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C. A.) 284 F. 217." Angelus Sanitary Can Mach. Co. v. Wilson (C. C. A.) 7 F. (2d) 314, 318.

We think the construction and mode of operation of the two machines are so similar that the Butler machine cannot be regarded as an independent invention.

Appellee's title to the three patents in suit, and its right to the exclusive use of the invention, is clear, and there is no room for reasonable doubt as to the infringement.

All of the assignments of error not herein referred to have been carefully considered. We find no error in the record, and the decree of the lower court is affirmed, with costs.

APPENDIX 1.

Butler Patent, No. 1,581,784.

"1. An apparatus for spreading hot materials, comprising a receiver for the materials, having a rearwardly inclining bottom and a rear wall at an angle to the vertical, the bottom of said rear wall spaced from the bottom of said receiver to provide a discharge throat, means movable on said rear wall to control the transverse area of said throat, and rollers arranged in pairs supporting said receiver above the surface operated over.

"2. An apparatus for spreading hot materials, comprising a receiver for the materials, having a rearwardly inclining bottom and a rear wall spaced from said bottom, and providing a throat for the discharge of the material, means on and movable relative to said rear wall to control the transverse area

of said throat, means on and movable relative to the side walls and said throat to control the width of said throat, strike-off means for the material, said means laterally movable relative to said first named means, and rolling means supporting said receiver above and free of the ground.

"3. An apparatus for spreading hot materials, comprising a receiver having a rearwardly inclining bottom, and a rear wall spaced from said bottom to provide a throat, means movable on said rear wall to control the transverse area of said throat, roller means supporting said receiver above the ground and disposed free of the throat in said receiver, strike-off means on and movable with and laterally to said control means, and means to control the movement of said strike-off means.

"4. An apparatus for spreading hot materials, comprising a receiver, having an inclined bottom and an inclined rear wall spaced from said bottom to provide a throat for the material, roller means supporting said

casing entirely above and free of the ground and disposed forward of the throat in said receiver, a blade on said rear wall, movable relative thereto and to the throat, to control the transverse area of said throat, means to operate said blade, partitions connected with said receiver and movable relative thereto and to said throat, to control the width of the throat, a strike-off plate on and movable with and relative to said blade, and means to operate said strike-off plate.

"5. An apparatus for spreading road materials, comprising a receiver for the material having a discharge throat in the rear thereof, a means to regulate the transverse area of said throat, to control the depth of material laid, adjustable means within said receiver to regulate the width of the throat, to control the width of the material laid, and means to lock said adjustable means in position of adjustment.

"6. An apparatus for spreading road materials, comprising a receiver for the materials having a discharge throat in the rear thereof, a blade movable on said receiver to control the transverse area of said throat, means to operate said blade, and means on said blade, forming extensions of same, to control the deposit of the material beyond the normal limits of the apparatus, and comprising plates having wings forming end walls for the throat, and means to operate said plates relative to said blade.

"7. An apparatus for spreading hot road materials, comprising a receiver having a rear discharge throat, roller means supporting said receiver entirely above the ground, a blade to control the transverse area of the throat, to regulate the depth of the material laid, plates on said blade, forming extensions thereof, to control the deposit of the material beyond the normal limits of the apparatus, means to agitate said material, and means to heat said agitating means.

"8. An apparatus for spreading hot road materials, comprising, a receiver having a rear discharge throat, roller means supporting said receiver entirely above the ground, a blade to control the transverse area of the throat, to regulate the depth of the material laid, means to operate said blade, plates on said blade forming extensions thereof, to control the deposit of material beyond the normal limits of the apparatus, means to operate said plates relative to said blade, and a platform on said apparatus and extending longitudinally of the same and above the surface of the material laid.

"9. An apparatus for spreading hot materials, comprising a receiver for the materi

ceiver to provide a discharge throat, and means to heat the material in said receiver.

23 F.(2d) 15 als, having a rearwardly inclining bottom and a rear wall at an angle to the vertical, the bottom of said rear wall spaced from the bottom of said receiver to provide a discharge throat, means on and movable relative to said rear wall, to control the transverse area of said throat, and selective means to control the deposit of material through said throat beyond the sides of the apparatus.

