Laramie and Fort *Reno by wagon. The [*267 court limited the recovery to transportation given between the months of April and September, 1866, and refused to allow damages for the failure to deliver for transportation the supplies which were carried after that period and in the year 1866. From the first branch of the judgment, an appeal was taken by the United States, and the petitioner has appealed from the latter part of the judgment. In the view we have taken of the case, it is unnecessary to consider a question largely discussed in the court below, and in the briefs of counsel here, to wit: whether the contract, although not in terms containing a stipulation binding the United States to deliver to the claimant all the stores and supplies it desired In the summer of 1866, the United States had collected, at Omaha, military stores and sup-to transport between the points mentioned, was plies intended for the supply of posts west of the Missouri River, and within the district covered by the contract with the petitioner, and in the year 1866, they sent by said railroad quantities of said stores and supplies from Omaha to Columbus, Lone Tree and Kearney Station, the successive termini of the railroad as it was extended westward, as is set forth in the schedule hereto annexed marked No. 1. And in the month of June, 1866, the United 266*] States contracted *with Herman Kountze for the transportation of said stores and supplies from Columbus, Lone Tree and Kearney Station to Fort McPherson, Fort Laramie, and Fort Kearney on said route No. 1, and copies of said contract are hereto annexed and marked B and C. And thereafter the said Kountze, under the said contract made with him and in the year 1866, performed the transportations specified in the schedule annexed and marked No. 2. Previous to the delivery of the said military stores and supplies to the said Railroad, and before the making of the said contract with Kountze, the petitioner was prepared, and notified the United States of his readiness to transport the said military stores and supplies, under and according to his contract. to be construed as having that effect. Our decision of the case rests upon other grounds, which are reached upon the assumption that the claimant is right in his construction of the contract, in that respect, but do not at all depend upon it. By the second article of the contract of Caldwell, the claimant, he undertakes to transport "from the posts, depots or stations named in Article I.," or from "any other posts, depots or stations that may be established" on the west bank of the Missouri River, any number of pounds of supplies not exceeding 10,000,000 lbs. in the aggregate. The posts named in Article I., are Forts Leavenworth and Riley, *in [*268 Kansas; Fort Kearney, Nebraska; Fort Sedgwick, Colorado; Fort Laramie, Dakota. The district named in said article within which other posts may be established is, the west bank of the Missouri River, north of Leavenworth and south of 42° north latitude. The posts from which the supplies were sent, which, it is said, should have been delivered to the claimant, were not those named in Article I., or either of them. They were Omaha at the outset, or starting point, and Columbus, Lone Tree and Kearney Station (not Fort Kearney), as the intermediate points from which wagon transportation was taken. These three points Previous to the delivery of said military were railroad stations on the Union Pacific stores and supplies to said Kountze, but after Railroad, and they were points to which the the making of said contract with him, the pe- road was, from time to time, sufficiently comtitioner was prepared and claimed of the Unit-pleted for the purposes of railroad travel or ed States the right under his contract to trans- transportation. port the said military stores and supplies, from the termini of said railroad to such places with in his contract as the United States might designate. No notice was given by the United States to the petitioner under his contract, to transport the military stores and supplies transported by said Kountze. But on the 11th of June, 1866, the petitioner was notified by the United States that transportation under his contract would not be needed. The cost of the transportation of said military stores and supplies delivered to said Kountze in any of the months from April to The judgment of the Court of Claims is based upon the theory that the expression in the contract, "posts, depots or stations," includes railway depots or stations; that when a depot or station was established upon the Pacific road, as its construction advanced westwardly, such point became a post or station within the meaning of the contract. We are of the opinion that this was not the intention of the parties, but that military posts or stations alone were intended by them. The contract was intended to aid the Government in the transfer of its stores and supplies from one military post, station or depot to an other. While the same words in a contract, the subject-matter of which respected goods to be transported for individuals, and in time of peace, might be construed as claimed, such is not their fair