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Werner v. King

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This was a bill in chancery by George E. King against Robert Werner for the alleged infringement by the latter of two reissued letters-patent, No. 3000 and No. 3001, granted to the complainant June 23, 1868, the first being for an improvement in fluting-machines. The schedule referred to in the letters-patents therefor, and making part of them, is as follows:

'To all whom it may concern:

'Be it known that I, George Edwin King, of the city, county, and State of New York, have invented certain new and useful improvements in fluting-machines; and I do hereby declare that the following is a full, clear, and exact description of the same, reference being had to the accompanying drawings, making a part of this specification, in which—

'Fig. 1 is a front elevation of a fluting-machine constructed according to my invention.

'Fig. 2 is an end elevation of the same.

'Fig. 3 is a detached section representing a portion of the same.

'Fig. 4 is a plan view of a piece of the fluted puffing for the manufacture of which my invention is intended.

'Similar letters of reference indicate corresponding parts in all the figures.

'This invention is designed for making puffing applicable to shirt-bosoms, trimming, or other purposes of dress, in which the article, as it issues from the machine, is (without having recourse to laundering) delivered in a complete form, either singly or in two or more series or rows, composed of flattened borders, with flutes running along their inner edges, and puffed or crinkled surfaces between the flutes.

'The invention consists in a guide constructed with one or more curved or arched portions, in combination with one or more suitable fluting-rollers, whereby the material, in passing through the machine, is fluted and contracted laterally, as it were, or drawn up between the flutes to produce the required crinkled surface or surfaces in the puffing.

'To enable others to understand the construction and operation of my invention, I will proceed to describe it with reference to the drawings.

'A represents the frame which supports the working parts of the apparatus, and situated longitudinally, in the upper part of which are two fluting-rollers, B and C, which are situated one above the other, with their ends projecting through large vertical slots, a, formed in the ends of the frame, A; the roller, B, being supported in semicircular bearings formed in the lower ends of the slots, a, and furnished at one end with a crank, b, and the upper roller, C, working in semicircular bearings, c, formed in sliding-blocks, c, placed upon the ends thereof, and pressed down upon the same by a spring, d, the tension of which may be regulated by means of a vertical screw, e, situated centrally in the top of the frame, A.

'When desired, the upper roller, C, may be held within a given distance of the lower roller by vertical set-screws, f, situated one at each end of the top of the aforesaid frame, A, and acting upon the sliding or adjustable bearings, c.

'The puffing is represented in Fig. 4, and is formed of strips of any suitable fabric, and of a width, when finished, nearly or quite equal to the length of the fluting-rollers, B C, and is formed with longitudinal portions, g, which are fluted transversely to the length of the strip aforesaid; also with portions, h, in which the fabric is pressed flat, and through which longitudinal rows of stitching are formed, to render permanent the conformation of the puffing; and also with portions, l, which are intended to be wider than the parts just described, and which are puffed or crinkled in such manner as to possess an irregular wavy surface.

'In order to form these several portions of the puffing, each of the flutting-rollers, B C, is formed with as many annular or circumferential series, A', of grooves and flutes as there are fluted portions, g, upon the puffing, with as many narrow annular faces, B', as there are flattened portions, h, and with as many comparatively broad portions, C', as there are puffed portions, i, in the finished puffing; each of the said parts of the rollers being of the same width as that portion of the completed puffing which it is designed to shape, and the circumferential faces or portions, C', being of such diameter, that, when the two rollers are in proper position, those upon one roller will be situated at such distance from those upon the other that no considerable pressure will be exerted upon the fabric in passing between them and the several series, A', of grooves and flutes upon one roller gearing into those upon the other roller.

'D indicates pressers, the rearmost end of each one of which is curved downward, and fitted upon the upper rearmost part of each of the faces, B', of the lower roller, B, with its forward end curved upward in contact with the forward sides of the corresponding face, B', upon the other roller, as shown in Figs. 2 and 3, the aforesaid rearmost ends of these pressers, D, being pressed against the roller, B, by set-screws, j, passing through a horizontal bar or brace, k, secured upon the rear of the frame, A.

'Fixed upon the forward side of the frame, A, in front of the roller, B, is a horizontal supporting-brace, m, which has fixed upon it an inclined plate, n, upon which is supported the inclined guide, E, which is composed of two pieces of sheet metal, secured one over the other, at such a distance apart as to permit the passage of the cloth or fabric between them; and those parts of this guide, E, in front of the plain cylindrical portions, C', of the rollers, are curved upward or arched transversely, as shown at a', in such manner that the width of the fabric passed between each pair of the plain portions, C', will be greater, if stretched out to its full extent, than the width of the said portions, so that the said fabric, by means of its increased width, will be crinkled or puffed in passing between the aforesaid portions, C', as will be presently fully set forth.

'The end of the strip of cloth or fabric from which the fluted puffing is to be formed is passed into and through the guide, E, and between the rollers, B C, and a rotary motion in the direction of the arrow, shown in Fig. 2, is communicated to said rollers by turning the crank b, or by other suitable means.

'The fabric is drawn lengthwise between the rollers, those portions thereof which pass between the several opposite series, A', of grooves and flutes of the two rollers being fluted, as shown at g, in Fig. 4, while those portions of the said fabric which pass between the smooth, narrow annular faces, B', of the rollers, being formed into gathers by the fluting of the fabric at the sides or edges thereof, are pressed flat by passing under the pressers, D, as the fabric is drawn along, at the same time that those portions of the fabric drawn through the curved or arched parts, a', of the guide, E, being, if stretched to their full extent, of a width greater than that of the smooth cylindrical portions, C', and being also gathered by the fluting formed at their sides or edges, are caused to assume a crinkled or puffed form, as they are passed between the aforesaid portions, C', the distance between the opposite smooth portions, C', aforesaid being such that no pressure is exerted upon the fabric passing between them beyond that required to simply press the convex surfaces thereof downward to a sufficient degree to insure the shaping thereof into the puffed condition just herein described.

'The extent to which the material will be thus contracted laterally, as it were, or drawn up between the flutes, will be governed by the excess in length of the arched portions, a', of the guide over a straight line or lines connecting such arched portions at their base.

'By these means, the fluted puffing is brought into the form required in the finished article without the necessity of washing the same, in order to bring the puffing into such form.

'To complete the puffing, longitudinal rows of stitching are formed in the flat parts, h, of the puffing, to retain it in shape; and, when desired, the puffing as thus completed may be divided longitudinally in the said parts, h, to separate it into narrow pieces, as required for various trimming purposes.

'What I claim as new, and desire to secure by letters-patent, is—

'The guide, E, constructed with one or more curved or arched portions, a', in combination with suitable fluting-rollers, substantially as herein set forth, for the purpose specified.'

The drawings referred to in the foregoing specification are as follows:--

The reissued letters-patent No. 3001 were for a new article of manufacture therein described, being an improvement in fluted puffing.

Werner, to whom were granted letters-patent No. 134,621, bearing date Jan. 7, 1873, for an improvement in crimping and fluting machines, denied the infringement, and insisted that the letters-patent granted to King were void, for want of novelty. The specification forming part of the letters-patent granted to Werner is as follows:--

'To all whom it may concern:

'Be it known that I, Robert Werner, of Hoboken, in the county of Hudson, State of New Jersey, have invented a new and improved combined crimping and fluting machine, of which the following is a specification:--

'Fig. 1 represents a vertical transverse section of my improved crimping and fluting machine, the line, c c, Fig. 2, indicating the plane of section. Fig. 2 is a plan or top view of the same. Fig. 3 is a perspective view of the device for holding the fluting against the rollers. Fig. 4 is a vertical transverse section of a modification of my invention; Fig. 5, a face-view of the crimping and fluting produced on the machine; Fig. 6, a transverse section; and Fig. 7, a longitudinal section of such fluting and crimping.

'Similar letters of reference indicate corresponding parts.

'This invention relates to a new machine for producing a fluted and crimped fabric, substantially like that for which a design patent was granted to me on the twenty-ninth day of November, 1870, from a smooth and flat woven fabric; and the invention consists principally in the application to fluting-rollers of a detent, or finger, by which a portion of the fabric is held back, and thereby formed into V-shaped, but more of less irregular, lateral waves and crinkles, whereby the stated and desired effect is produced. This finger is made to bear against a platform over which the fabric is passed to the fluting-rollers, or directly against one of the rollers, as may be desired. The invention also consists in a new arrangement and connection, with said fluting-rollers, of a device for holding the fluted fabric in contact with the same while the crinkled portion of the fabric is being elevated and puffed up by a projecting rib or stationary plate, all as hereinafter more fully described.

