'Knapp v. Joubert.

The Act of 1875 employs the identical phraseology by which the Constitution defines the grant of judicial power which Congress may confer upon the inferior Federal Courts, and, I cannot doubt, is intended to confer the grant to the full extent authorized by the Constitution.

Judgment is ordered for the plaintiff.

Matthew Hale, for the plaintiff.

R. W. Peckham, for the defendant.

RENSSELAER KNAPP

vs.

EDWARD JOUBERT AND HILER WHITE. IN EQUITY.

A patentee having been the first to introduce a spring which completely supplements the elasticity of a buckboard in a buckboard wagon, by being rigidly connected with the buckboard at the centre, but free at the ends to respond to the movements at the centre, he is to be protected not only in the particular devices he employs for the purpose, but against all other devices which are the mechanical equivalents for his devices.

(Before WALLACE, J., Northern District of New York, April 7th, 1881.)

WALLACE, J. I am of opinion that the defendants' buckboard wagon, manufactured under their patent of January 27th, 1880, is an infringement of the complainant's patent of September 29th, 1874. The subject of the complainant's patent is an improvement in buckboard wagons, whereby a sustaining spring or springs are employed to supplement the functions of the buckboard, bracing it at its centre of pressure, and yielding with it at its ends, in response to the pressure at the centre. Shortly prior to the complainant's invention, George E.

Knapp v. Joubert.

Norris introduced a central supporting spring in the construction of spring-board wagons, and obtained a patent for his improvement September 8th, 1874. His device was a C shaped spring, to the ends of which longitudinally connecting brass rods were attached, which extended the whole length of the spring-board, and were fastened at one end in the hind axle of the wagon, and at the other to the head block in front, by nuts which rendered the brace rods adjustable, when it might be desirable to regulate the tension of the spring. The spring-board, at its centre, rested upon the steel spring, so that the spring formed a support for the board and measurably strengthened and steadied it.

The complainant's improvement presents a radical departure from that of Norris, in that his spring is rigidly fastened to the spring-board at the centre, while the ends are allowed free play to elongate or retract in response to pressure at the centre. His specification describes a curved metallic spring of such length that when it is rigidly secured at the middle of its length to a batten crossing the buckboard at its centre, or to the buckboard itself at its centre, the ends extend nearly to the ends of the buckboard. The ends of the spring are provided with a hook, which is received in a swinging link, which is secured to the buckboard by a hook or staple. Thus, the ends of the spring are free to expand or retract according to the movement of the buckboard at the centre, and while, in Norris' construction, the spring and spring-board are independent of each other, in the complainant's they constitute practically a single device for the of regulating the elasticity of the wagon.

purpose

The defendants have appropriated the complainant's improvement, unless they have dispensed with that element of his combination which consists of the device for holding the ends of the spring. The complainant claims the combination of the sustaining springs, the hooks, and the buckboard. He does not claim the swinging links, and it is evident, from his specification, that this part of the device is not essential, but that the ends of the springs can rest as well

Knapp v. Joubert.

directly in the hook or staple as in the link, and perform the functions assigned to them, of elongating or retracting with the pressure at the centre. The defendants' spring rests, at each end, in a metal plate, called a keeper, which is fastened to the buckboard, and holds the end of the spring in its place, but permits it to play back and forward. It performs the same function as the complainant's hook. It performs this fnnction in the same way as the complainant's, because it is located at the same place and controls the end of the spring in the same manner as the complainant's device. It can be called a hook just as appropriately as the complainant's device can be called a hook. Neither of them are technically hooks.

If the complainant had not been the first to introduce a spring which completely supplements the elasticity of the buckboard, at all parts of the buckboard, by being rigidly connected with the buckboard at the centre, but free at the ends to respond to the movements at the centre, it would be the duty of the Court to scan more critically the devices he has employed to accomplish this result. If others before him had located the spring as he has, but had used other devices for controlling its action at the ends, it would be necessary to mark the precise point of departure between his devices and theirs. But, as he was the first to employ it for the peculiar function it performs, he is to be protected not only in the particular devices which he employs for this purpose but against all other devices which are the mechanical equivalents for his.