and natural meaning in the contract we are considering. The term "post," in this instrument, means a military establishment where a body of troops is permanently fixed: "station" means a place or department where a military duty is to be discharged, or the synonym of "depot," a place where military stores or supplies are kept, or troops assembled. To apply them otherwise would, we think, be giving a forced construction to language used in the presence of actual war, 269*] *in reference to military stores, and in reference to their transportation from one military position to another, as the necessities of the army should require. Columbus, Lone Tree and Kearney are not "on the west bank of the Missouri River," and the contract limits the other posts, stations, or depots that may be established to that locality. The record shows that from Omaha to Columbus is ninety-two miles, to Lone Tree is one hundred and thirty-two miles, and to Kearney Station is one hundred and ninety-one miles, and there is no evidence that the Missouri River is, at any other point, nearer to the places named than is thus indicated. It would be quite a latitudinarian construction that would hold that these places are "on the Missouri River." The specifications of the points of departure are minutely described in Article I., and cannot be enlarged by the looser language used in Article III., where another subject is provided for, and the points of departure are mentioned in an incidental manner only. The supplies now under consideration, it will be observed, were shipped from Omaha as the first or original point of departure. Omaha is situated on the west bank of the Missouri River, and was a station, or depot, where military stores and supplies were collected, and where troops were assembled at the time the claimant's contract was made. It is, nevertheless, not a point from which the supplies that were to be forwarded, were by the contract to be delivered to the claimant. Those points were the places named, to wit: Forts Leavenworth, Riley, Kearney, Sedgwick and Laramie; the station, or depot, of Omaha not being named. Nor can it come under the words "at such points or places at which posts or depots shall be established during the continuance of this contract, on the west bank of the Missouri River," as it was a post, or depot, established long before the making of the contract, and was in full operation as a post or station when the contract was made. The reason for this careful omission of Omaha, both from the expressed points of departure and those afterwards to be formed, is found in the fact that it was the eastern terminus 270*] *of the Union Pacific Railroad. The building of this road was then going on. It was well known to the United States authorities that it would be rapidly extended westwardly, and that it would be a speedy and cheap means of transporting its supplies. The contract with the claimant required the supplies to be transported at the rate of ten miles a day with mule trains and fourteen miles a day with ox trains, and at the expense of $1.45 per 100 lbs. for | every hundred miles. The train upon the railroad would carry the supplies the same distance in an hour, and the expense would be diminished nearly as much as the speed would be increased. All this was well known to both parties. Hence when the road was completed to Columbus it was used by the Government for that distance, and when successively completed to Lone Tree and Kearney, it was used to those places. That the United States under such circumstances intended to deprive itself of the power to use this new and more useful mode of transportation, can scarcely be credited. It has not done so in terms, and we think that there is no fair reason to suppose that it has done so by implication. The whole matter results in this: the Government is responsible in damages if it has sent its supplies through other parties than the claimant from the posts of Leavenworth, Riley, Kearney, Sedgwick or Laramie, or from other stations or posts thereafter established on the west bank of the Missouri River. The points from which it is proved to have sent supplies by other means than through the claimant are not among those named, nor are they military posts, nor are they on the west bank of the Missouri River. Omaha is not among the posts named, nor is it one established after the making of the contract. Hence there has been no breach of the contract, and there is no liability in damages. The judgment awarding damages in the sum of $35,689.01 is reversed, and the case is remitted to the Court of Claims, with directions to dismiss the petition. ALBERT KLEIN, Piff. in Err., v. NATHAN C. RUSSELL. (See S. C., 19 Wall., 433-468.) When court may direct a verdict-competent questions to witness in patent cases-improper requests to charge. 1. Where it is entirely clear that the plaintiff cannot recover, it is proper for the court to direct a verdict for defendant, but not otherwise. be made here. 2. A point not taken in the court below, cannot 3. A witness called by defendant to testify that the witness had used the plaintiff's invention, to show its want of novelty, may be asked by plaintiff if the plaintiff did not forbid his using it. It is not improper to inquire of a witness on his cross-examination as to the contents of a paper, which was an incidental and collateral matter, drawn out to test the temper and credibility of the witness, and which in nowise affected the merits of the controversy. 