'In the accompanying drawing the letter A represents the frame of the machine. In the same are the bearings of two fluting-rollers, B B, which are parallel with each other, and, by preference, in a horizontal position, as indicated. The rollers, B, are provided with zones, a a, of fluting or toothed portions, which will cause certain strips of the fabric which pass between the said rollers to be fluted, while the remaining portions of the same fabric will not be fluted. C is a platform secured to the framework, A, in front of and about in line with the space between the two rollers. D is a detent or spring fastened to a bar, b, which rests by posts, d, upon the platform, C. The free end of the spring, D, bears against said platform midway between the two inner zones, or any pair of zones, a a, on said rollers. The fabric is passed over the platform, C, before it enters the rollers, or rather in its passage to the said rollers, and is consequently passed under and subjected to the pressure of the spring, D, being fed or drawn forward by and between the rollers. That portion of the fabric which is subjected to the pressure of the spring, D, will be detained or held back or stretched back to be drawn into the V-shaped crinkles or crimping, which is indicated in Fig. 5, at e. This effect, of course, can only be produced if the detent, D, bears upon the fabric previous to its being acted upon by the rollers, so that the portion affected by said spring can be drawn back by the detent in the manner shown. The same effect can be produced by the modified form of detent shown in Fig. 4, in which case the said detent is made to bear against one of the rollers, B, and fastened to the under side of a plate, C. This modification can only be used when the detent bears against the rollers so far forward of the line that connects the two axes of the two rollers that sufficient material will be at the command of the detent to draw the fabric back into the V-shaped crimping; for, if the detent would apply to the middle of the roller when the fluting has already hold of the fabric, the drawing back could not be produced, inasmuch as the fluting would take up all the surplus fabric, and none would be left for the effect by the detent. E E are metallic plates or bars provided with projecting cheeks, f, which said cheeks bear against the fluted portions of the fabric as it emerges from between the two rollers, and hold said fluted portion in contact with the lower roller, while a projecting rib, g, moves the centre of the crinkled portion from off said roller. This gives the transverse wave of the fabric which is indicated in Fig. 6. The plates or bars, E E, can, by setscrews, h h, be adjusted nearer to or further away from the fluted portions of the rollers for the purpose of holding the fluted portion of the fabric more or less firmly against the rollers, and for flattening portions of the fluting between the zones, a. The rollers may be made to be hollow, to be heated by steam or otherwise, so that the fabric which is passed between them-preferably in a moist state-may retain the form into which it is put by the action of the machine. It will be found convenient to raise the detent, D, off the platform, C (or withdraw it from contact with the roller, B, when placed as in Fig. 4), in order to enter the end of the fabric between the rollers. With this object, the bar, b, is made detachable, and locked by keys, l l (or the plate C made to be drawn back and forward).

'Having thus described my invention, I claim as new, and desire to secure by letters-patent,--

'1. The detent, D, arranged in combination with the fluting-rollers, B B, to produce the crinkles or puffing on the fabric, which is partially fluted, as set forth.

'2. The platform C, or C', arranged in combination with the detent, D, and rollers, B, as specified.

'3. The cheek-pieces, f, in the plates, E, applied, in conjunction with the projecting rib, g, to the fluting-rollers, B B, as specified.'

The court below decreed in favor of King, whereupon Werner appealed here.

Mr. Arthur v. Briesen for the appellant.

Mr. Frederic H. Betts, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Werner v. King


text: Talk:Werner v. King

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Werner v. King


text:
Werner v. King/Opinion of the Court

Letters-patent were issued to George E. King on the 26th February, 1867, for a new and useful improvement in fluting machines. He surrendered them, and on the 23d June, 1868, had two patents granted him as reissues of the original. The first of these, No. 3000, was for the machine by which the article of fluting and puffing described in the patent was made; and the other, No. 3001, was for the article made as described. The record before us is that of a suit in chancery brought by him against Robert Werner for an infringement of both these patents. Werner defended on the ground that the patents were void for want of novelty, and also by denying the infringement. The Circuit Court held that the defence was sustained as to the patent for the article produced, on the ground that it was not new, but rendered a decree in favor of King as to the reissued patent, No. 3000, for the machine. Werner alone appeals, and seeks a reversal of the decree on both the grounds urged below.

We will examine the question of infringement first; for, if the appellant has not infringed the patent of the appellee, he can very well leave to others the task of contesting its validity.

The appellant is also patentee of a machine for crimping and fluting, which produces an article similar to that of the appellee, and parts of the machine by which the purpose is effected are substantially the same as his. If on looking at the machine in detail there is such substantial identity as to all its parts, the appellant must be held to be an infringer, for his patent bears a date more than four years subsequent to that of the appellee.

The appellee's schedule declares that his invention is designed for making puffing applicable to shirt-bosoms, trimming, or other purposes of dress, in which the article, as it issues from the machine, is (without having recourse to laundering) delivered in a complete form, either singly, or in two or more series or rows, composed of flattened borders with flutes running along their inner edges, and puffed or wrinkled surfaces between the flutes.

The fabric to be fluted and puffed is drawn between a pair of rollers moved by a crank, the rollers, where they approach each other, having flutes or grooves so arranged as by their pressure on the fabric as it passes between them to make the fluting and to flatten it. These grooves on the rollers, while they are continuous in the annular or circumferential direction of the rollers, are interrupted in their longitudinal direction by smooth spaces, so that the material passing between the rollers is fluted or crimped in parts of its width and left plain in other parts which do not pass over the grooves. It is obvious, if this plain portion of the fabric, as it passes over the plain surface of the roller, can be so presented as to be compressed laterally, or in any other manner to have more of the material thus forced into the machine than is necessary to cover this plain surface, that when it comes out of the machine, while the fluted parts are fixed and flattened, the intermediate portion must present a puffed and irregular surface. It is this effect which is desired, and which King, by an additional contrivance, produces; and it is this contrivance which, in combination with the fluting-rollers already described, but which are not new, he claims as his invention.

This part of the machine consists of a double-plated segment of a hollow cylinder, the arch of which is upwards, so arranged with regard to the fluting-rollers that the part of the material which is intended to be puffed and not fluted, passing first between the plates of this arched guide, is presented to the plain surface of the roller, with the width of the strip increased by the difference between the lines of the curved or arched surface of the cylinder and the plain or horizontal surface of the roller which receives it. The result is, that when the material comes out of the machine this redundancy of the plain part of it assumes the form of irregular puffs, which is the end to be attained. All this is very well described, and specific references illustrated by drawings are given to the various parts of the machine.

'What I claim as new,' he says, in conclusion, 'and desire to secure by letters-patent, is: the guide, E, constructed with one or more curved or arched portions, a, in combination with suitable fluting-rollers, substantially as herein set forth for the purpose specified.'

The schedule of Werner's patent, which is numbered 134,621, describes the same kind of fluting-rollers, and is designed to produce, while passing through them, what he calls a crinkled surface in that part of the fabric not fluted. But in his machine the redundancy of material is produced by passing it over a smooth, flat surface, from which it is presented to the fluting-rollers; and while so passing over this flat surface a detent, or finger, is applied to that part of it not to be fluted, which, by reason of the pressure of a spring, holds back this part of the material. It is thus formed into V-shaped waves or crinkles, more or less irregular, whereby the desired effect is produced.

It will be observed that the main features of both machines are the same, and that whatever is new in either is ingrafted upon a fluting-machine, many of which were patented long prior to both of them.

The question we are now to consider is, whether the flat surface and finger, or detent, of Werner are the mechanical equivalents of the double-plated segment of a cylinder used by King, within the principles of the patent law on that subject.

It is said that they are equivalents, because they produce the same result. The fact stated may be doubted; for an examination of numerous pieces of textile fabrics passed through both machines show in those crimped by Werner's the regular V-shaped crinkle, with the acute angle pointing in the same direction with great uniformity; while in those passed through King's the puffs are elevated, wavy, and irregular. But since the patent for the article is not contested here, this difference is of no other importance than as it illustrates the difference in the mode of operation of the two machines.

It is further said, that the difference is merely one of form; and cases are cited in which this court has held that a mere variation in the form or shape of the instrument cannot be successfully used to evade the monopoly. But where form is of the essence of the invention, it is necessarily material; and, if the same object can be attained by a machine different in form where that form is inseparable from the successful operation of the instrument, there is no infringement. Winans v. Denmead, 15 How. 330. In King's patent, the result sought is wholly due to the guiding arch, through which the fabric is carried. It is this semicircular form which gives the redundancy of material necessary to the puff; and no guide which did not in some manner give the material an arched or curved shape as it passed into the fluting-rollers can be considered as a part of King's patent. It is not only necessary to an infringement that the arrangement which infringes should perform the same service, or produce the same effect, but, as Mr. Justice Nelson said in Sickles v. Borden (3 Blatchf. 535), it must be done in substantially the same way. Burr v. Duryee, 1 Wall. 531.

The difference in the shape or form of the guide in these machines is not the only one. They operate on entirely different principles. King's instrument is, to some extent, automatic.

The strip of the fabric to be used, being once between the upper and under plates of his arched guide, cannot escape, and it must, in passing into the fluting-rollers, present the same amount of redundant material, whatever may be the elasticity or rigidity of the fabric. A piece of leather would, if it passed through, present precisely the same elevation of the arch, and length of line of the semicircles, as a piece of gauze. Whereas, under the operation of the detent of Werner, the length of the lines and the acuteness of the angle of the V would vary with the resisting strength of the fabric and the power of the spring which pressed the detaining finger.

Another marked difference is, that in King's machine the redundant fulness which makes the puff is produced by a pressure which is uniform over the surface of the fabric, the two plates giving it the exact form required, and no other; while Werner's finger seizes the fabric in the centre of the part to be crinkled, and by pulling on it at this central point, as it is dragged in between the rollers, enough of the material is drawn in from the edges towards the centre to create the redundancy necessary to the puff or crinkle. This is done by the material passing over a flat, smooth surface; and while on this flat plate the finger is applied to it, and detains or draws to this central point a portion of the fabric. There exists no such plate or flat surface or finger in King's machine. It seems impossible to hold that this flat surface, this pointed finger whose force is dependent on a spring, are the mechanical equivalents of the double-plated semi-cylinder of King's guide. If this be so, it is because King's patent covers every method which can be invented for presenting the material to the flutingrollers in such a manner as to create a redundancy to be made into puffs. This is not claimed; and, if claimed, the claim would be fatal to the patent.