"10. An apparatus for spreading hot materials, comprising a receiver for the materials having a rearwardly inclining bottom and a rear wall spaced from the bottom of said re

"11. An apparatus for spreading hot materials, comprising a receiver for the materials, having a rearwardly inclining bottom and a rear wall spaced from said bottom and providing a throat for the discharge of the material, means on and movable relative to said rear wall to control the transverse area of said throat, and means movable relative to the side walls and said throat to control the width of said throat.

"12. An apparatus for spreading hot ma

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terials, comprising a receiver having a rearwardly inclining bottom, and a rear wall spaced from said bottom to provide a throat, means movable on said rear wall to control the transverse area of said throat, means movable relative to the side walls to control the width of the throat, roller means supporting said receiver above the ground and disposed free of the throat in said receiver, and strike-off means on and movable with and laterally to said control means.

"13. An apparatus for spreading hot materials, comprising a receiver having a rearwardly inclining bottom, and a rear wall spaced from said bottom to provide a throat, means movable on said rear wall to control the transverse area of said throat, means movable relative to the side walls to control the width of the throat, roller means supporting said receiver above the ground and disposed free of the throat in said receiver, and strikeoff means on said control means.

"14. An apparatus for spreading road materials, comprising a receiver for the material having a discharge throat in the rear thereof, a means to regulate the transverse area of said throat to control the depth of material laid, and means within said receiver to regulate the width of the throat to control the width of the material laid, and means to control the deposit of material through said throat beyond the sides of the apparatus. "15. An apparatus for spreading road materials, comprising a receiver for the material having a discharge throat in the rear thereof, means to regulate the transverse area of the throat to control the depth of material laid, means to regulate the longitudinal area of the throat to control the width of the material laid, roller means supporting the receiver above the ground, and means laterally movable relative to the receiver to strike off deposited material.

"16. An apparatus for spreading hot materials, comprising a receiver having a discharge throat in the rear thereof, a blade to regulate the transverse area of said throat to control the depth of material laid, roller means supporting said receiver above the ground and free of the throat therein, and means on and laterally movable relatively to said blades to strike off deposited material.

"17. An apparatus for spreading hot materials, comprising a receiver having a discharge throat in the rear thereof, a means to regulate the transverse area of said throat to control the depth of material laid, roller means supporting said receiver entirely above the surface operated over, means to

heat the material, and a platform longitudinally of said receiver and above the surface of the material laid.

"18. An apparatus for spreading hot materials, comprising a receiver having a discharge opening therein, a means to regulate the transverse area of said opening to control the depth of material laid, and means on said receiver to strike off deposited material.

"19. An apparatus for spreading road materials, comprising a receiver having a discharge opening therein, a means to regulate the transverse area of said opening to control the depth of material laid, and a platform longitudinally of the receiver and above the surface of the material laid.

"20. An apparatus for spreading hot materials, comprising a receiver having a discharge opening therein, a means to regulate the transverse area of said opening to control the depth of material laid, roller means supporting said receiver above the ground and free of the opening therein, and a platform. longitudinally of the receiver and above the surface of the material laid."

APPENDIX 2.

Butler Patent, No. 1,605,094.

"1. In an apparatus for laying material, a casing having a rearwardly inclining bottom terminating in a downwardly extending apron, and a rear wall, a blade on said rear wall co-operating with said apron to form a chute having open sides, means to move said blade relative to said apron to control the transverse area of said chute, and roller means arranged in pairs and disposed in advance of the chute for supporting said casing entirely above the surface of the ground.

"2. In an apparatus for laying material, a casing having a rearwardly inclining bottom formed with an apron extending below said bottom, and a rear wall, a blade on said rear wall co-operating with said apron to form an open-sided chute below said bottom means to move said blade relative to said apron to control the transverse area of said chute, and means selectively operable to control the discharge of material through the sides of said chute.

"3. In an apparatus for laying material, a casing having a rearwardly inclining bottom formed with a downwardly extending apron, and a rear wall, a blade on said rear wall forming with said apron an open-sided chute below said casing, means to move said blade relative to said apron to control the transverse area of said chute, and means to control the passage of material through the

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sides of said chute, said means movable with to control the passage of material thereand independently of said blade. through.

