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The law, as declared in these cases, has been recognized and followed in a long line of uniform decisions; and it would seem to be now settled and established law, in insurance cases, if in no others, that a present warranty must be literally true, and a promissory warranty must be literally fulfilled, otherwise recovery is defeated. May, Ins. (3d Ed.) § 156; Wood, Ins. p. 448. If there are adjudged cases to the contrary, I doubt their authority. In saying this, I am not referring to that large class of cases in which the courts have construed stipulations which the insurance company considered a warranty to be merely representations which, so far as the case in hand was concerned, were not material, nor to that other class of cases where the denominated "warranties” have been held to have been modified by other provisions in the policy. See Insurance Co. v. Johnston, 80 Ala. 467, 2 South. 125, and cases there cited. In the present case the trial judge charged the jury that a substantial compliance with the warranty was all that was necessary, and, so far as I can find in the record, he did not instruct the jury what he meant by a “substantial compliance.” In my opinion, this charge was errone ous, because it was not in accordance with the law, and tended to mislead and confuse the jury. It substantially, if not literally, instructed the jury that, with regard to the compliance with a warranty, they might substitute their own judgment of what was necessary, what was reasonable, and what wasequitable. A substantial compliance with a warranty is a very uncertain matter, depending upon the knowledge, relations, and prejudices of the individual called upon to pronounce. A warranty by a merchant not to store gunpowder in his store building is substantially complied with, in the mind of the ordinary juror, as well as to the satisfaction of some judges, when he only stores it once in a while; and a warranty not to use gasoline and other explosive fluids in the insured property is substantially complied with when gasoline is only used once a week,--say on extra occasions. The defendant in this case, according to the evidence, substantially complied with the warranty to keep books, and save them for the information of the insurer, by keeping a full set of books up to within 30 days before the fire, although he thereafter omitted to keep just the book which would have informed the insurer of the amount of goods he had on hand at the time of the fire. He substantially complied with his warranty to keep his books in an iron safe by putting, on the evening before the fire, all the books in the safe, except one, which happened to be the one which would inform the insurer of the amount and value of the goods destroyed by the fire. In my opinion, the judgment of the circuit court should be reversed for error in instructions to the jury.
R. ROTHSCHILD'S SONS' CO. v. MENTEL et al
(Circuit Court, S. D. Ohio, W. D. July 8, 1895.)
DESIGN PATENT-VALIDITY AND INFRINGEMENT-SALOON-BAR FIXTURES.
The Rothschild patent, No. 22,222, for a design for saloon-bar fixtures, found not anticipated, and held valid and infringed. This was a suit in equity by the R. Rothschild's Sons' Company against Ferdinand Mentel and others for infringement of a design patent.
George J. Murray, for complainant.
SAGE, District Judge. The complainant sues for infringement of patent No. 22,222, issued February 14, 1893, to David Rothschild, for design for saloon-bar fixtures. The only defense relied upon is that the patentee, from whom complainant derives title, did not invent the patented design, but surreptitiously appropriated to himself and patented what was the invention of Victor Vollbracht. Vollbracht testifies positively that he was the originator of the design, and that David Rothschild had nothing to do with its invention; that it was made originally in the city of Detroit, as shown in defendant's exhibit, “Vollbracht's Sketch of Swan Fixture.” This sketch contains two drawings. The first shows only a plan of a counter, square arm rail, cigar case, back bar, wine coolers, cashier's desk, and indicates the bases of columns and the location of mirrors. The second is the sketch of the back of the fixture, including panels, ornamentations, and mirrors. The arched canopy projecting from the wall over the counter is neither shown nor indicated, nor are the columns or their capitals. These drawings are not sufficient to show an anticipation of the complainant's patent.