We are of opinion that the machine of Werner, and its use by him, is no infringement of King's, and the decision of the Circuit Court will, therefore, be reversed, and the case remanded with directions to dismiss the bill; and it is

So ordered.

title: Werner v. King/Opinion of the Court


text: Talk:Werner v. King/Opinion of the Court


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United States v. Morrison (96 U.S. 232)

APPEAL from the Court of Claims.

Morrison, the appellee, a lieutenant in the tenth regiment of cavalry, was appointed regimental quartermaster, and his appointment approved June 30, 1875. On the same day, Hunt, a second lieutenant in the regiment, was promoted to be first lieutenant in the place of Morrison, 'appointed regimental quartermaster.' On the 22d October, 1875, Morrison, 'in addition to his other duties,' was 'assigned to duty as assistant-commissary of post;' and, by virtue of that appointment, served as acting assistant-commissary from Nov. 1, 1875, to and including, Feb. 28, 1877. He has been paid in full as quartermaster, but nothing in addition as acting assistant-commissary. This action is brought to recover at the rate of $100 a year for the extra service. The court below gave judgment in his favor for $133.33, whereupon the United States appealed here.

Mr. Assistant-Attorney-General Smith for the appellant.

Mr. Halbert E. Paine and Mr. Benjamin F. Grafton, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: United States v. Morrison (96 U.S. 232)


text: Talk:United States v. Morrison (96 U.S. 232)


text:
United States v. Morrison (96 U.S. 232)/Opinion of the Court

The single question presented in this case is, whether, since the Revised Statutes, a regimental quartermaster, serving also as acting assistant-commissary, is entitled to additional pay on that account.

By sect. 1102, Rev. Stat., each regiment of cavalry is to have among its officers one quartermaster, who is to be an 'extra lieutenant, selected from the first and second lieutenants of the regiment.' Such has been the law since 1866. 12 Stat. 599, sect. 11; 14 id. 332, sect. 3. The selection is made by the colonel or permanent commanding officer of the regiment, subject to the approval of the Secretary of War.

Until 1870, the pay of regimental quartermasters was 'ten dollars per month in addition to their pay in the line,' and forage (2 Stat. 482, sect. 24); but the act of July 15, 1870 (16 id. 320, sect. 24), provided that the 'pay of regimental quartermaster shall be $1,800 [a year]; the pay of first lieutenant, mounted, shall be $1,600; the pay of first lieutenant, not mounted, shall be $1,500; the pay of second lieutenant, mounted, shall be $1,500; the pay of second lieutenant, not mounted, shall be $1,400;. . . the pay of acting assistant-commissary shall be $100 in addition to pay of his rank.' This provision has been reproduced in the Revised Statutes, sect. 1261.

A regimental quartermaster is, therefore, either a first or second lieutenant in rank, and his pay $1,800. There is no provision for the pay of the rank of lieutenant disconnected from the service to be performed, but the pay of the rank is graduated by the service. The compensation is not for rank and service, but for rank according to service. Thus, a lieutenant in cavalry service is paid more than in infantry, and in regimental service more than in cavalry. Whether in one service or another, his rank is that of lieutenant, and consequently his pay is that of his rank. Under the law as it was before 1870, he was paid for his service upon the staff in addition to that for his rank, but now the pay of his rank includes all. Being an extra lieutenant in the regiment assigned to duty as quartermaster, and consequently performing regimental service, his pay as lieutenant is $1,800. When, therefore, the additional duty of acting assistant-commissary is put upon him, it would seem to be clear that, looking at the statute alone, he is entitled to the additional pay allowed for that service.

It is contended, however, that he is not, because, by the army regulations, 'no officer shall receive pay for two staff appointments at the same time.' Army Reg. 1863, par. 1345. If it be conceded that both the quartermaster and acting assistant-commissary are now staff appointments, the result claimed does not necessarily follow. When these regulations were adopted, the compensation of a quartermaster for his staff service was by a specific addition to his pay in the line. At that time, therefore, it might well be said that the addition was pay for the staff appointment. But now there is no compensation for staff service separate from that of rank; and, in our opinion, it cannot be said that, within the meaning of the regulation, a quartermaster receives pay for his staff appointment. He gets more pay as lieutenant by reason of his transfer to a new service, but nothing separate for his appointment. This being the case, the additional compensation which the law gives an acting assistant-commissary is not, in the case of a quartermaster performing that service, pay for a second staff appointment.

Judgment affirmed.


text: Talk:United States v. Morrison (96 U.S. 232)/Opinion of the Court


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Insurance Company v. Norton

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This action was brought by Phoebe A. Norton on a policy of insurance, issued by the Knickerbocker Life Insurance Company of New York, on the life of Jesse O. Norton, for the benefit of his wife and children. The original policy was dated April 20, 1867; and, being partly destroyed by fire, was reissued in April, 1874. The premium was $385, payable annually on the twentieth day of April in each year; and the policy, amongst other things, contained the following condition:--

'Second, If the said premium shall not be paid on or before twelve o'clock, noon, on the day or days above mentioned for the payment thereof, at the office of the company in the city of New York (unless otherwise expressly agreed in writing), or to agents when they produce receipts signed by the president or secretary, or if the principal of or interest upon any note or other obligation given for the premium upon said policy shall not be paid at the time the same shall become due and payable, then, and in every such case, the company shall not be liable to pay the sum assured, or any part thereof; and said policy shall cease and be null and void, without notice to any party or parties interested herein, except that the stipulation for a new policy, as hereinbefore provided, shall remain in force.

'Third, In case a loan of or credit for a portion of said premium shall be made on this policy, said policy shall be subject to all of the terms and conditions expressed in the acknowledgment or obligation given for such loan or credit, and to the payment of interest thereon in advance; and said loan or credit shall be a just counter-claim against any amount which shall become due and payable on the policy, and shall be deducted therefrom.'

By an indorsement on the policy, it was declared that 'agents of the company are not authorized to make, alter, or abrogate contracts, or waive forfeitures.'

The insured died on the 3d of August, 1875; and the company refused to pay the insurance, on the ground that the policy was forfeited by reason of the non-payment of certain notes given for the last premium, which was due April 20, 1875. It was conceded that all the other premiums had been paid.

The declaration, besides a special count on the policy, contained the ordinary money counts. The defendant pleaded the general issue, and, specially, that the premium notes were not paid at maturity, and that the policy thereby became forfeited. The plaintiff replied, first, that the agent of the defendant at Chicago, regularly authorized by the defendant so to do, extended the time of payment of the first note, which became due on the 20th of June, to the 20th of July, when she tendered the amount thereof to the agent, who refused to receive the same; and that she also tendered the amount of the second note at its maturity, which was likewise refused: secondly, that, after the maturity of the first note, the agent of the defendant, regularly authorized so to do, waived all advantages the company might have claimed because of its non-payment at maturity, and extended the time of payment, as before stated, with an averment of tender and refusal. The defendant, by way of rejoinder, denied that it had extended the time of payment, or that it had waived any advantages, as alleged. This was the issue at the trial.

It appeared on the trial that the premium in question was settled by the payment of $50 in cash, and the balance in two promissory notes given by Jesse O. Norton to the insurance company, payable respectively in two and three months, and maturing, one on the 20th of June, the other on the 20th of July, 1875. Each note contained a clause, declaring that if it were not paid at maturity the policy would be void,-this being the usual form of premium notes.

On the issue as to extension of time on the notes, and the authority of the agent to grant it, the plaintiff produced three witnesses: Randall, agent of the company down to March, 1874; Frary, his successor, who was agent at the time in question; and Martin Norton, son of the insured, who acted in behalf of his father in reference to the alleged extension, and to the tender of payment.

The testimony of these witnesses tended to show that formerly the company had allowed their agent to extend time on premium notes for a period of ninety days; that this indulgence was afterwards reduced to sixty days, and then to thirty; and that, at the period in question, the agent was required, as a general thing, to return the notes in his hands if not paid by the 15th of the month following that in which they became due.

As to what took place with reference to the notes in question, there is some conflict in testimony between Martin Norton and the agent, Frary. The former testified, in substance, that he called on the agent, in behalf of his father, in June, 1875, a few days after the first note became due, and told him that his father wished it extended for thirty days; to which the agent agreed,-his answer being, 'All right.' That he called again on or about the 8th of July, to request an extension of the other note, which would become due on the 20th of that month, and a further extension of the first note to the 10th of August. That the agent said he would have to write to the company about this. That, on the 13th, he called again, and told the agent that his father had concluded to pay both notes; and the agent gave him the figures, showing what was due on them. That he called again on the 15th, prepared to pay the notes, when he was informed by the agent that he could not receive the money, having received orders from the company to return all the papers to New York, and he had done so. That he then made a legal tender of the amount due on the first note, which was refused. Frary testified that he had no recollection of the first interview, or of agreeing to extend the first note. As to the rest, they did not materially differ.

In addition to the testimony relating to the general practice of the agents in granting extensions of time for the payment of premium notes, evidence was given tending to show that Norton, the insured, had usually received more or less indulgence of that kind.

The counsel for the defendant moved to strike out the testimony touching the usages of the company as to non-payment of prior premium notes by Norton, and prior indulgence thereon to him, as incompetent, and in conflict with the terms of the policy, and as showing no authority in Frary to give the alleged extension; which was without consideration, if made, and after the forfeiture had occurred.

The counsel for the defendant also moved to strike out that portion of Martin Norton's testimony relative to an agreement for an extension of the premium notes, such agreement being without authority on the part of the agent, &c. The court overruled the latter motion; and, as to the first, directed the jury to disregard so much of Randall's testimony as tended to show the conduct of the defendant and plaintiff in regard to former payments; but allowed to stand so much of Randall's and Frary's testimony as tended to show the powers of the agents in reference to giving extensions on premiums or premium notes. This ruling was excepted to.

In charging the jury, the court left it to them to say, from the evidence, whether the agent of the defendant had power to waive a strict compliance with the terms of the agreement as to the time of paying the notes given for the premium; and, if he had such power, whether such a waiver was in fact made: if it was, and if the insured offered to pay the notes within the time to which they were extended, and the company refused to receive payment, that then the plaintiff was entitled to recover. The jury were further instructed that the power vested in Randall, the previous agent, was only pertinent as it tended to throw light on the powers vested in his successor, Frary. The defendant's counsel excepted to the charge, and submitted several instructions, the purport of them being, in substance, that, in view of the express provisions of the policy, the evidence was utterly irrelevant and incompetent to show any authority in the agent to grant any indulgence as to the time of paying the notes, and to waive the forfeiture incurred by their non-payment at maturity; or to show that any valid and legal extension was, in fact, granted, or that the forfeiture of the policy was waived.

These instructions were refused. There was a judgment for the plaintiff, whereupon the company sued out this writ of error.

Mr. H. G. Miller and Mr. Thomas G. Frost for the plaintiff in error.

The parties are bound by the policy, and the court must enforce it according to its tenor. Pitt v. Berkshire Life Insurance Co., 100 Mass. 500; Roehner v. Knickerbocker Life Insurance Co., 4 Daly (N. Y.), 412; Robert v. New England Life Insurance Co., 1 Disney (Ohio), 355; Fifty Associates v. Howland, 5 Cush. (Mass.) 214; Baker v. Union Mutual Life Insurance Co., 43 N. Y. 283; Howell v. Knickerbocker Life Insurance Co., 3 Robt. (N. Y.) 232; Catoir v. American Life Insurance and Trust Co., 33 N. J. L. 487; Wall v. Home Insurance Co., 36 N. Y. 157; New York Life Insurance Co. v. Statham et al., 93 U.S. 24; Beadle v. Chenango County Mutual Insurance Co., 3 Hill (N. Y.), 161; Shaw v. Berkshire Life Insurance Co., 103 Mass. 254; Bradley v. Potomac Fire Insurance Co., 32 Md. 108; Union Mutual Life Insurance Co. v. McMillen, 24 Ohio St. 67; Mutual Benefit Life Insurance Co. v. Ruse, 8 Ga. 534; Sullivan v. Cotton States Life Insurance Co., 43 id. 423.

The time of payment in such an instrument is material, and of the essence of the contract, and a failure to pay involves an absolute forfeiture, which the agent had no authority to waive, nor could he grant an extension of time for the payment of the premium note. Security Insurance Co. v. Fay, 22 Mich. 467.

When such extension was applied for, the forfeiture of the policy had been already incurred, and the pretended agreement for an extension was void, for want of consideration.

Mr. S. P. McConnell for the defendant in error.

Although a policy declares that agents have no power to waive a forfeiture or modify the contract of insurance, the company issuing it may nevertheless, by grant, authorize them to do either, or, by its conduct, estop itself from denying that such grant has been made. AEtna Insurance Co. v. Maguire et al., 51 Ill. 342; Perkins v. Washington Insurance Co., 4 Cow. (N. Y.) 645; Lightbody v. American Life Insurance Co., 23 Wend. (N. Y.) 18; McEwen v. Montgomery County Insurance Co., 5 Hill (N. Y.), 101; Eclectic Life Insurance Co. v. Fahrenkrug, 68 Ill. 463; Keenan v. Missouri State Mutual Insurance Co., 12 Iowa, 126.

The extent of the agent's authority is a question for the jury. Sheldon v. Connecticut Mutual Life Insurance Co., 25 Conn. 207; Hough v. City Fire Insurance Co., 29 id. 10; Farmers' Mutual Insurance Co. v. Taylor, 73 Pa. St. 342.

A new consideration is not necessary to validate either the waiver of a forfeiture or an extension of time for the payment of the premium, or of the notes given therefor. Leslie v. Knickerbocker Life Insurance Co., 2 Hun (N. Y.), 616; Viele v. Germania Insurance Co., 26 Iowa, 9.

A party cannot insist upon a condition precedent, the breach of which he caused. Young v. Hunter, 6 N. Y. 203.

MR. JUSTICE BRADLEY, after stating the case, delivered the opinion of the court.

title: Insurance Company v. Norton


text: Talk:Insurance Company v. Norton

title: Talk:Insurance Company v. Norton


text:
Insurance Company v. Norton/Opinion of the Court

The material question in this case is, whether, in view of the express provisions of the policy, the evidence introduced by the assured was relevant and competent to show that the company had authorized its agent to grant indulgence as to the time of paying the premium notes, and waive the forfeiture incurred by their non-payment at maturity; or to show that any valid extension had, in fact, been granted, or the forfeiture of the policy waived.

The written agreement of the parties, as embodied in the policy and the indorsement thereon, as well as in the notes and the receipt given therefor, was undoubtedly to the express purport that a failure to pay the notes at maturity would incur a forfeiture of the policy. It also contained an express declaration that the agents of the company were not authorized to make, alter, or abrogate contracts or waive forfeitures. And these terms, had the company so chosen, it could have insisted on. But a party always has the option to waive a condition or stipulation made in his own favor. The company was not bound to insist upon a forfeiture, though incurred, but might waive it. It was not bound to act upon the declaration that its agents had no power to make agreements or waive forfeitures; but might, at any time, at its option, give them such power. The declaration was only tantamount to a notice to the assured, which the company could waive and disregard at pleasure. In either case, both with regard to the forfeiture and to the powers of its agent, a waiver of the stipulation or notice would not be repugnant to the written agreement, because it would only be the exercise of an option which the agreement left in it. And whether it did exercise such option or not was a fact provable by parol evidence, as well as by writing, for the obvious reason that it could be done without writing.

That it did authorize its agents to take notes, instead of money, for premiums, is perfectly evident, from its constant practice of receiving such notes when taken by them. That it authorized them to grant indulgence on these notes, if the evidence is to be believed, is also apparent from like practice. It acquiesced in and ratified their acts in this behalf. For a long period, it allowed them to give an indulgence of ninety days; after that, of sixty; then of thirty days. It is in vain to contend that it gave them no authority to do this, when it constantly allowed them to exercise such authority, and always ratified their acts, notwithstanding the language of the written instruments.

We think, therefore, that there was no error committed by the court below in admitting evidence as to the practice of the company in allowing its agents to extend the time for payment of premiums and of notes given for premiums, as indicative of the power given to those agents; nor any error in submitting it to the jury, upon such evidence, to find whether the defendant had or had not authorized its agent to make such extensions; nor in submitting it to them to say whether, if such authority had been given, an extension was made in this case.

Much stress, however, is laid on the fact that the extension claimed to have been given in this case was not given, or applied for, until after the first note became due and the forfeiture had been actually incurred. But we do not deem this to be material. The evidence does not show that any distinction was made in granting extensions before or after the maturity of the notes. The material question is, whether the forfeiture was waived; and we see no reason why this may not be done as well by an agreement made for extending the note after its maturity, as by one made before. In either case, the legal effect of the indulgence is this: the company say to the insured, Pay your note by such a time, and your policy shall not be forfeited. If the insured agrees to do this, and does it, or tenders himself ready to do it, the forfeiture ought not to be exacted. In both cases, the parties mutually act upon the hypothesis of the continued existence of the policy. It is true, if the agreement be made before the note matures and before the forfeiture is incurred, it would be a fraud upon the assured to attempt to enforce the forfeiture, when, relying on the agreement, he permits the original day of payment to pass. On the other hand, if the agreement be made after the note matures, such agreement is itself a recognition, on the company's part, of the continued existence of the policy, and, consequently, of its election to waive the forfeiture. It is conceded that the acceptance of payment has this effect; and we do not see why an agreement to accept, and a tender of payment according to the agreement, should not have the same effect. Both are acts equally demonstrative of the election of the company to waive the forfeiture of the policy. Grant that the promise to extend the note is without consideration, and not binding on the company,-which is perhaps true as well when the promise is made before maturity as when it is made afterwards,-still it does not take from the company's act the legitimate effects of such act upon the forfeiture of the policy. Perhaps the note might be sued on in disregard of the extension; but if it could be, that would not annihilate the fact that the company elected to waive the forfeiture by entering into the transaction. If it should repudiate its agreement, it could not repudiate the waiver of the forfeiture, without at least giving to the assured reasonable notice to pay the money.

