22 F.(2d) 403

Did the defendant infringe? The proofs show that defendant moistens wood chips or sawdust with magnesium chloride and then mixes them or it with powdered magnesium oxide until they are coated, and thereafter mixes these coated chips with magnesium chloride, which results in a loose mixture of coated chips which are then compressed, by hydraulic pressure, into a homogeneous mass substantially identical with the plaintiff's product. Just why the vegetable material is first moistened with magnesium chloride or what final effect it has does not clearly appear.

one to fifty hours; I prefer for general use about twenty-four hours; I pulverize what remains. I use this product, or the magnesia of commerce, according to convenience or economy, which may depend, in part, upon the place where the cement is made and in part upon the result proposed. I thoroughly mix with the magnesia, however obtained, any mineral substance, as sand, gravel, the dust and fragments of marble and other stones, emery or other grits, or cotton, wood, or other fibrous material, according to the result desired. The proportion of such substances varies with the work to be done, from one-half to twenty or more to one. This mixture is then moistened with a solution of either of the following substances of the density of from 20° to 30° Baume, instead of the chloride of magnesium or the bittern water, as described in my said patent, viz. chloride of barium, chloride of strontium, chloride of aluminum, chlorhydrate and bisulphate of ammonium, sulphate of magnesia, sulphate of aluminum, solutions of potash or of soda, or of the carbonates of these bases, as well as by the solutions of most of the double chlorides and other double salt containing salts with magnesia basis. These solutions ean be employed singly or mixed together, or with the chloride of magnesium. They are employed more or less concentrated, according to the nature of the cement desired to be obtained. The mixture is wet sufficiently, in some cases, to form a mortar, and in some cases only to produce a dampness like that of molding sand when prepared for use. The plastic substance thus formed is then poured, pressed, or rammed into molds, or rolled or spread in slabs or sheets, or other form required, and soon sets, and forms hard, strong, PAGE STEEL & WIRE CO. v. BLAIR EN

and durable stone or other product, partaking of the color and qualities of the substances combined."

It will serve no good purpose to analyze all the other patents. We have carefully considered them, and do not think that they anticipate Sutter.

[2] The several elements in Sutter's combination conjointly, each element acting according to the law of its own nature, produced a new floor. He was the first to bring these elements together in a unitary whole, which is therefore patentable. National Cash Register v. American Cash Register (C. C. A.) 53 F. 367; Macbeth-Evans Glass Co. v. L. E. Smith Glass Co. (C. C. A.) 284 F. 193; Blake v. Robertson, 94 U. S. 729, 24 L. Ed. 245; Lock Co. v. Sargent, 117 U. S. 536, 6 S. Ct. 934, 29 L. Ed. 954.

[3] The gist and principle of the invention lie in lightly coating the chips with mineral matter and then compressing them into a homogeneous mass having the qualities described in the patent, and these the defendant's product has. The patentee had to mix the chips either with magnesite or magnesium chloride first. But the patent does not state, nor do the proofs show, any advantage in the order. So far as appears, the order might have been reversed without effect. The transposition of some of the steps in a patented process, which does not change the principle, mode of operation, or result, does not avoid infringement. Malignani et al. v. Germania. Lamp Co. (C. C.) 169 F. 299; Malignani et al. v. Hill-Wright Electric Co. (C. C.) 177 F. 430; General Electric Co. v. Hill-Wright Electric Co. (C. C. A.) 174 F. 996. The defendant in our opinion uses the process and obtains the product of the patent and therefore infringes it.

The decree is accordingly affirmed.

GINEERING CO.

Circuit Court of Appeals, Third Circuit.
September 22, 1927.

Rehearing Denied November 1, 1927.
No. 3468.

1. Evidence 523-Expert testimony as to
value of engineering work held competent.

In determining the value of engineering work done by plaintiff in making alterations in a manufacturing plant, the ability required, the nature of the work, and attendant risks, and the necessary labor and time, were all to be considered, and the testimony of plaintiff as an expert held competent on the issue.

2. Appeal and error 231 (3)-To review admission of evidence, objection must have been made on specific ground relied on.

To authorize review on error of ruling ad

mitting testimony, objection must have been made on specific ground relied on.