Vollbracht is contradicted by William Kleeman, of Cincinnati, manufacturer of office, store, and saloon fixtures, who testifies that the drawings of the complainant's patent represent a fixture made by him about March 28, 1892, for the Rothschild's Sons' Company, in accordance with orders and instructions received by him from David Rothschild. His testimony is that the drawings or sketches were made by Vollbracht, but that the instructions for making them were given, and a good many parts of the design were suggested and directed, by David Rothschild, in the presence of the witness.
He also testifies that the ideas and the sketch from which he made the City of Paris saloon fixtures (which is the name given to fixtures made according to the patented design) for the R. Rothschild's Sons' Company he received from David Rothschild, who aft. erwards changed the ends of the mirror frame from oval to straight, and from wood to metal; that David Rothschild called three or four times a week while they were working on the fixture, which it required six weeks to complete; and that Vollbracht called twice, and gave instructions concerning the carving of the heads and shields and the corbel; also, that Vollbracht never gave any instructions in regard to building up the work.
Julius A. Braum testifies that no fixture was ever made by the Rothschild's Sons' Company after the design which Vollbracht claims to have sketched for Swan at Detroit. Vollbracht is also contradicted by Julius F. Beuhler, who testifies that Rothschild originated the patented design; that for some four years before the date of his testimony, which was given March, 1894, Rothschild had stated to witness his intention to get up a design for new fixtures that would, as he expressed it, "stun the country"; and that he spoke on a good many occasions to the witness of the details of the design, such as the marble work, the cove overhead, the lion heads, and the columns resting on the counter, and holding the cove of the mirror frames; also, that several rough sketches were made, to which improvements were added, and they were altered from time to time, all under the instructions of Rothschild. The sketches of these drawings and improvements were made by Vollbracht, then draftsman for the Rothschild's Sons' Company. This was, the witness states, early in 1891, probably in January, but long after David Rothschild had spoken to the witness about the design. The criticism upon the testimony of these witnesses that they speak from hearsay is not well founded. It is true that in some matters, but not those above referred to, they did speak from hearsay, or testified to inferences. Their testimony as detailed above is clear and positive. I am satisfied upon all the testimony that David Rothschild invented the design; that Vollbracht's claim to be the inventor is unfounded in fact; and that the patent is valid. It is not denied that the defendants have copied and used the complainant's design, and that they are infringers if the patent be sustained. The decree will be for an injunction and account against the defendants.
WOODARD et al. v. ELLWOOD GAS STOVE & STAMPING CO.
No. 13. 1. COURTS-COMITY IN PATENT CASES-EFFECT OF VERDICT AND JUDGMENT.
In an action at law for infringement of a patent there was a verdict for plaintiff, and the court entered judgment thereon in his favor. Subsequently, in a suit in equity in another circuit against another infringer, the defendant set up the same defenses which had been made in the previous action at law. Held, that the same weight should be given to the verdict and judgment at law as is ordinarily accorded to a decree in equity at final hearing sustaining a patent, and that upon a motion for a preliminary injunction the presumption in favor of the validity of the patent arising
from the previous adjudication should prevail. % SAME_VAPOR STOVES.
The Klein and Woodard patent, No. 249,842, for a vapor-burning stove attachment, held valid and infringed, on motion for preliminary injunction. This was a bill by William H. Woodard and L. D. Benedict against the Ellwood Gas Stove & Stamping Company, for infringeComplain
ment of a patent for a vapor-burning stove attachment.
George H. Lothrop, for plaintiffs.