Forfeitures are not favored in the law. They are often the means of great oppression and injustice. And, where adequate compensation can be made, the law in many cases, and equity in all cases, discharges the forfeiture, upon such compensation being made. It is true, we held in Statham's Case (93 U.S. 24), that, in life insurance, time of payment is material, and cannot be extended by the courts against the assent of the company. But where such assent is given, the courts should be liberal in construing the transaction in favor of avoiding a forfeiture.

The case of leases is not without analogy to the present. It is familiar law, that, when a lease has become forfeited, any act of the landlord indicating a recognition of its continuance, such as distraining for rent, or accepting rent which accrued after the forfeiture, is deemed a waiver of the condition.

In Doe v. Meux (4 Barn. & Cress. 606) there was a general covenant to repair, and a special covenant to make specific repairs after three months' notice; and a condition of forfeiture for non-performance of covenants. The landlord gave notice to the tenant to make certain specific repairs within three months. This was held a waiver of the forfeiture already incurred under the general covenant. Justice Bailey said: 'The landlord, in this case, had an option to proceed on either covenant; and, after giving notice to repair within three months, he might have brought an action against the defendant upon the former covenant, for not keeping the premises in repair. But that is very different from insisting upon the forfeiture. . . . I think that the notice amounted to a declaration that he would be satisfied if the premises were repaired within three months, and that he thereby precluded himself from bringing an ejectment before the expiration of that period.'

In Doe v. Birch (1 Mee. & W. 402), there was a covenant on the part of the tenant to make certain improvements on the premises within three months, or that the lease should be void. He failed to make the improvements in the manner stipulated; and, after the expiration of the three months, the landlord's son, on his father's behalf, made a demand of a quarter's rent. But, it not appearing that the landlord knew of the tenant's failure with regard to the improvements, it was held that the son had not sufficient authority to waive the forfeiture. Otherwise, it seems, that the demand of the rent would have amounted to a waiver. Baron Parke referred to Green's Case (1 Croke, 3), where calling the party a tenant, in a receipt for bygone rent, was held to be sufficient evidence of a waiver, though the acceptance of that rent was not such. And he adds: 'If it had been proved that the father had notice of the alterations, and he had still allowed the son to receive the rent, the forfeiture might have been waived. But that was not proved; and the question of waiver does not, therefore, distinctly arise in the case. If it had, the authorities cited show that this was a lease voidable at the election of the landlord. Then, I think that an absolute, unqualified demand of rent, by a person having sufficient authority, would have amounted to a waiver of the forfeiture, and it would have been like the case I cited from Croke's Reports.'

In Ward v. Day (4 Best & Smith, 335), after a forfeiture of a license to gather minerals off of a manor had been incurred, the landlord entered into negotiations with the licensee and his son, to grant to the latter a renewal of the license when it should expire; and terms were agreed on, which the landlord afterwards refused to carry out. It was held, that, by entering into these negotiations, he waived the forfeiture of the original license. The negotiations assumed that the original license was to continue to its termination. The exaction of the forfeiture was in the landlord's election; and he evinced his election not to enforce it by entering into the negotiations. Justice Blackburn says: 'Most of the cases in which the doctrine of election has been discussed have been cases of landlord and tenant under a regular lease, in which has been reserved a right of re-entry for a forfeiture; that is, an option to determine the lease for a forfeiture: but this doctrine is not, as Mr. Russell seems to think, confined to such cases. So far from that being so, the doctrine is but a branch of the general law, that, where a man has an election or option to enter into an estate vested in another, or to deprive another of some existing right, before he acts he must elect, once for all, whether he will do the act or not. He is allowed time to make up his mind; but when once he has determined that he will not consider the estate or lease, whichever it may be, void, he has not any further option to change his mind.' And then the learned judge cites authorities, going back to the Year Books, to show that a determination of a man's election in such cases may be made by express words, or by act; and that if, by word or by act, he determines that the lease shall continue in existence, and communicates that determination to the other party, he has elected that the other shall go on as tenant.

These cases show the readiness with which courts seize hold of any circumstances that indicate an election or intent to waive a forfeiture. We think that the present case is within the reason of these authorities; and that the objection, that the note was already past due when the agreement to extend it was made, is not sufficient to prevent said agreement from operating as a waiver of the forfeiture.

Several minor points were raised by the defendant; but they are all either substantially embraced in the main points already considered, or are not of sufficient force to require special discussion.

We find no error in the record, and the judgment of the Circuit Court is

Affirmed.


text: Talk:Insurance Company v. Norton/Opinion of the Court


text:
McLean v. Fleming

APPEAL from the Circuit Court of the United States for the Eastern District of Missouri.

The bill in this case was filed June 1, 1872, by Cochrane Fleming, to restrain the alleged infringement of his trade-mark for liver pills, by James H. McLean.

As early as 1834, Dr. Charles McLane, of Morgantown, Va., made and sold liver pills, putting them up in wooden boxes, labelled 'Dr. McLane's Liver Pills.' In June, 1844, Jonathan Kidd, having purchased the exclusive right from him, began, at Pittsburg, Penn., to make and sell them. In 1845, Kidd formed a partnership with John Fleming, under the name of Jonathan Kidd & Co. Kidd died in 1853, and Fleming, the surviving partner, and one Cochrane Fleming, having purchased from Kidd's executors all his interest in the business, entered into partnership, under the name of Fleming Brothers. That firm continued until 1865, when Cochrane retired. John carried on the business in the firm name until his death, in November, 1870, whereupon Cochrane succeeded under his will to all his rights in the business.

Up to August, 1847, the pills in question were wrapped in an ordinary printed label. In that year, Kidd & Co. commenced putting them up in wooden boxes, on the cover of each of which were stamped in red wax the words 'McLane's Liver Pill,' and on the wrapper, in a narrow border of scalloped pattern surrounding a panel, with a background of wave-line engraving, was printed in red ink a label bearing the words 'Dr. C. McLane's Celebrated Liver Pills.' In 1855, Fleming Bros. changed the color of the label to black, and made certain other changes, as follows: the groundwork of the engraved wrapper on the top of the box being composed of fine lines, crossing the box diagonally, and at right angles with each other, and bearing the words, in white, 'Dr. C. McLane's Celebrated Liver Pills,' 'Celebrated Liver Pills' being upon a scroll similar to a double ogee in form with a black background. On the wrapper were also in white letters the words, 'Prepared only by Fleming Bros., successors to Jon. Kidd & Co.,' and a fac-simile of their signature and that of C. McLane, in black. This label, which is referred to in the opinion of the court as 'Exhibit F,' was used until October 1871, when another change was made, and the label mentioned in the decree below, and in the opinion of the court as 'Exhibit H,' was adopted. In it the groundwork has shaded curved lines cutting and crossing each other in such a way as to produce the effect of alternate light and shade, crossing the top of the box diagonally in place of the straight lines in 'Exhibit F.' In this label, the words 'successors to Jon. Kidd & Co.' are omitted.

In 1849, James H. McLean commenced, at St. Louis, Mo., to manufacture his proprietary medicines, and, in 1851, to manufacture and sell liver pills, under the name of 'Dr. McLean's Universal Pills;' using first a type-printed label in red letters, which he, in 1852, changed to a lithographed red label, called in the decree 'Exhibit L.'

This label is printed in ink of a light red color, with the words, 'Dr. McLean's Universal Pills,' in white letters shaded by red lines running parallel with the length of the label. He used this label until 1866, having in 1863 inserted therein the initials (J. H.) of his name. In 1866, he changed his label to that referred to in the decree as 'Exhibit K.' In this label, the lines of the background, which is black, cross the top of the box diagonally and at right angles to each other, with the words 'Dr. J. H. McLean's Universal Pills or Vegetable Liver Pills' thereon, in white letters. The use of this label he continued until May, 1872, when he adopted a new one, in the use of which no infringement of the complainant's label was found. He also used a stamp in red wax on his goods.

The court below decreed that the respondent, his agents, employees, and servants, be perpetually enjoined and restrained from using, or causing to be used, the words, 'D'r J. H. McLean's Universal Pills or Vegetable Liver Pills,' or 'D'r McLean's Universal Pills,' or 'D'r J. H. McLean's Universal Pills,' upon any label or wrapper for boxes or other packages of pills, resembling or in imitation of the labels or wrappers or trade-mark of the complainant, described as Exhibit H, whether in style of engraving, printing, or lettering; and from vending or exposing for sale, or causing to be vended or exposed for sale, any article of pills having upon the boxes or other packages thereof any such labels or wrappers so made in imitation of or resemblance to the said labels or wrappers of the complainant; but did not enjoin or restrain him from using them on any other labels or wrappers for pills than those described. It also referred the cause to a master, to take and state an account of the damages resulting to the complainant since Nov. 9, 1870, from the violation of his rights.

The master reported the complainant's damages at $7,399.35. The respondent excepted. His exception having been overruled, the report confirmed, and a final decree entered, he appealed to this court.

Mr. Samuel S. Boyd for the appellant.

Mr. M. L. Gray, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: McLean v. Fleming


text: Talk:McLean v. Fleming

title: Talk:McLean v. Fleming


text:
McLean v. Fleming/Opinion of the Court

Protection for lawful trade-marks may be obtained by individuals, firms, or corporations entitled to the same, if they comply with the requirements prescribed by the act of Congress; and the provision is, that a trade-mark, duly registered as required, shall remain in force thirty years from the date of such registration, subject to an exception not necessary to be noticed. 16 Stat. 210; Rev. Stat., sects. 4937, 4941.

