the rods"; to reduce the pivotal connections as far as possible so as "to give the casing [cone] free and sensitive vertical movement"; to place the mechanism entirely outside the cone so as to escape interference from the material therein; to reduce to the minimum levers, rollers, pivots and other parts having frictional contacts. Plaintiff sums up his accomplishment as follows:

"In the claims now presented applicant recites the use of a single vertically swinging lever supporting a casing, a second pivoted lever carrying a valve and means connecting the pivoted lever and the valve lying entirely outside of the casing. It will be seen that applicant uses but two pivots and a balance and that the parts are so disposed as to prevent their contacting with frictional faces."

Thus, the file wrapper makes clear that what plaintiff claimed, what he was willing to and did accept and only what the Examiner would allow was a particular combination of parts in a device which rested, for patentability, upon the proposition that such combination reduced friction or interference with the outlet valve to the minimum and thus more perfectly accomplished the result of maintaining the level of solid matter in the cone.

(b) The Prior Art.

The citations from the prior art introduced by defendant to limit the scope of the patent are, in chronological order, as follows: Reinert 641,227 (January 9, 1900), Allen 754,732 (March 15, 1904), Allen 754,911 (March 15, 1904), Dull, 1,005,522 (October 10, 1911), Allen 1,147,356 (July 20, 1915), Gomez 1,220,092 (March 20, 1917) and Dull 1,258,100 (March 5, 1918). Inspection of the claims and devices covered by these patents reveals much that appears in plaintiff's device. One argument advanced by plaintiff is that most, if not all of these devices are for "separators" and not for "classifiers." This argument is not well founded as to any of these patents because several of them are for "classifiers" while the remainder are in the same or, at very least, a closely allied art and, therefore, are properly citable as suggestive to one attempting to devise a classifier. All of them are devices to separate solid matter from a watery mixture; all of them employ an inverted cone in which to collect the separated solids; all have an opening at the bottom of the cone to release the solids; all have a valve controlling this outlet; all govern the operation of this valve automatically by the weight of the loaded cone; in all, the valve

tripped when the loaded cone reached a determined weight and closed when that weight was reduced below the determined standard. Thus, the broad purpose of separating solids from a watery mixture through the employment of an inverted cone and the release of the collected solids through a bottom outlet controlled by a valve which was governed by the weight of the loaded cone was well known and established when plaintiff entered the field. But plaintiff had in view a different and narrower purpose than separating solids from the mixture. His purpose was to separate solids of relatively the same size from the mixture. The Allen 754,732 was not designed to and could not be a classifier because the device consisted of two superimposed cones connected by a tubing the lower cone holding the solids, thus the mixture did not directly enter the collecting cone and there was absent the essential conditions of a classifier, which were a constant level of solids in the cone and the direct discharge of the mixture into that loaded cone. In all of the other citations, there is but one receptacle (a cone in all except Dull 1,005,522) into which the mixture pours. Operation of all of these, except Allen 1,147,356, is governed by the weight of the loaded cone (apellee's method), which weight corresponds to the level of solids and in each the weight or level is subject to regulation. Therefore, no reason has been shown why any of these (except possibly Dull 1,005,522 and Allen 1,147,356) could not be made to act as a classifier. In all of them, except Allen 1,147,356, the valve is actuated by downward vertical movement of the loaded cone. In Reinert, the cone is rigidly attached near the bottom to a counterweighted lever and tilts when beyond the tripping weight. In Allen 754,732 and Allen 754,911, the cone is pivoted at one side of the top and tilts to the overload. In Dull 1,005,522, the cone is supported at one side on knife-edge trunnions resting in shallow bearings and tilts thereon to the load. In Gomez 1,220,092, the cone is supported near the bottom by a counterweight lever and settles, vertically between guiding standards, with the overweight. In Dull 1,258,100, the cone is suspended on two rods at opposite sides and moves downward under weight (the operation of the valve is somewhat different in this patent from that of plaintiff or the other citations). In several (Allen 754,732, Allen 754,911, Dull 1,005,522 and Gomez 1,220,092) the valve connections are entirely outside the cone. In the others (Reinert, Allen 1,147,356 and Dull 1,258,100), they are

within the cone. Without collecting or detailing other features of these citations, it is clear that there had been much investigation and discovery along the same lines, with the same principles of operation and very similar (often identical) features of construction as employed by appellee.

Therefore, it is clear that appellee's device was secondary, was for a combination and was for a combination which must be very closely construed to its exact members, relations and operation, if it is to avoid the prior art and to remain within the accepted meaning as revealed in the file wrapper.

Infringement.