4. A question to a witness, by defendant, as to the novelty, utility and modus operandi of the alleged invention of the plaintiff, was competent. 5. A request to charge the jury, which does not correctly describe the invention of plaintiff, and which erroneously assumes that a knowledge by others of the thing patented, more than two years before the application for a patent, renders it void, was properly refused. 6. A request to charge, which assumes an erroneous construction of plaintiff's patent, and requests the court to charge that the patent so construed is void for want of utility, was properly re fused. which it related. 7. A request to charge was properly modified, where the state of the evidence hardly justified the judge in giving any instruction upon the subject to 8. Where the charge already given has fully covNOTE.--When a verdict may be directed by the court-see note to Grand Chute v. Winegar, 21 L. ed. U. S. 174. ered the ground, and is in accordance with the request to charge, the request was properly refused. [No. 181.] Argued Jan. 15, 1874. Decided Mar. 3, 1874. IN ERROR to the Circuit Court of the United States for the Northern District of New York. This action was commenced in the court below by Russell, for the alleged infringement of a re-issued patent. The descriptive portion of the patent is as follows: "My invention consists in a novel treatment of what is known as 'Bark tanned lamb or sheepskin,' an article used by book-binders, and which, while sufficiently soft and supple for the purposes of their trade, is too hard and stiff for glove-making, and a variety of other purposes. This objection is removed by my treatment of the article, and the leather rendered so soft and free, yet full in respect of body, as to adapt it, among other purposes or uses, to the making of what are termed 'dog-skin gloves.' The principal feature of the invention consists in the employment of what is known among tanners and others as 'fat liquor,' which is ordinarily produced by the scouring of deerskins after tanning in oil, but which, when it is not convenient to obtain in this manner, may be produced, or a liquor having the same character obtained, by the cutting of oil with a suitable alkali. In treating leather with the 'fat liquor,' it is desirable to heat the latter to or near the boiling point, and it is preferred to use the same in connection with other ingredients; thus, for instance, there may be added to each ten gallons in such heated fat liquor, eight ounces of salsoda, twelve ounces of common salt, one pint of soft soap or an equivalent quantity of hard soap, and four ounces of Venetian red, such ingredients to be well stirred, and mixed with the fat liquor. This forms a good treating mixture or compound and, when made in the foregoing quantity, will suffice for five or six dozen skins. But, of course, such quantity may be more or less varied, as may also the proportions of the ingredients and the Venetian red, or other coloring matter may be modified or omitted, as de sired. To effect the treatment hereinbefore referred to, of the bark tanned lamb or sheep skin, the same should be well dipped in or saturated with the fat liquor, or compound of which fat liquor is the base. This may be done by laying the skin to be treated on a table or other suitable surface, and rubbing the fat liquor or compound on or into both sides of the skin, using for the purpose a horse-brush or other suitable brush cr rubber, by which it can be worked into the skin, that is afterwards hung out to dry, and subsequently 'staked,' when the character of said skin will be found entirely changed from harshness to softness, and in other respects, thereby adapting it to the manufacture of gloves of the description previously named, 436*] and to a variety of other purposes for which said skin was not suitable prior to the treatment of it I have herein described. What is here claimed and desired to be secured by letters patent is: 1. The employment of fat liquor in the treatment of leather, substantially as specified. 2. The process substantially as herein described, of treating bark tanned lamb or sheepskin by means of a compound composed and applied essentially as specified.” Verdict and judgment were for the plaintiffs. A motion for a new trial having been overruled, the case was brought to this court. The errors relied on here were: 1. The refusal of the court below to direct a judgment for the defendant, because the evidence showed lack of novelty in plaintiff's inventions, and because the re-issued patent was void as not being for the same invention as the original. This last question was not considered by this court. 