DUFF and others v. ST. LOUIS WOODEN-WARE WORKS and others.

(Circuit Court, E. D. Missouri. October 31, 1884.)

PATENTS--LETTERS PATENT No. 6,673 FOR IMPROVEMENT IN WASH-BOARDS. Reissued letters patent No. 6,673 granted to R. P. Duff for an improvement in wash-boards, held, not infringed by the manufacture of wash-boards made in accordance with the discription contained in letters patent No. 201,658 granted to Charles Everts.

In Equity.

This is an action for infringement of reissued letters patent No. 6,673, granted October 5, 1875, for improvements in wash-boards to the complainant as asignee of Westly Todd. The original patent bears date February 7, 1871. The specifications of the reissue state. that the nature of the invention "consists in the construction of a sheet-metal wash-board with a rubbing face longitudinally and transversely corrugated or ribbed, whereby such rubbing surface shall be made up of a series of projections, bounded by a series of horizontal, vertical, and angularly shaped grooves. The rubbing face somewhat resembles the face of a rasp or file in general appearance, though the projections are less sharp and angular."

There are three claims in the reissue which are as follows:

"(1) A sheet-metal wash-board, having a series of raised projections, B, each bounded by longitudinal and transverse grooves or depressions, substantially as set forth; (2) in a sheet-metal wash-board the projections, each bounded by grooves or depressions, in combination with raised projections, C, in the bottoms of the interlying grooves, substantially as set forth; (3) as a new article of manufacture, a sheet-metal wash-board, having a rubbing face longitudinally and transversely ribbed or corrugated, substantially as set forth."

Complainants' boards are known in the trade as the "Globe," and are so stamped. Defendants' boards are known in the trade as the "New Era," and the "Great Western," and are so stamped. The pattern of the Great Western is simply an enlargement of the pattern of the New Era. Defendants' boards are made in accordance with the description contained in letters patent No. 201,658, dated March 26, 1878, granted to Charles Everts, one of the defendants, which description is as follows:

"The object of this invention is to furnish an improved wash-board, the zinc rubbing plate of which shall be so formed as to give a great amount of friction to the clothes rubbed upon it, and at the same time shall be so formed as not to injure the said clothes.

"The invention will first be described in connection with the drawing, and then pointed out in the claim. A represents the wooden frame of the washboard, which is constructed in the usual way. B is the zinc plate, which is secured to the frame, A, in the usual way. The plate, B, has transverse ridges, C, made with inclined sides formed across it, one of which sides may be made with a steeper inclination than the other. Upon the plate, B, and at right

1 Reported by Benj. F. Rex, Esq., of the St. Louis bar.

angles with the ridges, C, are formed short ridges, D, one end of which ridges, D, meets the ridges, C, and their other ends stop at a little distance from the next ridge, C. The ridges, C, D, thus form series of rows of T-shaped ridges, the ends of the cross-bars of which meet and form a continuous ridge. In the spaces between and parallel with the short ridges, D, are formed depressions, E. The plate, E, may be attached to the frame, A, with the ridges, C, running across, or up and down, as may be desired."

The claim in this patent is as follows:

"A sheet-metal wash-board having transverse continuous ridges and intermediate longitudinal separated ridges, the lines of direction of said ridges being at right angles to each other, and between which ridges inclined rubbing surfaces and soap pockets are formed, substantially as shown and described." George H. Christy, for complainants.

G. A. Finkelnburg, Leo. Rassier, and Dexter Tiffany, for defendants. TREAT, J. It is not the purpose of the court to enter upon a minute description or analysis of the original patent or reissue; nor of the alleged anticipation thereof. The decision of the United States supreme court in Duff v. Sterling Pump Co. 107 U. S. 636, S. C. 2 Sup. Ct. Rep. 487, furnishes very little aid for the present inquiry. In that case it was held that the Told patent was limited to the form of the longitudinal and transverse grooves with protuberances thereon, the said grooving being at right angles. That case seems not to have determined definitely whether the said Todd patent or its reissue was valid. It decided that the defendant's wash-board in that case was not an infringement of the Todd patent, even properly limited. The question of novelty and utility looking to the validity of the patent, and also the infringement alleged are before the court as if undecided by the supreme court, whether the said patent and its reissue could be upheld, considering the state of the act and prior patents, is more than doubtful. It must suffice, for the purpose of this case, that whether said Todd patent was valid or not, under a proper construction of its terms and the limitations thereof suggested by the United States supreme court, the defendant is guilty of no infringement. Bill dismissed, with costs.