"4. In an apparatus for laying material, casing rollers arranged in pairs to support the casing entirely above the surface operated over, said casing having an inclined bottom terminating below said casing, and a rear wall spaced from said bottom, a blade on said rear wall co-operating with the portion of the bottom terminating below the casing to form an open-sided chute, means to operate said blade on said rear wall to control the transverse area of said chute and means operable relative to the open sides of the chute

"5. In an apparatus for laying material, a casing having a rearwardly inclining bottom formed with an apron extending below said casing, and a rear wall spaced from said bottom, a blade on said rear wall co-operating with said apron to form an open-sided chute below said casing, means for selectively moving said blade to control the quantity of material passing through said chute, and means for selectively controlling the quantity of material passing through the sides of said chute."

WALRATH et al. v. ROBERTS. Circuit Court of Appeals, Ninth Circuit. December 5, 1927.

Rehearing Denied January 9, 1928.

1. Trusts

No. 5226.

6334-No resulting trust arises in favor of grantor contrary to terms of deed. In the absence of fraud, recitals in a deed are conclusive on grantor, and no resulting trust can be raised in his favor in opposition to the express terms of the conveyance.

the properties so transferred and conveyed. The agreement further provided that the grantee should within one year after the death of the grantor, out of the net proceeds of the properties, pay to Flora Taylor, Emma Fitch, Clara Walrath, and Dr. James Walrath the sum of $5,000 each, and should make certain other payments not deemed material here. The foregoing agreement and the transfers and conveyances therein referred to were executed prior to the settlement and distribution of the estate of the deceased

2. Judgment 585(1)—Judgment does not husband of Minerva H. Roberts, and on Ocbar causes separate and distinct.

A judgment or decree is not a bar to a subsequent suit, where the causes of action are separate and distinct.

Appeal from the District Court of the United States for the Northern Division of the Northern District of California; Frank H. Kerrigan, Judge.

Suit in equity by Clara Walrath and others against Willis H. Roberts. Decree for defendant, and complainants appeal. Affirmed. See, also, 12 F.(2d) 443.

W. H. Metson and E. B. Mering, both of San Francisco, Cal., for appellants.

Robert T. Devlin, William H. Devlin, and Devlin & Devlin, all of Sacramento, Cal., for appellee.

Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge. On August 13, 1909, Minerva H. Roberts and Willis H. Roberts entered into a written agreement wherein and whereby, for value received, the latter covenanted and agreed to devote and apply his best energies, judgment, and ability during the lifetime of the former, to the advantageous and successful handling and management of certain properties, business interests, choses in action, and other beneficial interests that day transferred and conveyed by Minerva H. Roberts to Willis H. Roberts, subject to the right of the grantee, as owner of the properties, to collect upon or to sell and convert into money, and to exercise all rights of ownership of and over any and all of such properties at such times and in such manner and upon such terms as in his judgment should seem best. It was further agreed that the grantee should keep true and correct accounts of all business matters, render a statement to the grantor semiannually, showing the true state of the accounts at the date thereof, and pay to the grantor during her lifetime one-half of the net profits aris. ing from the ownership and management of

tober 10, 1910, after distribution, transfers, and conveyances for further assurance, and a second agreement of like tenor were executed.

August 16, 1917, a supplementary agreement was entered into by the same parties, in settlement of certain litigation then pending between them, wherein they attempted to release and discharge the grantee from the obligation to make the payments to Flora Taylor and others, as above set forth. Minerva H. Roberts died testate November 13, 1918, and Willis H. Roberts having failed to make the payments provided for in the agreements of August 13, 1909, and October 10, 1910, within one year after her death, suit was brought in the court below by Flora Taylor, Emma Fitch, Clara Walrath, and Raymond L. Wal

rath, as successor in interest to Dr. James Walrath, to recover the sum of $5,000 each, as provided in the collateral agreements above referred to. In that suit a decree was entered in favor of the plaintiffs for the several amounts claimed, and the decree was affirmed by this court on appeal. Roberts v. Taylor (C. C. A.) 300 F. 257. Thereafter the present suit was commenced in the same court by the assignees of a half interest in the residuary estate of Minerva H. Roberts to recover the half interest so assigned, the plaintiffs claiming that under the conveyances and transfers from Minerva H. Roberts to Willis H. Roberts, and the collateral agreements connected therewith, there was a resulting trust in favor of the grantor and her residuary legatee. Upon the final hearing, the complaint was dismissed and the plaintiffs have appealed.

[1] The conveyances under which the appellee claims are not in the record, but it is not claimed that they contain anything that would give rise to a resulting trust in favor of the grantor. Even if they were executed without consideration they would have no such effect. "A deed by the owner of land, duly signed and acknowledged by him and

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