2. Exceptions to the evidence. Uriel Case was sworn and examined as a witness for defendant and testified that, eighteen or twenty years ago, he had applied fat liquor to twenty or twenty-five dozens bark tanned skins, dipping some and applying the liquor with a sponge to others, and this made them soft and suitable for gloves; that he made these skins into gloves, which were sold; used the fat liquor both warm and cold. He didn't make any more until last year. On his cross-examination, this witness testiskins that he so prepared, eighteen or twenty fied that of the twenty or twenty-five dozen years ago, he could not tell anything about the number of skins treated with warm liquor; that his attention was first called to that old transaction when this suit came off; that he did not know as he ever tried it again until last year; didn't remember whether he did or not; last year there was considerable of it done in Gloversville; that it was a cheaper article than buckskin, and they were making a salable article out of it; that, on the other trial, it was talked in his hearing that there was a large bark tanned skins; that in 1870 he began to use trade in Gloversville in gloves made from these the fat liquor to soften bark tanned skins again. And the counsel for the plaintiff then asked the witness: "Did Mr. Russell come and forbid you going on?" This question was objected to by the counsel for the defendant as immaterial and incompetent, and as calling for the declaration of the plaintiff; but the said objection was overruled by the said judge, and the said question held to be admissible; to which ruling and decision of the said judge, the defendant's counsel then and there duly excepted. John W. Place, on his cross-examination, testified that he was one of the defendants in the suit tried at Albany; Russell, plaintiff, and his brother Isaac B. Place and himself defendants; that he and his brother were partners and manufacturers at Gloversville; that he was present on this trial as a witness for Klein without payment of fees, and his brother was present also, that he had seen a paper in reference to the expenses of this suit; it was the day after the trial at Albany in reference to plaintiff's patent; that witness handed it to his brother, and hadn't seen it since that. Witness copied the paper at his brother's request, and handed it back to him. The counsel for plaintiff then asked the witness to state the substance of that paper. This was objected to by defendant's counsel. (1) Upon the ground that it was not the best evidence. (2) That no foundation had been laid 1 for the production of the secondary evidence of the contents of the papers in question. And, (3) As immaterial and incompetent. But the objection was overruled by the said judge, and the said question held admissible; and the counsel for defendant then and there duly excepted to said ruling and decision of said judge. Charles H. Porter, being sworn, testified that he resided in Albany, and was a physician and chemist; that he had examined the Russell patent and the specifications, and had made tests and experiments in relation to the fat liquor and the process therein described. The counsel for plaintiff then asked this witness the question: will you state whether the effect of fat liquor applied to oil tanned and bark tanned skins is the same or different? To this question the defendant's counsel duly objected as immaterial, the purpose for which the process is used being immaterial, if the process is the same. But the said objection was overruled by the said judge, and the said question held admissible. And to such decision and ruling of the said judge, defendant's counsel then and there duly excepted. Exceptions to the Refusal of the Court to Charge the Jury as Requested by Defendant's Counsel. when at or near the boiling point, it is, in respect to the application of heat, void for ambiguity, but the said judge refused so to charge the jury, for the reason substantially appearing in the modification of the last preceding request: and to such refusal the defendant, by his counsel, duly excepted. 4. The defendant's counsel also requested the said judge to charge the jury, that if they believe that cooling the fat liquor after boiling is an essential point of plaintiff's process, then the patent is void for not indicating that such process of cooling is necessary, or how it is to be accomplished; but the said judge refused so to charge the jury, but modified said requests by adding thereto, "Unless the common knowledge of persons skilled in the art of treating this leather to produce softness and pliability, would make the operator wait until it was partially cooled before its application," and instructed the jury pursuant to said request as so modified; and the defendant, by his counsel, then and there duly excepted to said refusal, and also to such modification. 5. The counsel for defendant also requested the said judge to charge said jury, that the addition to the fat liquor of the other ingredients mentioned in the specifications is not patentable, if such addition does not change the properties of the fat liquor or its effect or usefulness when applied to the purposes mentioned in the patent or specification. 