MAGUIRE V. EAMES.
761
The only question, then, that remains is this: the complainants, having shown no damages in the case, will be entitled to a decree only for nominal damages. And the only question is, who shall pay the cost of the reference? It was contended on the argument that, inasmuch as no damages have been shown on the part of the complainant, the costs of the reference should be assessed against the complainant. I cannot subscribe to this view of the question for this reason: This. suit was commenced in 1873 or 1874, and the defendants persistently fought and resisted not only the validity of the complainant's patent, but the question of infringement. If they had said frankly. at once, as they now say at the end of the conflict, "we get no benefit and make no profit by the use of that part of our machine which infringes yours, and therefore we are willing to abandon it; we can make just as good a cultivator without using it," and had at once changed or modified the form of their cultivator in that regard, they would have stood in the 'light before. the court of acting fairly and frankly with the complainant; but instead of that they resisted the validity of the complainant's patent. denied that they infringed, and fought him to the bitter end upon the question of infringement; and, when that question was .adjudged 'against fell back upon the question of damages. It seems to me, therefore, upon the evidence, that the entire expense of the reference should be ,adjudged against the defendants. . The exceptions will be sustained so far as anything but nominal damages are found by the master, and a decree entered giving judgment for nominal damages and costs against the defendant·
.
MAGUIRE 'V. EAMES.
«(Jircuit (Jourt, E. D. New York.
September 28, 1880.)
1.
LE'1"l'ERB PATENT-HYDRAULIC POWER ACCUMULATOB-PATENT BROADER THAN IMPROVEMENT.
Patent No. 202,660, granted for an improvement in hydraulic power accumulators, is void, because broader than the improvement.
James Ridgway, for plaintiff. W. H. McDougal, for defendant. BENEDICT. D. J. This action is brought to recover damages and for an injunction to prevent an infringement by the defendant of a patent for an improvement in hydraulic power accumulators, granted to the plaintiff April 23, 187S, and numbered 202,660. Hydraulic accumu-
762
FEDERAL REPORTER.
lators composed of a harrel, a. piston J.:oaded with weights, and pipes connecting the barrel with a pump. and the cylinder of a hydraulic press, were employed for the pUllpose of facilitating the use of hydraulic power prior to 'the plaintiff's invention. The· plaintiff, has presented eviderlce by which he has endeavored: to show that ,he is the inventor of an improvement upon the existing accumulators; such improvement consisting in a change in the location oftha weights from above the piston to below it, so' that the piston is pulled down by wE;jightsattachM below,instead of being pushed down by weights placed above. It i800t pretendeditha.tthe plaintiff, was the first to devise and employ. aocumulators in' with hydtaulicpower. His· invention, acovrding to his own testimony, consists in inttoo.UCiIlg into the accumulators then in use a new feature, namely; 'applyjng .power f io. the:piston of the accumulator, from belowoinsteadof from above. ; If it :ba assumed that, this modification of Ithei machine was original withthe.plahltiff,and if it he also assumed thattbeehange in thelocation of the weights from above the piston to ;below, it was: morethan amBre·mechanical change, still the plaintiff oannotrecover in this action"becaus6 His impo8'sible tonphold the patent upon which he sues. The, only ex.clusiV:6 right that the plaintiff waS entitled to secure by.'patent was the·right to .his impro'vementlBut his patent is not so limited. There is no language in the patent capable of ideath..atthe' inventian consists'of ,.animprovement upon. lJ,n existing ,ma0mne, and .is .limited to the use of the rights of such a,m.achine in at partioular way., Thus, the claim is a.s foll(\wtN "I claim as my invention the power accumulator and regulator herein described, composed of the barrel, C, piston,.D, rod, a, weight, c, and pipes, d, f, for connecting the barrel with a pump and hydraulic cyliuder, the whole combined and arranged for and herein set forth.
Here is nothing to indicate that t4e pla:intiff's inyentipn is confined weights, and there is no attempt whatto the method of ever t6 distinguish the' new part from the old. He claims the entire maohine. The speoifioation conforms to the claim. After pointing out a difficulty found to exist in employing a hydraulic preSS for pressing hats, the specification states that the -object of this invention is to obviate this difficulty,>andC'onaists of a uovelU!fechanismto be interposed between the pump and the hydtau!iccylinder. A drawing is there referred to ,as "a drawing of the mechanism embraced in my invention, and a desoription 'of it is given '. This
ALLEN v.'il,18ILBUI:lJlELS Of POTATO;ES.
drawing and description are a drawing and description of the exist· ing aocumulators employed to obviate a difficulty similar in all respects .the difficulty pointed out in the early part of thespeoifi.:' cation. It in the drawing and the description th'e weights are placed below instead of above the piston, but nothing is 'said to indicate that any part of the machb;te is 'old; qrthat, the inven.tion of the patentee relates to the locality of theweights. There is an entire absence of language from the claim, specification, and drawing from which it can be gathered that the invention sought to be secured re1ates to any particular part of'the machine described. The patent, therefore,if valid at all, would secure the whole mechanism in it, $nd would exclude the public from the right to use So form of accumulator admitted to have been in common use prior to the date of the alleged invention. Such a patent oannotbe upheld. The bill is therefore dismissed, with costs. i
ALLEN V. THREE THOUSAND ONE HUNDRED UfD EIGilTy.THRElll BUSHELS OF POTATOES.
(District Court, E. D. New York, 1.
June 13,1881.)
AFlI'REIGHTMEltT-TRANSHIPMENT OF CARGo-LIEN-DUTIES.
Where a vessel with a cargo of potatoes from the British provinces went ashore on the coast of Maine, and the master, under telegraphic orderB:from the shippers and consignees, sold the cargo at auction, and part ot it was at once shipped in another vessel to Boston, the purchasers paying tlleduties; and subsequently, and Lefore all the potatoes were delivered, the master, under advice of the. agent of the insurers of the cargo, broke off the trade, got the potatoes that had gone forward brought back, refunded the amount paid at auction and the duties paid, and reshipped all the sound part of the cargo in another veBBel to New York, under a fresh bill of lading, for delivery to the {)J:iginal consignees there, and afterwards brought suit to recover freight and demurrage under the original bill of lading, and the amount of duties paid: Held, that the (;ontract of affreightment was ended by the acts of the master in selling the cargo in )iaine, and that he had no lien upon the potatocs transported to New York for the freight and demurrage provided for in the first bill of lading, nor for the sums he had refunded to the purchasers in Maine for duties paid.
Scudder d; Om'ter, for libellant. McDaniel, Lummis x Souther, for respondents. BENEDICT, D. J. This action is brought enforce a lien whic:b, the libellant claims to have upon a cargo of potatoes. The following facts appea:r: