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"New York, March 20, 1891. “Received of J. B. Lippincott Company the sum of three hundred dollars ($300), which I acknowledge to be in full payment of all rights, title, and interest, in this country and abroad, of the story of which I am the author, entitled 'Carlotta di Carlo,' the name of the same to be changed hereafter. I hereby agree that the J. B. Lippincott Company may publish this in any form without further recompense to me
Ruth McEnery Stuart." The complainant signed and returned the receipt, and the story was copyrighted, and published in said magazine. Afterwards she wrote said editor, asking to recover her copyright, and in response received an assignment thereof to her. Prior to said assignment the Lippincott Company had sold said story to said American Press Association, which prepared plates of said story, printed 6,000 copies of sample sheets thereof, with other stories, under the title of "Novelettes,” and offered to sell the plates for publication in installments to its newspaper patrons throughout the United States.
Counsel for defendant claims that the foregoing receipt fairly states the contract between the parties, and that by said contract the Lippincott Company, the assignor of said press association, acquired a perfect title in law and equity to said copyright. Complainant denies that said receipt states the contract between the parties, and claims that when the editor of Lippincott's Magazine called on her it was agreed that she should enlarge said story, and change its title, for the express purpose of having it published as the initial story in one number of said magazine, and for no other purpose; and that for that reason she accepted a much lower price than she would otherwise have done. In view of the conclusions reached, I shall not review at length the evidence upon this point. If it were necessary to the decision of the question, I should incline to hold that the parties have put a practical construction upon the contract by which the assignment was limited, as claimed by complainant. My reasons for this are as follows: The negotiations and correspondence were carried on between complainant and the editor of Lippincott's Magazine, as its editor and manager only. The story was modified for the express purpose of adapting it for publication in said magazine. The repeated assertions by complainant in her letters to said editor that there was no agreement to part with her copyright were not denied by him. The copyright was reassigned to her without consideration, at her request, without mention of its sale, or claim of further right therein. The language of the receipt, prepared by said editor, “I hereby agree that the J. B. Lippincott Company may publish this in any form without further recompense to me,” would be mere surplusage if the prior language were intended as an absolute assignment. In these circumstances, in view of this practical construction of the contract by the parties, the receipt may fairly be so interpreted as to harmonize with the claim of complainant as to their original understanding. The testimony of said editor shows affirmatively that he negotiated on behalf of the magazine only, and fails to satisfactorily show that he disclosed any intention to use the article for any other purpose.
The exhaustive briefs of counsel for defendant contain several de fenses, only one of which will be considered, as it alone appears to be fatal to complainant's claim. The answer alleges, and the evidence shows, that said American Press Association, of which the defendant is president, is a corporation. There is no question as to its financial responsibility. It has not been joined as a party defendant in this suit. The evidence shows that the alleged infringing acts were committed by said corporation, contrary to the express instructions of defendant, and without his knowledge, and that the first intimation he had that said story had been published by said corporation was when he was served with the papers in this case. In these circumstances it would be contrary to the well-settled rules of equity to hold this defendant alone personally liable for such wrongful acts, merely because he was an officer of said corporation. Ambler v. Choteau, 107 U. S. 586, 1 Sup. Ct. 556; Howard v. Plow Works, 35 Fed. 743; Cahoone Barnet Manuf'g Co. v. Rubber & Celluloid Harness Co., 45 Fed. 582. This question is considered, and the cases bearing thereon are collected, in Linotype Co. v. Ridder (recently decided by me) 65 Fed. 853. Let the bill be dismissed.
SINGER MANUFG CO. V. SCHENCK.
(Circuit Court, S. D. New York. May 22, 1895.) 1. PATENTS-PRIOR USE-ADMISSIBILITY OF EVIDENCE.
Affidavits made by witnesses more than 10 years before the hearing, in respect to the details of construction of a machine which they had not seen for nearly 20 years prior to the date of the affidavits, are not admissible as evidence, when, after reading the same, the witnesses disclaim any present recollection of the features of the machine, and merely say
that, if they swore to the affidavits, they were true. 2. SAME-PRIOR USE-EVIDENCE.
The defense of prior use cannot be sustained upon the testimony of witnesses who attempt to describe the details of a machine from memory after the lapse of nearly 30 years, where their statements are vague, uncertain, and contradictory. To sustain the defense, the evidence in support of it should be so strong as to exclude every reasonable hypothesis
that the structure was of an experimental and tentative character. 8. SAME-SEWING MACHINES.
The Miller and Diehl patent, No. 224,710, for an improvement in bandwheel bearings for sewing machines, held not invalid on the ground of prior use, and held infringed. This was a bill by the Singer Manufacturing Company against Allen Schenck, president of the New Home Sewing Machine Company, for alleged infringement of a patent relating to an improvement in sewing machines.
This action is founded upon letters patent No. 224,710, granted February 17, 1880, to the complainant, as assignee of the inventors, Miller and Diehl, for an improvement in band-wheel bearings for sewing machines.
The specification states as follows: "The object of our invention is to do away with the rattling of the band wheel and to reduce the friction, also to simplify and condense the parts, lessening the cost and avoiding the complications of the anti-rattling journals in use. * * On band wheels as formerly constructed, having a bearing on a stud, the pitman was applied outside the bearing, causing a side or jamming movement and excessive wear and lost motion. In our improvement the power is applied at the center, and the pressure is always directly upon the bearings, so that there is no tendency to a side or jamming motion, and the friction and wear are consequently reduced to the least amount. The crank is supported at one end by the central brace, and at the other end by one of the side pieces of the frame. By this arrangement a great advantage is obtained, as the crank presses down in direct line both upon the side of the frame and upon the central brace, thereby equalizing and distributing the weight throughout the entire frame without any lateral pressure whatever or any tendency to sag or break the side piece, E, or to rack the frame when the machine is in operation. The crank also is thus very much shorter than if extended the whole length of the frame as formerly, and the cost, friction, and wear are proportionally reduced. The bearings also being conical instead of straight, the end play of the crank is prevented, and an adjustment for wear and lost motion may be readily made by means of a set-screw on the central brace or on the side piece, or on both the central brace and the side piece, or by the use of an adjustable lug or bearing upon the central brace or the side piece, substantially as H, Fig 1."