1. The defendant's counsel requested the said judge to charge the jury that the invention claimed by the plaintiff as described in the patent of February, 1870, is the treatment of bark The said judge refused so to charge, but modtanned sheep and lamb-skins, by the employ-ified said request, and charged that the addition ment of fat liquor, and if the jury believes that to the fat liquor or other ingredients mentioned such treatment was known to others and more in the specifications is not of itself patentable, than two years before the claimant applied for if such addition does not change the properties his patent, his patent is void, and defendant of the fat liquor or its effect or usefulness, when below is entitled to a verdict; but the said applied to the purposes mentioned in the patent judge declined to charge as proposed, and de- or specifications, or to other like purposes; and clined to alter his charge in that respect, to the defendant, by his counsel, then and there which refusal the counsel for defendant then excepted to such refusal and modification. and there duly excepted. 2. The defendant's counsel also requested the said judge to charge that the proper construction of the patent is, that the fat liquor should be applied at or near the boiling point, and if the jury believe that the application of fat liquor to leather at such a temperature is injurious and pernicious, the patent is void for want of utility, and the defendant entitled to a verdict; but the said judge refused so to charge the jury, but modified the said request, and instructed the jury that the proper construction of the second claim of the patent, so far as it relates to the application of heat, is that the compound composed of fat liquor and the other ingredients required, should be applied at or near the boiling point, unless the common knowledge of persons skilled in the art of treating this liquor to procure softness and pliability, would make them wait until it was partially cooled before its application; and if the jury believe that the application of fat liquor to leather at such a temperature as is required by the specification under this qualification is injurious and pernicious, the patent is void for want of utility, and the defendant entitled to a verdict; and the counsel for defendant then and there duly excepted to such refusal, and also to such modification of said request as made by said judge. 3. Defendant's counsel also requested the said judge to charge that if the patent did not intend that the fat liquor be applied to leather 6. The counsel for the defendant also requested the said judge to charge said jury that the process of preparing leather by means of a compound, as claimed by plaintiff, is not patentable, because the proportions of such compound are not fixed, but are, in all respects, indefinite and uncertain, and may be waived or omitted by the terms of the patent. But the said judge refused so to charge or hold, and the counsel for the defendant then and there excepted to such refusal. 7. The counsel for the defendant also requested the said judge to charge the said jury, that if the jury shall find from the evidence that fat liquor had been used substantially in the manner specified in the plaintiff's patent, for the purpose of rendering any kind of leather soft and supple, more than two years before plaintiff applied for a patent, the plaintiff cannot recover, even though it had not been so used in dressing bark tanned lamb or sheep-skin. But the said judge refused so to charge, and the counsel for defendant then and there excepted. The counsel for the defendant then modified this request by substituting "used before the plaintiff's invention," for "before the plaintiff applied for a patent," and thereupon the judge charged the jury, that the application of an old invention or an old machine to produce a new result because it was applied to a different material, is not an invention, and the question of novelty is to be determined in the same way. I That, under the first claim of the plaintiffs, if this particular process was used for the purpose of softening leather, it is not material that it was bark tanned sheep or lamb-skin, if it be used as a process for that purpose. 8. The counsel for defendant also requested the said judge to charge said jury, that if the jury believe that the object of plaintiff's process was to substitute a less valuable article for that commonly known as dog-skin, and to impose upon the public by representing gloves made of softened sheep and lamb-skin as dog-skin gloves, the patent is void for fraud and the plaintiffs cannot recover. But the said judge refused so to charge; and the defendant, by his counsel, then and there duly excepted to such refusal. But the said judge charged that, if the process patented could not be made useful for any honest purpose, but only for perpetrating a fraud upon the public, and was, therefore, not useful but pernicious, the plaintiff could not recover. 9. And the counsel for defendant also requested the said judge to charge said jury, that if anything claimed by the plaintiff in his patent, as used, was in fact old, the entire patent was void and the plaintiff could not recover. But the said judge declined so to charge said jury, except as had already been charged in the portion of the charge of said judge hereinbefore stated; and to such refusal the defendant, by his counsel, then and there excepted. 