[4] In the light of this close construction of appellee's patent and the resulting narrow range of equivalents, the matter of infringement rests upon a comparison of the two devices involved here. The cardinal distinguishing characteristic claimed by appellee for his device is its simplicity and accuracy of operation. He says he attains this by eliminating friction of operation of the vaive through his method of suspending the cone from a single knife edge, placing all operating parts outside of the cone and decreasing the number and friction contacts of those parts. Placing the parts outside the cone was old and introduced no new element or

feature. He has no fewer valve operating parts than Allen 754,732 or Dull 1,005,522, both of which were outside the cone. The method of supporting the cone is very different from all of the citations except Dull 1,258,100. There is some general similarity in principle to that patent of Dull, but there is a difference in flexibility and number of supporting parts which would naturally give greater freedom of movement and less interference, through friction, in favor of appellee's device. There are some features of the construction of the interior of the cone which are new, to wit, the vertical ring 6 in the upper part of the cone and the plate 34 near the bottom. Only the first of these is covered in the claims (Claim 2) and neither is urged here.

Compared with appellant's device, as to these cardinal features of suspension of the cone and number of valve operating parts, there appears quite a difference. As to the suspension, the difference has been well likened, by counsel, to that between a yard arm scale and a platform scale. Boylan's entire device is suspended from a single horizon. tal lever resting medially upon a single knife-edge support. From one end of this lever, the cone freely hangs; to the other

end is movably attached the long lever which extends downward to the outward end of the valve lever. The counterweight which controls the action of the cone is placed on the supporting lever toward the end opposite that to which the cone is attached. Appellant's suspension is made up of three connected units-the cone, the rigid supports and the member connecting those two. Appellant's cone is rigidly attached to a square frame placed somewhat below the upper edge of-the cone. Two opposite sides of this frame are extended at both ends with knifeedge bearings on the under sides of these projections crosswise at the ends thereof. The rigid support is of a separate unit which does not come in direct contact with the cone or cone frame. It is a rigid frame placed on the ground and having two elevated horizontal members paralleling the extended sides of the cone frame. Between these horizontal members two other oppositely horizontal rods are rigidly attached on the upper sides of which near each end are welded or attached upwardly projecting knife-edge bearings. The connecting members are as follows: two pairs of horizontal rocker arms having holes near their outer ends through which pass the above cross supports of the rigid supporting member in such wise that the upper surface of the holes rests upon the four upwardly projecting knife-edge bearings; the outer ends of the two paralleling arms rigidly attached to a connecting rod which parallels on the outer side the supports having the upper knife-edge bearings and which also has knife-edge bearings on the upper sides near the ends; one pair of the rocker arms are hinged at the inner ends on a bolt to which is movably attached a lever extending downward to connect with the valve lever; the other pair of arms are not joined but have holes near the inner ends from which are suspended the counterweights governing the movement of the cone. cone frame is suspended on four C shaped clevises the upper inside surface of the clevises resting on the knife-edge bearings on the rods connecting the rocker arms and the lower inside surface of clevises supporting the knife-edges on the projecting ends of the cone frame. From the above description of the two devices, it is seen that the method of support is very different in the two devic

es.

The

In Boylan, there are very few suspension parts and the entire suspension is from above. In Wood, the entire suspension is from below and is made up of three distinct units, each, in turn, composed of several parts. Also, Boylan's cone may vary its posi

tion horizontally rather freely while Wood's cone has practically no lateral motion. Boylan's may tilt, Wood's cannot.

As to valve operating parts, consideration of the two devices will at once suggest the wide difference between the very few used by Boylan and the many used by Wood. Beside the one supporting knife-edge, Boylan has but four points of frictional movement. Wood has fifteen, including twelve knifeedge contacts.

About the only similarities between the two are that each releases the solid matter by a valve controlled by the varying weight of the loaded cone influenced by counterweights-all of which were old in the art.

We think the decree should be reversed with instructions to set the decree aside and enter decree for defendants below. It is so

2. Specific performance 119-Party in default, seeking specific performance of contract in which time is material, has burden of excusing default.

Party, seeking specific performance of con

tract in equity court, will not readily be afforded relief, if he has not performed on his own part within time allowed in contract; and where time for performance is material, as distin guished from essential element, party in default has burden of explaining and excusing his default.

3. Specific performance 100 Great decrease in value of land is important in determining whether specific performance shall be granted delaying party.

Great decrease in value of land during delay in performing land contract is important element to be considered in determining whether specific performance shall be granted to party responsible for delay.

4. Specific performance 92(1)—Tender of oil lease 92 months after execution of agree

ment, and over 30 days after acquiring title,

held not within reasonable time.