Exclusive ownership of a certain medicinal manufacture, known as 'Dr. C. McLane's Liver-Pills,' and of the trade-mark used in advertising and vending the same, is claimed by the complainant; and the record shows that he, on the first day of June, 1872, filed in the Circuit Court a bill of complaint against the respondent, charging that the respondent had unlawfully infringed the said trade-mark; and he prayed for a decree that the respondent shall render an account of the gains and profits made by the infringement, and for an injunction.

Service was made, and the respondent appeared and filed an answer. Proofs were taken; and, the parties having been heard, the court entered a decretal order in favor of the complainant, and sent the cause to a master, to compute the amount of the gains and profits. Due report was made by the master, to which the respondent excepted; and the court overruled the exception, confirmed the report of the master, and entered a final decree for the complainant, in the sum of $7,399.35.

All matters in that court having been finally determined, the respondent appealed to this court, and assigns errors as follows: 1. That the court erred in finding that the labels L and K, or either of them, infringed Exhibit F, as set forth in the decretal order. 2. That the court erred in finding that the complainant was entitled to any damages, and in ordering the assessment thereof, and in allowing him costs. 3. That the court erred in ordering an account of the sales of Exhibits L and K, prior to the 16th of October, 1871, the date of the first use of Exhibit H by the complainant. 4. That the court erred in overruling the respondent's exception to the master's report.

Medicines of the kind described were first prepared and sold by the physician whose name the pills bear, by putting the same in wooden boxes, labelled with the name of the inventor. For ten years, or more, he used the pills in his practice; but the evidence shows that, on the 19th of June, 1844, he sold the right to use the same to Jonathan Kidd, who, for a year or more, prepared and sold the pills under that agreement, when he formed a partnership with John Fleming, under the style of 'Jonathan Kidd & Co.;' which firm continued to prepare and sell the pills until March 29, 1853, when the senior partner died.

They (the firm) dealt largely in the business; and, as early as 1847, in order to designate the medicine as an article of their own manufacture, and to prevent imposition and fraud, they commenced putting the pills in wooden boxes, of uniform size, shape, and appearance, each box containing twenty-two pills, with the name of the original inventor stamped in red wax upon the cover of each box, around which they placed the red label or wrapper described in the bill of complaint. Beyond doubt, that label, with its devices, and the red seal on the box, constituted the trade-mark by which the firm made known to their customers and the public the genuine pills which they prepared and sold; the firm being at the time the owners of the original recipe, and having the exclusive right to make and vend the pills.

Within a month subsequent to the death of the senior partner of the firm, his executors sold and conveyed all the interest of the decedent in the business to the surviving partner and the complainant, whereby they, under the firm name of 'Fleming Brothers,' acquired not only the title to the recipe and the right to make and vend the pills, but also the right to use the labels and trade-marks used by the former owners. Possessed of the whole interest, they (the firm, Fleming Brothers) prosecuted the business, with some changes in the individual partners, until July 1, 1865, when the present complainant sold out his whole interest to his brother, John Fleming, who, as sole proprietor of what the firm owned, continued the business until the 2d of November, 1870, when he died, leaving a last will and testament.

When that firm acquired the entire interest, they immediately enlarged the business, and in the year 1855 they adopted the dark label, Exhibit F, which is fully and minutely described in the bill of complaint; and the complainant avers that it has since been used in the business, with no other substantial alterations than what are shown in Exhibit H, mentioned in the decretal order.

Both parties agree that the complainant, by the will of his deceased brother, acquired all the rights which the deceased had in the business; and the record shows that he has, since the probate of the will on the 9th of November, 1870, been preparing and vending said pills, and using the labels and trade-marks to designate their genuineness and to commend their value and utility.

Evidence was introduced by the respondent, whose name is James H. McLean, that he commenced in 1849, in St. Louis, to manufacture his own medicines; that in 1851 he began to manufacture and sell liver-pills, under the name of 'Dr. McLean's Universal Pills,' using first a type-printed label in red letters, which was changed, in 1852, to a lithographed red label, called in the decretal order 'Exhibit L,' which was used down to 1866, except that about 1863 he added to his name the initials 'J.H.,' so that the label read, 'Dr. J. H. McLean's Universal Pills;' that in 1866 he changed his label to the one referred to in the decretal order as 'Exhibit K,' which he continued to use until May 21, 1872, when he adopted a new label, the use of which does not infringe the trade-mark of the complainant.

Governed by these facts as stated, the court will examine the first error assigned; which is, that the court erred in finding that the labels L and K infringed complainant's Exhibit H, as set forth in the decretal order. By the order, the respondent, James H. McLean, his agents, employees, and servants, are perpetually enjoined and restrained from using, or causing to be used, the words 'Dr. J. H. McLean's Universal Pills or Vegetable Liver Pills,' or the words 'Dr. McLean's Universal Pills,' upon any label or wrapper for boxes or other packages of pills resembling or in imitation of the labels, wrappers, or trade-mark of the complainant, described in his bill of complaint as 'Exhibit H,' whether in style of engraving, printing, or lettering; and from vending or exposing for sale, or causing to be vended or exposed for sale, any article of pills having upon the boxes or other packages thereof any such labels or wrappers so made in limitation of or resemblance to the said labels or wrappers of the complainant.

Equity gives relief in such a case, upon the ground that one man is not allowed to offer his goods for sale, representing them to be the manufacture of another trader in the same commodity. Suppose the latter has obtained celebrity in his manufacture, he is entitled to all the advantages of that celebrity, whether resulting from the greater demand for his goods or from the higher price the public are willing to give for the article, rather than for the goods of the other manufacturer, whose reputation is not so high as a manufacturer. Where, therefore, a party has been in the habit of stamping his goods with a particular mark of brand, so that the purchasers of his goods having that mark or brand know them to be of his manufacture, no other manufacturer has a right to adopt the same stamp; because, by doing so, he would be substantially representing the goods to be the manufacture of the person who first adopted the stamp, and so would or might be depriving him of the profit he might make by the sale of the goods which the purchaser intended to buy. Seixo v. Provezende Law Rep. 1 Ch. 195.

What degree of resemblance is necessary to constitute an infringement is incapable of exact definition, as applicable to all cases. All that courts of justice can do, in that regard, is to say that no trader can adopt a trade-mark, so resembling that of another trader, as that ordinary purchasers, buying with ordinary caution, are likely to be misled.

Unreasonable delay in bringing a suit is always a serious objection to relief in equity; but cases arise in litigations of the kind before the court where the complainant may be entitled to an injunction to restrain the future use of a trade-mark, even when it becomes the duty of the court to deny the prayer of the bill of complaint for an account of past gains and profits. Harrison v. Taylor, 11 Jur. N. S. 408.

In such cases, the question is not whether the complainant was the original inventor or proprietor of the article made by him, and on which he puts his trade-mark, nor whether the article made and sold under his trade-mark by the respondent is equal to his own in value or quality, but the court proceeds on the ground that the complainant has a valuable interest in the good-will of his trade or business, and, having adopted a particular label, sign, or trade-mark, indicating to his customers that the article bearing it is made or sold by him or by his authority, or that he carries on business at a particular place, he is entitled to protection against one who attempts to deprive him of his trade or customers by using such labels, signs, or trade-mark without his knowledge or consent. Coats v. Holbook, 2 Sandf. (N. Y.) Ch. 586; Partridge v. Menck, 2 Barb. (N. Y.) Ch. 101.

Everywhere courts of justice proceed upon the ground that a party has a valuable interest in the good-will of his trade, and in the labels or trade-mark which he adopts to enlarge and perpetuate it. Hence it is held that he, as proprietor, is entitled to protection as against one who attempts to deprive him of the benefits resulting from the same, by using his labels and trade-mark without his consent and authority. Decided cases to that effect are quite numerous, and it is doubtless correct to say that a person may have a right in his own name as a trade-mark as against a trader or dealer of a different name; but the better opinion is, that such a party is not, in general, entitled to the exclusive use of a name, merely as such, without more. Millington v. Fox, 3 Myl. & Cr. 338; Dent v. Turpin, 2 Johns. & Hem. 139; Meneely et al. v. Meneely, 62 N. Y. 427.

Instead of that, he cannot have such a right, even in his own name, as against another person of the same name, unless such other person uses a form of stamp or label so like that used by the complaining party as to represent that the goods of the former are of the latter's manufacture. Nor will any other name, merely as such, confer any such exclusive right, unless the name is printed in some particular manner in a label of some peculiar characteristics, so that it becomes, to some extent, identified with a particular kind of goods, or when the name is used by the party, in connection with his place of business, in such a manner that it assumes the character of a trade-mark within the legal meaning of that term, and as such entitles the party to the protection of a court of equity, to prevent others from infringing the proprietor's exclusive right. Gilman v. Hunnewell, 122 Mass. 139; Colladay v. Baird, 4 Phil. (Pa.) 139; Sykes v. Sykes, 3 B. & C. 541; Croft v. Day, 7 Beav. 89; Burgess v. Burgess, 3 DeG., M. & G. 896; Holloway v. Holloway, 13 Beav. 209; Rogers and Others v. Taintor, 97 Mass. 291.