ACHESON, Circuit Judge. This is a suit for the infringement of letters patent No. 249,842, issued November 22, 1891, to Charles F. Klein and William H. Woodard, for a vapor-burning stove attachment, and the case is now before the court upon a motion for a preliminary injunction. Clearly the defendant infringes if the patent is valid. This is not denied. To defeat this motion, the defense mainly relied on is that the patentees were not joint inventors, but that Klein was the sole inventor of the device in question. It appears, however, that in an action at law for the infringement of this patent brought September 17, 1887, by these plaintiffs against the Dangler Stove & Manufacturing Company in the United States circuit court for the Northern district of Ohio, Eastern division, this same defense, among others, was set up and vigorously pressed, the action being defended not only by the company there sued, but by a combination of vapor-stove manufacturing companies. In that case, after a protracted trial, there was a verdict sustaining the patent. The defendant moved for a new trial, assigning as one of the principal reasons in support of the motion the finding by the jury of joint inventorship by the patentees. After argument, the court, on November 17, 1888, overruled the motion, and entered judgment for the plaintiffs on the verdict. Subsequently to the rendition of that judgment, there was no infringement of the patent until this defendant began to infringe shortly before the date of this suit. In support of the allegation that the patentees were not joint inventors, but that Klein was the sole inventor, the present defendant has produced a caveat filed by Klein alone, and also an affidavit of Klein. But that caveat was in evidence in the former action, and Klein was there examined as a witness for the defense to show that he was the sole inventor. As to the question of joint inventorship, the proofs now before me are by no means convincing that the verdict of the jury and the judgment of the court thereon were erroneous. In view of the former adjudication, I am of the opinion that the presumption that the patent rightly issued to the patentees as joint inventors must prevail upon this application for a preliminary injunction, and that the consideration of this defense must be postponed until final hearing. This conclusion is in accord with the general rule of practice approved by the circuit court of appeals for this circuit in Philadelphia Trust, Safe-Deposit & Ins. Co. v. Edison Electric Light Co., 13 C. C. A. 40, 65 Fed. 551. The suggestion that less weight should be given to the verdict of the jury and judgment of the court here relied on than is to be accorded to a decree in equity sustaining a patent cannot be accepted. Wells v. Gill, 6 Fish. Pat. Cas. 89, 91, Fed. Cas. No. 17,394. The question of joint or sole inventorship is largely one of fact, and presumably the finding of the jury in this instance was based upon proper instructions given by the court. Then, the finding was sanctioned by the court by the refusal to disturb the verdict and the entry of judgment thereon. The patent in suit has but a few years to run, and the plaintiffs should not be lightly deprived of the benefit of the verdict and judgment they have obtained. Moreover, the defendant is a very deliberate infringer.
The defense of want of patentability was not much pressed here. It failed in the former action. The only prior patent exhibited here is the one to A. J. White. That patent, however, was set up in defense in the former suit. I do not think that it anticipates or affects the patent in suit; and I am entirely satisfied, upon the present proofs, that the plaintiffs' patent is for a new and useful invention. A preliminary injunction will be allowed.
HUDSON y. GRAFFLIN.
(Circuit Court of Appeals, Fourth Circuit. June 11, 1895.)
ADMIRALTY PRACTICE_TAKING EVIDENCE ON APPEAL.
Upon the hearing of a cause in admiralty, the claimant, who did not live in the city where the hearing took place, failed to appear. The libelant's evidence was taken, and the case adjourned to a future day. On such adjourned day claimant again failed to appear, and his proctor was unable to give any reason for his absence, whereupon the case proceeded to judgment for the libelant. It appeared that claimant had been ill, had expected to be present on both days, but had been prevented by his disease from attending or advising with his proctor. Held, that a proper case was made out for permitting claimant to take evidence pending an appeal. This was a libel by George W. Graffin against the barge Glide (George P. Hudson, claimant). Judgment was rendered in the district court for the libelant. The claimant appealed, and now moves for leave to take testimony pending his appeal.
Robert H. Smith, for appellant.
Before GOFF and SIMONTON, Circuit Judges, and HUGHES, District Judge.
SIMONTON, Circuit Judge. This is a petition in behalf of the claimant, praying that he be allowed to examine certain witnesses, pending the appeal in this court. The prayer of the petition is resisted by the appellee.
We have no special rule bearing on this case. It is governed by rule 8,1 conforming our practice to that of the supreme court. The application is not a matter of right. The court in each case
1 (11 C. C. A. ci., 47 Fed. v.)