I cannot but believe that the complainant was the author of an improvement of essential merit in buckboard wagons, and that the defendants have substantially appropriated his invention.

A decree is ordered adjudging infringement of both claims of the complainant's patent and for an injunction and accounting, with costs.

E. F. Bullard, for the plaintiff.

Hughes & Northrup, for the defendants.

Lunt v. The Boston Marine Insurance Company.

GEORGE D. LUNT AND OTHERS

vs.

THE BOSTON MARINE INSURANCE COMPANY.

The defendant insured the plaintiff, on a cargo on board a vessel, at and from Yarmouth, Nova Scotia, to New York city. At the time of the insurance the vessel was at Shelburne, to which port she had put in, leaking. A survey at Shelburne pronounced her unseaworthy. An existing insurance on the cargo was cancelled, and the defendant was applied to to insure it. Insurance on it from Shelburne was refused, but the defendant agreed to insure it from Yarmouth, to which port the vessel was to proceed from Shelburne. A promissory representation was made orally, and in the application for insurance, that the vessel was "to be repaired at Yarmouth." On her arrival at Yarmouth, it was found, by a new survey, that no repairs were required, and none were made. In a suit to recover for a loss, the Court ruled, that if, when the vessel arrived at Yarmouth, she was examined, and it was found that no repairs were needed, and none were in fact necessary, but she was seaworthy for the voyage, there was no failure to comply with the representation: Held, that the ruling was correct.

The Court also ruled that the burden of proof was on the defendant to establish the unseaworthiness of the vessel: Held, that this was erroneous, because, on proof of the representation, and of the failure to repair at Yarmouth, it devolved on the plaintiff to excuse the non-compliance with the representation.

(Before WALLACE, J., Southern District of New York, April 8th, 1881.)

WALLACE, J. The plaintiffs having obtained a verdict, the defendant now moves for a new trial, alleging error in the rulings of the Court on the trial. The action is on a contract for marine insurance, evidenced by a certificate, whereby the defendant undertook to insure the plaintiffs for $3,000, on a cargo of potatoes, or board the schooner Lacon, "at and from Yarmouth, (Nova Scotia,) to New York city." At the time the insurance was effected the vessel was at Shelburne, to which port she had put in, leaking and in distress. A survey was ordered at that port and the vessel was pronounced unseaworthy. By an arrangement between underwriters who

Lunt v. The Boston Marine Insurance Company.

had insured the cargo and the plaintiffs, the insurance was cancelled and the plaintiffs were paid $2,000. They thereupon applied for new insurance to agents of the defendant. The defendant's agents refused to insure the cargo from Shelburne, but agreed to insure from Yarmouth, to which port the vessel was to proceed from Shelburne. The action was defended upon the theory that the plaintiffs represented that the vessel should be repaired at Yarmouth and no repairs were made; also upon the ground of concealment and of unseaworthiness.

It was not claimed upon the trial that there was a warranty in reference to the repairs, but that there was a promissory representation made orally, and in the application for insurance, that the vessel was "to be repaired at Yarmouth." Evidence was given by the plaintiffs, that, upon the vessel's arrival at Yarmouth, a new survey was had, and it was found, upon examination, that no repairs were required. The Court ruled, that the defence of concealment could not be predicated upon the failure of the plaintiffs to disclose the fact of a survey at Shelburne, or the cancellation of the previous insurance, because the law implied a warranty of seaworthiness, and the underwriter is presumed to rely upon the warranty, and the applicant for insurance need not proffer any disclosures to the prejudice of the ship's seaworthiness; and ruled that the cancellation of the outstanding insurance was a fact extrinsic to the risk. The correctness of this ruling is not contested on the present motion. The Court also ruled, that if, when the ship arrived at Yarmouth and was examined, it was found no repairs were needed, and no repairs were in fact necessary, but the vessel was in a seaworthy condition for her voyage, the defendant could not prevail upon the defence of a non-compliance with the representation; that the fair construction of the representation, assuming it not to have been the statement of an expectation but a promissory representation, was, that the vessel was to be put in a seaworthy condition at Yarmouth for her voyage, before the commencement of the risk, and that, if, when she left Yarmouth, she