Much must depend, in every case, upon the appearance and special characteristics of the entire device; but it is safe to declare, as a general rule, that exact similitude is not required to constitute an infringement or to entitle the complaining party to protection. If the form, marks, contents, words, or the special arrangement of the same, or the general appearance of the alleged infringer's device, is such as would be likely to mislead one in the ordinary course of purchasing the goods, and induce him to suppose that he was purchasing the genuine article, then the similtude is such as entitles the injured party to equitable protection, if he takes seasonable measures to assert his rights, and to prevent their continued invasion. James v. James, Law Rep. 13 Eq. 425; Singleton v. Bolton, 3 Doug. 293; Morrison v. Salmon, 2 Man. & G. 385; Boardman v. Meriden Britannia Co., 35 Conn. 413.

Such a proprietor, if he owns or controls the goods which he exposes to sale, is entitled to the exclusive use of any trade-mark adopted and applied by him to the goods, to distinguish them as being of a particular manufacture and quality, even though he is not the manufacturer, and the name of the real manufacturer is used as part of the device. Walton v. Crowley, 3 Blatchf. 440; Emerson v. Badger, 101 Mass. 82.

Equity courts will not, in general, refuse an injunction on account of delay in seeking relief, where the proof of infringement is clear, even though the delay may be such as to preclude the party from any right to an account for past profits. Rodgers v. Rodgers, 31 L. T. 285; Blackwell v. Crabb, 45 L. J. Pt. I. 505.

Positive proof of fraudulent intent is not required where the proof of infringement is clear, as the liability of the infringer arises from the fact that he is enabled, through the unwarranted use of the trade-mark, to sell a simulated article as and for the one which is genuine. Wotherspoon v. Currie, Law Rep. 5 App.Cas. 512.

Nor is it necessary, in order to give a right to an injunction, that a specific trade-mark should be infringed; but it is sufficient that the court is satisfied that there was an intent on the part of the respondent to palm off his goods as the goods of the complainant, and that he persists in so doing after being requested to desist. Woollam v. Ratcliff, 1 Hem. & M. 259.

Apply these rules to the case, and it is clear that the charge of infringement is satisfactorily proved in this case.

Words or devices, or even a name in certain cases, may be adopted as trade-marks which are not the original invention of the party who appropriates the same to that use; and courts of equity will protect the proprietor against any fraudulent use or imitation of the device by other dealers or manufacturers. Property in the use of a trade-mark, however, bears very little analogy to that which exists in copyrights or in patents for new inventions or discoveries, as they are not required to be new, and may not involve the least invention or skill in their discovery or application. Phrases, or even words in common use, may be adopted for the purpose, if, at the time of their adoption, they were not employed by another to designate the same or similar articles of production or sale. Stamps or trade-marks of the kind are employed to point out the origin, ownership, or place of manufacture or sale of the article to which it is affixed, or to give notice to the public who is the producer, or where it may be purchased. Canal Company v. Clark, 13 Wall. 311.

Subject to the qualification before explained, a trade-mark may consist of a name, symbol, figure, letter, form, or device, if adopted and used by a manufacturer or merchant in order to designate the goods he manufactures or sells to distinguish the same from those manufactured or sold by another, to the end that the goods may be known in the market as his, and to enable him to secure such profits as result from his reputation for skill, industry, and fidelity. Upton, Trade-marks, 9; Taylor v. Carpenter, 2 Sandf. (N. Y.) Ch. 603; Coddington, Dig. 9.

Complainant's pills have been in the market as a vendible article for more than forty years, and during that whole period have been sold under trade-marks of the forms heretofore sufficiently described, and they are still sold under the trade-mark mentioned in the decretal order.

Difficulty frequently arises in determining the question of infringement; but it is clear that exact similarity is not required, as that requirement would always enable the wrong-doer to evade responsibility for his wrongful acts. Colorable imitation, which requires careful inspection to distinguish the spurious trade-mark from the genuine, is sufficient to maintain the issue; but a court of equity will not interfere, when ordinary attention by the purchaser of the article would enable him at once to discriminate the one from the other. Where the similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care and caution in such matters, it is sufficient to give the injured party a right to redress, if he has been guilty of no laches. Amoskeag Manufacturing Co. v. Spear, 2 Sandf. S.C.. 599; Coddington, Dig. 109; McAndrew v. Bassett, 4 DeG., J. & S. 380.

Argument to show that the name of the pills, as given in the trade-mark of the respondent, was of a character to mislead and deceive, is scarcely necessary, as they are idem sonans in the usual pronunciation; nor can it be doubted that the form of the box containing the pills and the general appearance of the wrapper which surrounded it were calculated to have the same effect. Mention may also be made of the fact that the color of the label and the wax impression on the top of the box are well suited to divert the attention of the unsuspecting buyer from any critical examination of the prepared article.

Chancery protects trade-marks upon the ground that a party shall not be permitted to sell his own goods as the goods of another; and, therefore, he will not be allowed to use the names, marks, letters, or other indiciae of another, by which he may pass off his own goods to purchasers as the manufacture of another. Croft v. Day, 7 Beav. 84; Perry v. Truefitt, 6 id. 66; Newman v. Alford, 51 N. Y. 192.

Witnesses in great numbers were called by the complainant, who testified that the Exhibits L and K of the respondent were calculated to deceive purchasers; and the reasons given by them in support of the conclusion are both persuasive and convincing. Difference between those exhibits and Exhibits F and H of the complainant undoubtedly exist; and still it is manifest that the general appearance of the package in the respects mentioned, and others which might be suggested, is well calculated to mislead and deceive the unwary and all others who purchase the article without opening the box and examining the label. Caswell et al. v. Davis, 58 N. Y. 223.

Two trade-marks are substantially the same in legal contemplation, if the resemblance is such as to deceive an ordinary purchaser giving such attention to the same as such a purchaser usually gives, and to cause him to purchase the one supposing it to be the other. Gorham Company v. White, 14 Wall. 511.

Suffice it to say, without entering further into details, the court is of the opinion that the first assignment of error must be overruled, and that the injunction was properly granted to prevent infringement subsequent to the filing of the bill of complaint.

Suppose that is so, still the respondent contends that the court erred, as alleged in the second assignment of errors, and that the complainant is not entitled to an account, nor to a decree for gains, profits, or damages. Support to that proposition is attempted to be drawn from the long delay of the complainant, and those under whom he claims, to take any legal steps to protect their alleged rights. Opposed to that, it is insisted by the complainant that no such defence is open to the respondent, as it was not set up in the answer. Nothing of the kind is directly set up in the answer; but the respondent denies all intent to injure or defraud the complainant, and avers that he has been engaged during the last twenty years in perfecting his pills, and that he had no idea that his trade-marks infringed the trade-marks of the complainant.

Proofs were taken upon both sides upon the subject; and the respondent, in his petition for rehearing filed in the court below, expressly alleges that the immediate predecessor of the complainant was perfectly familiar with the pills manufactured by the respondent, and well knew that the respondent used the labels in question; that the agent of the complainant, May 20, 1872, called on the respondent and remonstrated with him for using the label Exhibit K, and that he on the following day adopted a different label, as therein fully explained.

Examined in the light of these suggestions, the court is of the opinion that the question presented in the second assignment of error is open for re-examination. Sullivan v. ''Portland, &c. Railroad Co.'', 94 U.S. 806.

Repetition of the facts is unnecessary, as it sufficiently appears that the respondent has been engaged in preparing and selling his pills for more than forty years; that during that period, or more than half of it, he has been using labels and trade-marks corresponding more or less to those used by the predecessors of the complainant, some of whom, during all or most of that time, knew what the labels and trade-marks were which were used by the respondent, the evidence to that effect being full and decisive.

Negotiations took place at one time between the respondent and one of the predecessors of the complainant for an interchange of commodities, with a view that both commodities might be sold at each of their respective places of business.

Evidence of a decisive character is exhibited in the record to show that the complainant or his predecessor knew throughout what description of labels and trade-marks the respondent was using; and it does not appear that any objection was ever made, except as heretofore stated and explained. Once, the respondent was requested to insert the initials of his Christian name before his surname, in the label; and it appears that he immediately complied with the request.

Cases frequently arise where a court of equity will refuse the prayer of the complainant for an account of gains and profits, on the ground of delay in asserting his rights, even when the facts proved render it proper to grant an injunction to prevent future infringement. Harrison v. Taylor, 11 Jur. N. S. 408; Cox, Trade-marks, 541.

Relief of the kind is constantly refused, even where the right of the party to an injunction is acknowledged because of an infringement, as in case of acquiescence or want of fraudulent intent. Moet v. Couston, 33 Beav. 578; Edelsten v. Edelsten, 1 De G., J. & § 185; Millington v. Fox, 3 Myl. & Cr. 398; Myeth v. Stone, 3 Story, 284; Beard v. Turner, 13 Law Times, N. S. 747; Estcourt v. Estcourt, Law Rep. 10 Ch. 276; Coddington, Dig. 162; High, Injunc. 405.

Acquiescence of long standing is proved in this case, and inexcusable laches in seeking redress, which show beyond all doubt that the complainant was not entitled to an account nor to a decree for gains or profits; but infringement having been proven, showing that the injunction was properly ordered, he is entitled to the costs in the Circuit Court; but the decree for an account and for the supposed gains and profits being erroneous, the respondent, as appellant, is entitled to costs in this court. Browne, Trade-marks, sect. 497.