HOLMES ELECTRIC PROTECTIVE Co. v. METROPOLITAN BURGLAR ALARM CO.

(Circuit Court, S. D. New York. December 4, 1884.)

PATENTS FOR INVENTIONS-FOREIGN PATENT-DESCRIPTION.

It is only a patent for an invention that has been previously actually patented in a foreign country that is limited by the foreign patent. The description of the invention in the foreign patent might affect the validity of the domestic one and might not, but would not limit it.

In Equity.

S. A. Duncan, for complainant.

Cary & Whitridge, for defendant.

WHEELER, J. The invention patented in the patent in suit, as the same was construed in granting the injunction now sought to be dissolved, was not patented in the English patent which has expired, the expiration of which is relied upon to terminate this patent, and is the ground of this motion. It is only a patent for an invention that has been previously actually patented in a foreign country that is limited by the foreign patent. The description of the invention in the foreign patent might affect the validity of the domestic one and might not, but would not limit it. Rev. St. § 4887. The effect of the various patents was considered, when the injunction was granted, as bearing upon the validity and construction of this one, and those questions are not open upon this motion as made. The motion is denied.

THE J. F. Warner.

(District Court, E. D. Michigan. February 5, 1883)

1. ADMIRALTY JURISDICTION - CONTRACT OF AFFREIGHTMENT - LIBEL IN REM FOR BREACH.

In cases of breach of contract of affreightment a libel will lie in rem against the vessel and in personam against her owner.

2. SAME-SUIT IN PERSONAM-STATE LAW GIVING LIEN.

While a court of admiralty will not entertain a suit in rem for the breach of a purely executory agreement because no lien is given by the law maritime, yet it has jurisdiction in personam of this class of cases, and where a state law has annexed a lien to such contracts a court of admiralty will enforce it.

In Admiralty.

This was a libel for breach of a contract of affreightment made at Buffalo, New York, July 31, 1879, between the libelant, Bewick, and respondent Walker, then master and part owner of the barge J. F. Warner. The libel was in rem against the barge and in personam against her owners. The libel set forth that on July 31, 1879, Bewick chartered the barge Warner to go from Buffalo to Alpena and transport a cargo of 340,000 feet of lumber, at $1.50 per thousand, which she was to deliver at Buffalo; that the charter was verbal and never reduced to writing; and that said barge Warner having, as libelant was informed, a better offer, failed to perform her charter, and by reason thereof libelant suffered damages in the sum of $680, which damages are a lien upon said barge, both by the general maritime law and the law of this state. The answer denied that any contract or charter-party was made to transport this lumber from Alpena to Buffalo. The fourth article alleged that Bewick made a proposition to the master of the barge which was accepted, namely, that said

barge should be placed in tow of the propeller Alpena, then about to leave for the ports of Bay City and Saginaw; that by the proposition of said Bewick the said propeller Alpena was to take said barge across Saginaw bay to Au Sable, where, if the wind should be favorable for the barge to run to Alpena, she was to go by sail, and receive and take on board a cargo of lumber and transport the same to Buffalo, and was to receive freight, according to the custom and understanding, at Bay City rates; that if the wind was not favorable for said. barge to run to Alpena from Au Sable, the said propeller Alpena was to tow her there or see that she got there. It further alleged the taking of the barge in tow for Alpena in pursuance of this proposition and its acceptance; that the wind, on the arrival of the tow near the Charity islands, was to the westward and north of west; the failure of the propeller to come to or aid the barge to go to Au Sable, but she proceeded on her way to Bay City without casting off her line or making any signal or request whatever; that as the wind then was the barge was unable to reach either Au Sable or Alpena, and it was unsafe to cast off her line as the wind then was on Saginaw bay.