3. Trial 74-Examiner alone may object that answer is not responsive.

The examiner alone has the right to object that the answer of a witness is not responsive to the question.

4. Work and labor 14(1)-Agreement respecting payments under contract held not to include recovery on quantum meruit.

An agreement for advance payment to plaintiff on account of work done under a contract, full performance of which had been deferred by defendant, held not conclusive of the amount due and not to preclude recovery on a quantum meruit.

5. Pleading 313-Bill of particulars cannot serve as interrogatories to elicit evidence or names of witnesses.

Bill of particulars cannot be made to serve as interrogatories to elicit evidence or names of plaintiff's witnesses.

6. Pleading 316-Granting or refusing bill of particulars is largely discretionary. Granting or refusing bill of particulars rests largely in discretion of court.

7. Pleading 323(3)-Affidavit of attorney in sufficient as basis for motion for bill of particulars unless good reason is shown why not made by party.

Motion for bill of particulars should be based on affidavit of party, and affidavit of attorney is insufficient unless good reason is shown for departure from rule.

8. Pleading 320-Bill of particulars not granted where information sought is as likely to be within knowledge of defendant as of plaintiff.

Bill of particulars will not be granted, where information sought is within knowledge of defendant or is as likely to be as within that of plaintiff.

In Error to the District Court of the United States for the District of New Jersey; William Clark, Judge.

Action at law by the Blair Engineering Company against the Page Steel & Wire Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Hershenstein & Finnerty, of Jersey City, N. J. (Edward L. Katzenbach, of Trenton, N. J., and Forrest M. Anderson, of New York City, of counsel), for plaintiff in error.

in connection with its manufacturing plant at Monessen, Pa.," and to supervise all the work involved in making such alterations and additions. The undertaking of the defendant was conditioned by its "desire." It might or might not desire to make any alterations and additions. No obligation was imposed upon it to do so. We held, when the case was here before, that the agreement was void for lack of mutuality and so was unenforceable. But we also held that the agreement was not illegal, and so the complainant could recover for the reasonable value of the work it had performed, services rendered, and money expended. Blair Engineering Co. v. Page Steel & Wire Co. (C. C. A.) 288 F. 662.

The suit before us is for those services, etc. The complainant had a verdict, and the defendant has brought the judgment here for review on the ground that prejudicial error was committed against it in the admission of evidence, in the refusal to order a bill of particulars, and in the refusal to charge the jury that the defendant did not breach the contract.

[1] The alleged error in the admission of evidence related in part to the admission of expert testimony of Thomas S. Blair, Jr., who is the Blair Engineering Company, Incorporated, as to value of work which the plaintiff had done for the defendant in and about alterations and additions to its plant. Mr. Blair testified as to what the plaintiff did in preparing for the construction of what he called "rush work," "the interlaced work," work "referred to by the November 19, 1920, statement." He was permitted over objection to state what the value of the services of the plaintiff for each of these three pieces of work was with the allowance or deduction for supervision which had not been made. Defendant says that the admission of this testimony was erroneous, because Mr. Blair did not qualify as an expert, but, assuming his qualifications, it was then "improper because it does not state the work for which an estimate of the reasonable value is asked" and because "the record did not contain 'a sufficient particularity of specifica

Merritt Lane, of Newark, N. J., for defendant in error. Before BUFFINGTON, WOOLLEY, and tion' of the work claimed to have been done DAVIS, Circuit Judges. to admit an opinion of its value."

DAVIS, Circuit Judge. On February 25, 1920, the parties herein entered into an agreement whereby the complainant, Blair Engineering Company, was to furnish "all the necessary plans and specifications for such alterations and additions as the Page Steel & Wire Company may desire to make

In reply to the objection, the trial judge said: "The witness stated several times, in my recollection, the work he has done. You don't want him to state it all over again, do you?" Defendant's counsel replied: "It would be as indefinite as it has been heretofore stated, perhaps I might agree with that, but I should like, if I could, to get a definite

22 F.(2d) 403

statement from the plaintiff as to exactly what he is claiming and exactly that matter upon which he bases his estimate." The court further said: "I thought we consumed considerable time this morning while Mr. Blair went over it in some detail." Mr. Blair was then examined at length as to his qualifications as an expert and as to the work for which the plaintiff was demanding compensation.