Where plaintiff, who by written contract agreed to sell to defendant his interest in oil and gas lease under terms of agreement be

tween plaintiff and third persons, did not tender performance until 9 months after execution of contract and more than 30 days after he acquired title, during which time value of lease fell from high point to nearly zero, held that, in view of local custom requiring leases to be tendered within 10 days or 2 weeks, plaintiff time and was not entitled to specific performdid not tender performance within reasonable

ance.

5. Mines and minerals 74—Mineral grant, requiring grantee to pay annual rent for surface occupied, held not merchantable title, within contract for oil lease covenanting against incumbrances.

Mineral grant, providing that grantees or their assigns agreed to pay reasonable rental, not exceeding $3 annually per acre, for portion of surface occupied in their operations, held not to convey merchantable title required by contract to sell oil and gas lease and covenant of assignment of lease, providing that plaintiff's interests in property were free of all incumbrances, and plaintiff was not entitled to specific performance.

6. Specific performance 95-Vendor, failing to offer to remove incumbrance at trial, or show it could be removed, is not entitled to specific performance.

Specific performance of contract to purchase will not be compelled, where vendor at time of trial fails to offer to remove incumbrance or show that it could be removed by him.

United States for the Western District of Appeal from the District Court of the Oklahoma; John H. Cotteral, Judge.

Suit by F. E. Herring against the Texas Company. Decree for plaintiff, and defendant appeals. Reversed, with directions.

C. B. Cochran, of Oklahoma City, Okl. (C. B. Ames, of Oklahoma City, Okl., John R. Ramsey and B. W. Griffith, both of Tulsa, Okl., Harry T. Klein, of New York City, and Ames, Lowe & Cochran, of Oklahoma City, Okl., on the brief), for appellant.

A. Carey Hough, of Oklahoma City, Okl. (George A. Henshaw, of Oklahoma City, Okl., on the brief), for appellee.

Before KENYON and BOOTH, Circuit Judges, and KENNAMER, District Judge.

BOOTH, Circuit Judge. This is an apof a contract. On the 10th of April, 1923, appeal from a decree for specific performance pellee Herring made a contract with appellant, the Texas Company, reading as follows:

"Contract.

"This agreement, entered into this 10th day of April, 1923, by and between F. E. Herring, party of the first part, and the Texas Company, party of the second part, witnesseth:

"That the party of the first part hereby assigns and sells to the party of the second part all of his right and interest in and to an oil and gas lease under the terms of an agreement had by and between the said F. E. Herring and W. A. Sanders and T. R. Wise, dated the 30th day of March, 1923, and covering the following described lands in Beckham county, Oklahoma, to wit: The west one-half of the northwest quarter of section 26, township 9 north, range 24, W. I. M. at and for the purchase price of $150 per acre.

"It is understood that this assignment shall carry a right to all of the oil and gas in and under said premises excepting a oneeighth royalty. When party of the first part procures a title to said interest, he shall submit an abstract of title to the party of the second part, and the party of the second part shall have five days for the examination thereof. and to notify party of the first part of any corrections to be made, and the party of the first part shall have fifteen days for correction of any defects, and during this time this contract shall remain in force and effect.

"This contract, with a deposit of $3,000 made by the party of the second part, shall be placed in the First National Bank of Sayre; balance of purchase price to be paid when a merchantable title is made. [Signed] F. E. Herring. The Texas Company, by F. M. Kelleher, Attorney in Fact."

Herring had no lease from Sanders and Wise, but he had a contract for a lease, reading as follows:

"This agreement, made and entered into this 30th day of March, 1923, by and between W. A. Sanders and T. R. Wise, parties of the first part, and F. E. Herring, party of the second part, witnesseth:

"That the parties of the first part hereby agree to sell and convey to the said party of the second part an oil and gas lease, five-year commercial 88 form, and a deed carrying onehalf of the royalty, in and to the following described lands in Beckham county, Oklahoma, to wit: The west half of the northwest quarter of section 26, township 9 north, range 24 W. I. M.-in and for the purchase price of $25 per acre.

"It is understood that the parties of the first part hold said land under contract for deed with J. Luther Taylor, and this contract on their part is made subject to securing such deed, and if for any reason a good and merchantable title cannot be conveyed by the parties of the first part, both parties shall be relieved from this contract without further obligation. Parties of the first part shall have fifteen days to procure said title and to sub

mit an abstract of title showing the merchantable title to the lands described and party of the second part shall have five days for the examination thereof. If title not procured within said fifteen days, party of second part shall have the privilege of canceling this contract.

"This contract, with $500 paid by the party of the second part, shall be placed in the First National Bank of Sayre, and the balance of the purchase price to be paid on approval of abstract. [Signed] W. A. Sanders, T. R. Wise, Parties of the First Part. [Signed] F. E. Herring, Party of the Second Part."