Respondents in their answer set up, as a further matter of defense, exceptions to the libel upon the following grounds: (1) That a joint. suit against the barge and her owners cannot be maintained; (2) that no cargo having been taken on board a suit will not lie against the barge in rem.

H. H. Swan, for libelant.

Wm. A. Moore, for respondents.

BROWN, J. Proceeding to dispose of the preliminary questions raised upon the exceptions to the libel, I am asked to determine

1. Whether a joint suit can be maintained against the barge in rem and her owners in personam. General admiralty rules 12 to 20, enacted in pursuance of an act of congress, and having the force of law, define with much particularity the remedies to which the injured party is entitled in the most numerous classes of cases arising in courts of admiralty, but as no mention is made in any of these rules of suits upon contracts of affreightment, I am compelled to dispose of the question as one dependent upon the practice of the admiralty court's in that particular class of cases. The rules afford us no guide in suits of this description. In determining what the proper practice. ought to be, we look to ascertain what the practice has been in analogous cases in other districts. There is certainly nothing in the rules excluding the joinder of the Warner and her owners, nor do I see that there is any principle of law violated. It is an elementary rule that the master of a vessel may bind both the vessel and her owners by contracts made within the scope of his authority, and if both are bound I see no reason in principle why both may not be pursued in the same action. Precedents, however, are not wholly wanting. Thus, in the case of Vaughan v. 630 Casks of Sherry, 7 Ben. 507, which was a libel against a cargo and its consignees for freight,

Judge BLATCHFORD held that, as the cause of action arose out of a contract which, if the respondents were liable upon it, also bound the property, and as the respondents claimed the property, there was no reason for not joining a cause of action against the property in rem with one against the respondents in personam. This case was affirmed upon appeal by Mr. Chief Justice WAITE in 14 Blatchf. 517. A similar ruling was made by Judge BETTS in the case of The Zenobia, Abb. Adm. 48, which was also a libel in rem against a bark and in personam against her master to recover damages for non-performance of a contract of affreightment. I see no reason for joining the master which would not apply with equal force to the owner. In deciding this question, Judge BETTS noticed that the rules of the supreme court did not provide for libels of this description, and neither authorized nor forbid the joinder. "The consequence is that such cases fall within the scope of rule 46, which prescribes that in all cases not provided for by the foregoing rules the district and circuit courts are to regulate the practice of those courts, respectively, in such manner as they shall deem most expedient for the administration of justice. The practice in respect to the question under consideration is therefore left to be regulated at the discretion of the courts in the various districts." In other cases in the same district the same principle has been approved. The Aldebaran, Olc. 130; The Merchant, Abb. Adm. 6; The Monte A. 12 FED. REP. 336; Betts, Adm. Pr. 20.

In The Clatsop Chief, 8 FED. REP. 164, the learned judge of the district of Oregon expressed the opinion that, in the absence of general admiralty rule 15, a suit for damages for collision might be sustained against the vessel and her owner, and approves the practice in New York. There is nothing in the case of The Sabine, 101 U. S. 384, which would prevent such joinder in a libel upon a contract of affreightment. This was a suit for salvage, and the supreme court held that it would not lie against the vessel and the consignees of her cargo. Indeed, the court could not have held otherwise without disregarding the nineteenth general admiralty rule. No opinion, however, was expressed in that case with reference to suits not embraced in these rules. As the practice in New York upon this subject is entirely. well settled, (see Betts, Adm. Pr. 20; Ben. Adm. Pr. 526; Bump, Fed. Proc. 851,) as well as the cases above cited, and as my attention has not been called to any other cases which hold that such practice is not a proper one, except that of The Alida, 12 FED. REP. 343, and as it is in the interests of speedy justice, I am not disposed to sustain this exception.

2. The next objection raised by the answer is that this court has no jurisdiction either in rem or in personam of the matters set forth in the libel. That there is no lien upon this vessel by the general maritime law, follows from the opinion of this court in the case of Scott v. The Ira Chaffee, 2 FED. REP. 401, in which I had occasion to