The testimony of Mr. Blair as to his qualifications and the work done under his direction for the alterations and additions to defendant's plant covered over a hundred pages. This was work of a highly technical and professional character, based on a quantum meruit. From the very nature of the case, the exact hours that every person engaged in the enterprise spent on the various classes and items of work, is difficult to give and is not required, just as is true in the case of the fees of lawyers. Ability required in doing the work, the nature of the work, and attendant risks, and the necessary labor and time consumed in doing the work, are items which must be considered, and the testimony was not incompetent even if it left the plaintiff's services somewhat indefinite and vague. Edgecomb v. Buckhout, 146 N. Y. 332, 40 N. E. 991, 28 L. R. A. 816; Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; 28 Ruling Case Law, 675.

[2] The admission of the testimony of James R. Gloyd is assigned as error. Defendant says this testimony was erroneous because his statement of the value of the services rendered by the plaintiff was based, not upon a hypothetical question containing a statement of the services which plaintiff testified it rendered, but upon the work performed by plaintiff company "as testified to." The information should have been elicited by means of a hypothetical question. Shoemaker v. Elmer, 70 N. J. Law, 710, 58 A. 940; Craig v. Noblesville & Stony Creek Gravel Road Co., 98 Ind. 109. But when this question, now objected to, was asked, counsel for defendant asked permission to examine the witness as to his qualifications. After the examination, he interposed an objection and was granted an exception on the single ground that the witness was not qualified as an expert. There was no objection on the ground now raised. To reverse a judge without an objection would be unfair. Further, a mere objection without the statement of the grounds therefor will not sustain an exception. It must appear to the court called on to review the rulings of a trial court, not only that the ruling complained of was objected to, but that

the specific ground of objection relied on for reversal was presented to the court below. Cole v. Cliver, 44 N. J. Law, 212; Mooney v. Peck, 49 N. J. Law, 232, 12 A. 177; Oliphant v. Brearley, 54 N. J. Law, 521, 24 A. 660. We, however, may raise an objection on our own motion under rule No. 11, but we are not inclined to do so, unless there is manifest error which results in harm and great injustice. We do not think the facts here justify us in exercising our power under the rule. Furthermore, it is a question whether or not, on a fair interpretation of what took place when the question was asked, counsel did not consent to the question and waive the hypothetical form. Counsel for defendant said that the question was improper "because it does not state the work for which an estimate of the reasonable value is asked"; that is, it was not stated in a hypothetical question, but was left to be inferred from the facts "as testified to." The court then asked: "How long a question do you think Mr. Lane would have to frame; would he have to repeat the testimony"? The defendant's counsel said: "No, sir; I wouldn't want to ask him to do that; that would be too burdensome, indeed; but, if the witness should state shortly the work, the estimate of which he is making, and your honor rules he is competent as an expert to give such evidence of reasonable value, I presume I could not claim as I have concerning the question." At any rate, the point here raised was not objected to, and in our opinion no harm was done.

Defendant says that the testimony for the plaintiff as to the amount of work it did was contradictory and prejudiced the jury; that Blair testified in the beginning that all the "necessary" plans and specifications for the work had been prepared, but later he admitted, and Falkenburg testified, that all the plans and specifications were not completed. The jury heard all the testimony, and we cannot assume that it was misled by the testimony of the plaintiff and its witnesses, but, on the contrary, assume that it, having heard all the testimony, based its verdict upon the reasonable value of the work actually performed.

Defendant further says that the court erred in admitting plaintiff's testimony as to "customary charges," because plaintiff admitted that there were peculiar conditions connected with this work for which there was no precedent, and therefore there could not have been a customary charge for it; that the custom sought to be established did not apply to the "peculiar conditions" of this

Merritt Lane, of Newark, N. J., for defendant in error. Before BUFFINGTON, WOOLLEY, and tion' of the work claimed to have been done DAVIS, Circuit Judges. to admit an opinion of its value."