In his bill, Herring alleged that on January 29, 1924, he made tender of performance under his contract with appellant. The bill further alleged that performance was refused by appellant.

The defenses to the suit were: That there was no mutuality in the contract; that the contract was too indefinite to be the subject of specific performance; that the contract was void under the statute of frauds; that Herring did not tender in performance on his part a merchantable title; that the tender of performance on the part of Herring was not made within the time limited by the contract, or within a reasonable time. [1] We take up the last defense first. The contract was dated April 10, 1923, and tender of performance was not made until January 29, 1924. No time for performance was fixed in the contract itself, and we do not think that the time provisions in the contract which Herring had with Sanders and Wise were applicable; hence a reasonable time would be implied by law. What was a reasonable time depends upon all the facts and circumstances of the case. Briefly stated they are as follows:

The land in question was in Beckham county, Oklahoma, and in the vicinity of lands where oil wells were being drilled; there were already two producing wells in the county;

the acreage was increasing in value; the contract between appellee and Sanders and Wise looked to an early perfecting of title, and appellee, under that contract, was in a position to protect himself against unreasonable delay by cancellation of the contract; the subjectmatter of the contract in controversy, an oil and gas lease, was of such character that a short time would be considered a reasonable time in which to perfect title and tender performance; the custom of the trade in selling oil and gas leases of lands within several miles of a discovery well, in what had theretofore been unproven territory, was that the lease should be tendered in ten days or two weeks;

both parties knew that the market value of such leases in that locality was in a rapidly fluctuating state; the vendee was not given possession of the land; $3,000 was placed in escrow by the vendee, upon which loss of interest was daily accruing; the delay was being caused by no fault or neglect on the part of the vendee. On the other hand, appellant knew that Herring was not in a position to perform at once. The contract which Herring had with Sanders and Wise showed that.

It is claimed by appellee, and his testimony tends to show, that appellant knew that the title was in litigation. This is denied by appellant, and we are of opinion that the weight of the evidence supports appellant's contention that it did not know at the time the contract with appellee was made that the title was in litigation. However, appellant learned this before May 8th, and on that date wrote to appellee that it did not consider that it was bound to await the outcome of the litigation, and demanded performance. Appellee replied that the title would be perfected at the earliest possible date. No extension was asked by appellee, and none was granted by appellant. The incomplete title finally procured was not the result of an adjudication in the litigation, but the result of a compromise, and there is no satisfactory showing that this compromise could not have been obtained at any time.

Appellee did not tender performance until 9 months and 16 days after the contract was made. Furthermore, the appellee did not tender his title until more than 30 days after he acquired the same. He acquired the title tendered by compromise of the litigation December 24, 1923. He did not tender performance until January 29, 1924. This delay is attempted to be explained or excused by reason of the fact that appellee had not yet obtained the abstract of title, and, when he did obtain it, he found that it was necessary to get a patent from Washington, and that this caused the delay. But no excuse is shown for not getting the abstract sooner, and the patent Both were obtainable during the 9 months which had elapsed since the date of the contract between appellee and appellant. The abstract was not obtained until December 24 or 25, 1923, or possibly not until January, 1924. The patent was not obtained and filed until January 21, 1924. During the 9 months period the value of the lease had fallen from a high point to practically zero. One of the wells being drilled in the vicinity was plugged and abandoned between January 14 and January 28, 1924.

sooner.

specific performance of a contract, he will not be afforded relief readily, if it appears that he has not performed on his own part within the time allowed. A distinction is made between cases where time is essential and where it is merely material. Conceding, but without deciding, that the case at bar falls within the latter class, yet the party in default has the burden of explaining and excusing the default. Pomeroy on Specific Performance (3d Ed.) § 402, reads:

"If time is material a failure to comply with the terms of the contract is not necessarily a bar to an enforcement; but it throws upon the defaulting party the burden of explaining his neglect and of satisfying the court that, notwithstanding the failure, a denial of the remedy to him would be inequitable. Certain conditions must, therefore, be met and fulfilled by the party who asks the aid of the court in the face of his delay. In the first place, the delay must not have been too long; and what is reasonable or unreasonable in point of duration must depend very largely upon the circumstances of each case, and especially upon the cause or occasion of the delay. A delay resulting even from inevitable accident may be so long, that it would be inequitable to enforce performance upon the other party. In the second place, the delay, whether long or short, must be accounted for and explained by facts and circumstances which are regarded by courts of equity as sufficient to justify and excuse it."

And again (section 403):

"Except in the comparatively few cases however where time is immaterial, and delay, long, is hardly of any consequence, the doctrine is familiar and fundamental that a party seeking the remedy of specific performance as must show himself, in the language of many judges, to have been 'ready, desirous, prompt, and eager.'

the actor