The first and second claims only are involved. They are as follows: "(1) In the frame of a sewing machine, the central brace, A, as a support or bearing for one end of the crank, C, operating either in direct contact with the said central brace, A, or connected therewith by means of an adjustable lug or bearing, substantially in the manner and for the purposes described. (2) In the frame of a sewing machine, the crank, C, having the conical bearings s g1 s2 s3, in combination with an adjustable lug or bearing on the central brace, A, or on the side piece, E, substantially in the manner and for the purposes described."
The defenses are noninfringement, if the claims are narrowly construed, and anticipation by a structure made by one J. E. Burdge, of Cincinnati, Ohio. prior to 1864.
Livingston Gifford, for complainant.
COXE, District Judge (after stating the facts). The important question in this cause is whether or not the invention is anticipated by the Burdge structure alleged to have been made about 30 years ago. This was the principal question discussed at the argument, and, although other defenses are suggested in the defendant's brief, there can be little doubt that the complainant is entitled to a decree if the Burdge defense is removed from its path. Invention is established and infringement is hardly disputed. The Burdge machine is said to have been invented by Jonathan E. Burdge some time during the war of the Rebellion and prior to 1864. The burden of establishing this defense rests heavily upon the defendant; it must be proved beyond a reasonable doubt. The wisdom of this rule was never more apparent than in the present
The difficulty, if not the impossibility, of procuring accurate oral testimony regarding commonplace events occurring 30 years ago, is obvious to all. The exhibit "Burdge Sewing Machine Stand” was used for many years as a flower stand in the dooryard of J. E. Burdge at Home City, near Cincinnati. When resurrected for the purposes of litigation it was merely an iron frame consisting of two side pieces connected with a saw-buck brace. Between one of the legs and the brace there was a crank shaft with a U-shaped crank, one end being mounted in a boss cast upon the machine leg and the other in an adjustable bearing screw which was held in place by a lug screwed to the cross brace. This was all. There was no table, treadle, pitman, band wheel or band. Some boards had been laid over the iron frame, and for many years it had stood outdoors as a stand for flower pots. If this structure were ever used in connection with a sewing machine, it must have been prior to or during the early part of 1864. No one pretends to have seen it so used after that date.
The testimony offered upon this issue is exceedingly voluminous, but it will only be necessary to state generally the reasons for the conclusion reached. Affidavits made in 1883 by two of the defendant's witnesses, Olive Burdge and James Skardon, were offered in evidence under objection. These affidavits were clearly inadmissible. Assuming that papers made 20 years after the event can in any view be used to refresh the recollection of a witness, these affidavits certainly could not be so used, for both witnesses disclaimed any present recollection of the important features of the Burdge machine even after reading the affidavits. All they could say was that if they swore to the aftidavits they were true. When they testified in this cause their minds were blank upon all important matters in controversy. There is no theory upon which the affidavits are competent. Without them the testimony of the witnesses is too indefinite and uncertain to sustain any finding of fact. Mrs. Martha Cole, another of defendant's witnesses, was shown the “Burdge Sewing Stand," and was asked when before she had seen a stand of the same construction. Her answer was, "I recognize the stand as the same one we had at home during the war.” It is not pretended that she had the identical stand. What she meant was that she had one of the same construction. Mrs. Cole's mother did have a Burdge sewing machine during the war, but Burdge took it back in less than a year for nonpayment of the purchase money, and the witness never saw it thereafter. Mrs. Cole was between 13 and 14 years of age when the machine was at her home. Her attention was not called to the feature here in controversy, and all she was able to say was that the stand shown her in 1892 was of the same character as the stand seen by her 30 years before. Of course this proves nothing. Even had her attention been called to the crank shaft, and she had testified that it was like the crank shaft of her mother's machine, it would have been entitled to little weight. It is doubted if a single sewing woman in the country can recall the minute details of the driving gear of a sewing machine which she has not seen for 30 years.
That part of the mechanism above the table to which her attention is constantly called she might possibly remember, but the particular construction of the crank shaft and its bearings would make only a fleeting impression on her mind. The probability is that she would not examine it at all, and if she did she would not retain such distinctions as we are here dealing with in her mind for a single day. Mrs. Cole says nothing that aids the defendant; the circumstances were such that she could say nothing. Human memory is incapable of performing such miraculous feats. one skeptical on this subject test it by attempting to describe the details of construction of a complicated machine to which his attention was never particularly called and which he has not seen since 1865. No matter how retentive is his memory, he will probably find that certainty and accuracy are simply out of the question.
This leaves the Burdge prior use to depend upon the testimony of one witness—William M. Burdge, a son of the alleged inventor. The considerations to which allusion has just been made apply to this witness as well. If the court is to overthrow a patent upon the testimony of a single witness as to events happening 30 years ago he should be a witness in whose word the court can place implicit reliance. If for any reason the court is in doubt as to the truth of his testimony the defense must fail. The court is now in doubt, and the reasons therefor may be summarized as follows:
First. The witness was but 16 or 17 years of age when he worked at his father's shop, and he was only there about a year. For the reasons already stated, it is hardly possible, in such circumstances, that minute details can be accurately remembered. Indeed, the sit