22 F.(2d) 403

statement from the plaintiff as to exactly the specific ground of objection relied on for what he is claiming and exactly that matter reversal was presented to the court below. upon which he bases his estimate." The Cole v. Cliver, 44 N. J. Law, 212; Mooney court further said: "I thought we consumed v. Peck, 49 N. J. Law, 232, 12 A. 177; Oliconsiderable time this morning while Mr. phant v. Brearley, 54 N. J. Law, 521, 24 Blair went over it in some detail." Mr. Blair A. 660. We, however, may raise an objecwas then examined at length as to his quali- tion on our own motion under rule No. 11, fications as an expert and as to the work for but we are not inclined to do so, unless there which the plaintiff was demanding compensa- is manifest error which results in harm and tion. great injustice. We do not think the facts here justify us in exercising our power under the rule. Furthermore, it is a question whether or not, on a fair interpretation of what took place when the question was asked, counsel did not consent to the question and waive the hypothetical form. Counsel for defendant said that the question was improper "because it does not state the work for which an estimate of the reasonable value is asked"; that is, it was not stated in a hypothetical question, but was left to be inferred from the facts "as testified to." The court then asked: "How long a question do you think Mr. Lane would have to frame; would he have to repeat the testimony"? The defendant's counsel said: "No, sir; I wouldn't want to ask him to do that; that would be too burdensome, indeed; but, if the witness should state shortly the work, the estimate of which he is making, and your honor rules he is competent as an expert to give such evidence of reasonable value, I presume I could not claim as I have concerning the question." At any rate, the point here raised was not objected to, and in our opinion no harm was done.

The testimony of Mr. Blair as to his qualifications and the work done under his direction for the alterations and additions to defendant's plant covered over a hundred pages. This was work of a highly technical and professional character, based on a quantum meruit. From the very nature of the case, the exact hours that every person engaged in the enterprise spent on the various classes and items of work, is difficult to give and is not required, just as is true in the case of the fees of lawyers. Ability required in doing the work, the nature of the work, and attendant risks, and the necessary labor and time consumed in doing the work, are items which must be considered, and the testimony was not incompetent even if it left the plaintiff's services somewhat indefinite and vague. Edgecomb v. Buckhout, 146 N. Y. 332, 40 N. E. 991, 28 L. R. A. 816; Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; 28 Ruling Case Law, 675.

[2] The admission of the testimony of James R. Gloyd is assigned as error. Defendant says this testimony was erroneous because his statement of the value of the services rendered by the plaintiff was based, not upon a hypothetical question containing a statement of the services which plaintiff testified it rendered, but upon the work performed by plaintiff company "as testified to." The information should have been elicited by means of a hypothetical question. Shoemaker v. Elmer, 70 N. J. Law, 710, 58 A. 940; Craig v. Noblesville & Stony Creek Gravel Road Co., 98 Ind. 109. But when this question, now objected to, was asked, counsel for defendant asked permission to examine the witness as to his qualifications. After the examination, he interposed an objection and was granted an exception on the single ground that the witness was not qualified as an expert. There was no objection on the ground now raised. To reverse a judge without an objection would be unfair. Further, a mere objection without the statement of the grounds there for will not sustain an exception. It must appear to the court called on to review the rulings of a trial court, not only that the ruling complained of was objected to, but that

Defendant says that the testimony for the plaintiff as to the amount of work it did was contradictory and prejudiced the jury; that Blair testified in the beginning that all the "necessary" plans and specifications for the work had been prepared, but later he admitted, and Falkenburg testified, that all the plans and specifications were not completed. The jury heard all the testimony, and we cannot assume that it was misled by the testimony of the plaintiff and its witnesses, but, on the contrary, assume that it, having heard all the testimony, based its verdict upon the reasonable value of the work actually performed.

Defendant further says that the court erred in admitting plaintiff's testimony as to "customary charges," because plaintiff admitted that there were peculiar conditions connected with this work for which there was no precedent, and therefore there could not have been a customary charge for it; that the custom sought to be established did not apply to the "peculiar conditions" of this