10. The counsel also requested the said judge to charge the said jury, that the patent could not be sustained in the matter of the mere degree of heat, if the principle of applying heat to any extent is an old process. But the said judge declined so to charge, except as had already been charged in the portion of the charge hereinbefore set forth, and to such refusal the counsel for defendant then and there excepted. Messrs. Matthew Hale and James M. Dudley, for plaintiff in error: The court below erred in refusing to give the first charge requested by defendant, to the jury, that the invention claimed by the plaintiff below, in his re-issued patent, was the treatment of bark tanned sheep and lamb-skins by the employment of fat liquor; and that if they believed that such treatment was known to others and more than two years before the plaintiff applied for his patent, his patent was void and the defendant (below) entitled to a verdict. See, Moffitt v. Gaar, 1 Fish., 613. The second branch of the request, that knowledge of this treatment by others, more than two years before plaintiff applied for his patent, rendered the patent void, was also correct. Ch. 357 of 1836, sec. 15; Ch. 88 of 1839, sec. 7; 16 Stat. at L., 208, sec. 61. The court below also erred in refusing the requests to charge in relation to the construction of the patent, so far as it related to the application of heat, and in modifying said requests as above stated. 2d, 3d and 4th requests. The patent recommended that the fat liquor be heated "to or near the boiling point." The natural inference was that it was to be applied in that condition. If applied at such temperature there was evidence that it would be destructive to the leather. But the judge refused to instruct the jury that the patent was void for want of utility, if they believed this evidence, except with a modification, which really 19 WALL. left the construction of the specification in the patent to the jury. We insist (under the 3d and 4th requests) that the specification in the patent either required the liquor to be applied, at or near boiling heat, or else utterly failed to specify at what heat it should be applied, and that for this reason the patent was void in respect to the application of the heat. See, Tyler v. Boston, 7 Wall., 327, 19 L. ed., 93. The court below erred in refusing to charge as requested, with reference to the patentability of the addition to the fat liquor of the other ingredients mentioned in the specifications, and in modifying the requests by adding thereto the words, "or other like purposes." The purposes of the process are clearly set forth in the patent. They were to remove the hardness and stiffness of bark tanned skins. The evidence was that the other ingredients named in the patent did not change the properties of fat liquor, which is simply oil cut with alkali. The court erred in refusing to charge that the process of preparing leather by means of a compound, as claimed by plaintiff, was not patentable, because the proportions were not fixed, but were indefinite and uncertain, and may be waived or omitted by the terms of the patent. (6th request.) By referring to the specification in the patent, it will be seen that this request should have been complied with. "It is preferred to use the same in connection with other ingredients." Then, after giving certain proportions, it goes on to say: "But of course such quantity may be more or less varied as may also the proportions of the ingredients, and the Venetian red or other coloring matter be modified or omitted as desired." In other words, everything was left to the tastes and fancy of the user, who was at liberty, under this patent, to use any or all of these ingredients, in such proportions or manner as he pleased, or to omit them altogether. It is absurd to say that such a use or omission to use, of well known ingredients was patentable. The description of the pretended compound was too vague and uncertain to sustain the patent. Tyler v. Boston, supra; Wood v. Underhill, 5 How., 1; Parker v. Stiles, 5 McLean, 54. The court below erred in refusing the 7th request. This request was conceded by the learned judge to be correct in principle, so far as it referred to the use of the process for the purpose of softening any leather; but he refused to charge that such prior use for two years before the plaintiff below applied for his patent, was sufficient. Upon the general principle involved in the request, see Harwood v. Railway, 11 H. of L. Cas., 654; Hotchkiss v. Greenwood, 11 How., 248; Bean v. Smallwood, 2 Story, 408; Winans v. R. Co., 2 Story, 412; Losh v. Hague, Web. Pat. Cas., 202; Reg. v. Cutler, 3 Car. & K., 215; Jordan v. Moore, L. R., 1 C. P., 624; Brook v. Aston, 8 El. & Bl., 478; Howe v. Abbott, 2 Story, 190; Phillips v. Page, 24 How., 164, 16 L. ed. 639; Bottle Envelope Co. v. Seymer, 5 C. B. (N. S.), 164; Bush v. Fox, 5 H. of L. Cas., 707; Leroy v. Tatham, 14 How., 177; Boulton v. Bull, 2 H. Bl., 487. The court below erred in refusing to charge, |