Decree as to the injunction and costs in the Circuit Court will be affirmed, but it will be reversed as to the decree for an account and as to the allowance for gains and profits, with costs in this court for the appellant; and the cause will be remanded with direction to enter a decree in conformity with the opinion of this court; and it is

So ordered.

title: McLean v. Fleming/Opinion of the Court


text: Talk:McLean v. Fleming/Opinion of the Court


text:
Railway Company v. McCarthy

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

This is an action by John McCarthy against the Ohio and Mississippi Railway Company, to recover damages alleged to have been sustained by him in consequence of negligence, carelessness, and delay on the part of the defendant in the execution of the following contract of affreightment:--

'This agreement, made this twenty-third day of September, A.D. 1873, between the Ohio and Mississippi Railway Company, party of the first part, and John McCarthy, party of the second part, witnesseth:--

'That the party of first part will forward to the party of the second part the following freight: to wit, sixteen cars, more or less, from E. St. Louis to Philadelphia, at the rate of $130 per car, which is a reduced rate, made expressly in consideration of this agreement; in consideration of which the party of the second part agrees to take care of said freight while on the trip, at his or their own risk and expense; and that the party of the first part shall not be responsible for any loss, damage, or injury which may happen to said freight in loading, forwarding, or unloading, by suffocation or other injury caused by overloading cars, by escapes from any cause whatever, by any accident in operating the road, or delay caused by storm, fire, failure of machinery or cars, or obstruction of track from any cause, or by fire from any cause whatever, or by any other cause except gross negligence; and that said party of the first part and such connecting lines shall be deemed merely forwarders and not common carriers, and only liable for such loss, damage, injury, or destruction of freight as may be caused by gross negligence only, and not otherwise.

'Witness our hands and seals in duplicate.

'OHIO & MISSISSIPPI RAILROAD COMPANY. [SEAL.]

'By H. COPE, Agent.

'JOHN McCARTHY.' [SEAL.]

The facts in the case, as exhibited by the bill of exceptions, are set forth in the opinion of the court. They are, therefore, omitted here.

Upon the close of the testimony, the defendant requested the court to charge the jury—

1. That the plaintiff cannot recover damages for such loss, damage, or injury as was sustained by his cattle by loading, forwarding, or unloading; by suffocation or other injury caused by overloading cars; by escapes from any cause whatever; by any accident in operating the road, or delay caused by failure of machinery or cars, or obstruction of track from any cause except gross negligence; or from any cause not occasioned by gross negligence on the part of the Ohio and Mississippi Railroad Company, or the Marietta and Cincinnati Railroad Company, or the Baltimore and Ohio Railroad Company.

2. That under the contract the plaintiff can only recover for such injuries or damages as the cattle sustained before they passed into the possession of the Marietta and Cincinnati Railroad Company.

3. That the plaintiff cannot recover for such injuries as his stock sustained after they passed into the possession of the Baltimore and Ohio Railroad Company at Parkersburg.

4. That it was not the duty of the defendant, or its connecting line, the Baltimore and Ohio Railroad Company, to start out from Parkersburg on Sunday with the plaintiff's cattle, and that the plaintiff cannot recover damages for failure to do so.

5. That the jury must find for the defendant, unless they shall believe from the evidence that the plaintiff was the sole owner of the cattle in controversy; and that if they shall believe from the evidence that Hensley was a part-owner of the cattle, or in the proceeds thereof, that they must find for the defendant.

6. That the plaintiff cannot recover for such injuries as the cattle sustained through the negligence of the defendant, or of the other railroad companies operating the connecting lines, provided that the negligence of the plaintiff, or his employees or agents, contributed thereto.

7. That if the jury shall find from the evidence that the cattle in controversy had been confined in the defendant's cars for a longer period than twenty-eight consecutive hours upon their arrival at Cincinnati, it was the duty of the defendant to unload them, for rest, water, and feeding; and the defendant cannot be made liable for that detention.

8. That if injuries were sustained in consequence of causes specified and excepted in the contract of shipment made at East St. Louis, then the burden of proof is upon the plaintiff to show that such injuries were occasioned by the negligence of the defendant.

The court gave the instructions embraced by the sixth, seventh, and eighth requests, but refused all the rest. To which refusal the defendant excepted.

The court thereupon, sua sponte, charged as follows:--

'The contract between the plaintiff and the defendant contemplates that the owner, through his own agents, should have the care and custody of the cattle throughout the entire route, that is, the loading and unloading of them at the necessary intervals of rest, food, and water,-seeing that they were properly loaded and unloaded, and properly cared for.

'The defendant bound itself to transport safely, if it could be so done through the exercise of ordinary care and diligence on its part.

'Ordinarily, a common carrier,-that is, a railroad,-in the absence of a special contract of this kind, is held as an insurer. In other words, nothing that could be prevented by prudence or foresight is he excused from having done; and he must transport the cattle to their destination, unless something beyond his power and control prevents it. But that is not this contract. The parties to this suit presented a special contract for the transportation of the cattle in question; and it is for the jury to determine from the evidence whether the cattle were injured, or the plaintiff sustained any damages, in consequence of the gross neglect of the defendant or of the connecting railroads. The defendant was bound to exercise ordinary care and diligence in operating the railroad, so as to prevent injury to the cattle, arising from delays or otherwise.

By the terms of the contract, the care of the cattle devolved on plaintiff and his agents, and not on the defendants. For any injury to the cattle caused by the manner of loading or unloading the same, or by the nature of their habits, not caused by the negligence of the defendant in operating the railroad and cars, the plaintiff cannot recover. That is, if those cattle, from their very nature, among themselves hurt themselves, independent of what the railroad was doing, externally to the cars, the plaintiff cannot recover for that.

'The defendant contends that at Parkersburg the plaintiff, instead of sending forward the cattle, made a new and independent contract with the Baltimore and Ohio Railroad Company; that for the transportation from Parkersburg to Baltimore the plaintiff made an entirely new contract, and did not go forward under the old contract; that he entered into a new contract with other parties, and under that contract he will have to look to the other parties for redress. But, on the other hand, the plaintiff contends that the Baltimore and Ohio Railroad Company refused to permit the cattle to go forward unless the alleged new contract was signed. If the alleged contract was signed by the plaintiff's agent as the sole means whereby the cattle could go forward, as the original contract with defendant contemplated, then the signing of that new paper at Parkersburg did not release or discharge the defendant from its obligations to send forward such cattle, as originally agreed, without unreasonable delay.

'The original contract was made upon the part of the Ohio and Mississippi Railroad to transport to Philadelphia, for a certain price per car, sixteen car-loads of cattle, the privilege being given to the plaintiff to sell as he pleased at Cincinnati or at Baltimore. Now, the Ohio and Mississippi Railroad took upon itself the sending of the cattle beyond its terminus at Cincinnati, and took the freight for the whole distance, and was bound to see that the cattle were carried the whole distance. It made the agreement, and must see it executed.

'Consequently, if when under that agreement those cars reached Parkersburg, this intermediate road, which was the agent, the Baltimore and Ohio Road, refused to take the cattle forward despite the agreement with the Ohio and Mississippi Railroad, unless the plaintiff would sign a paper whereby he would exonerate it from any thing that might happen; if, then, the plaintiff signed, or his agent signed, the paper under those circumstances, as the only means of getting those cattle forward, that defence avails nothing.

'The transportation of cattle for long distances has caused, for it protection, recent legislation by Congress. That legislation requires under a penalty, that cattle transported over railroads shall, in the absence of unavoidable delays by storm or accident, have a rest for at least five consecutive hours, for each run of twenty-eight hours. In other words, cattle shall not be confined in cars for more than twenty-eight consecutive hours, without giving them at least five consecutive hours for rest, food, and water. An act very important, though it is not involved directly in this case. You have heard a great deal about the forty-four hours' run in this case. Every effort to do that is a violation of the express law of the land, unless occasioned by storm or accident.

'In the transit from East St. Louis to Baltimore, in obedience to the law of the land, a delay which said law requires is not an unreasonable delay for which the defendant is chargeable. It was bound to obey the law; and that amount of delay is not a reasonable delay, but a required delay. For all such delays as occurred in that run, pursuant to law, it, so far as being amenable to this plaintiff, is justified, for it was bound by law to make such delays; and the plaintiff himself, having custody of the cattle, is subject to a penalty if he transported the cattle for a longer run twenty-eight hours without giving them, after that, five full hours' rest. So, in computing this question of unreasonable delay, you will bear in mind they were bound to give five consecutive hours for every twenty-eight hours' run.

'It is, therefore, for the jury, in the light of said requirements of law, for such delays, to determine whether there was, in addition thereto, any unreasonable delays caused by negligence on the part of the defendant or the other roads. Take into consideration the distance to be travelled, and the usual and ordinary modes of transportation in such cases. The main question, then, is, whether the cattle were injured from the negligence of the defendant or any of the intermediate lines, without the plaintiff or his agents contributing thereto. If both parties contributed to the injury, neither party can recover from the other.'

To the said charge and statement of facts by the court made to the jury, and to the several propositions therein announced by the court as the law of the case, the defendant then and there excepted.

There was a verdict and judgment for the plaintiff, whereupon the company brought the case here.

Mr. D. W. Paul for the plaintiff in error.

The plaintiff in error was only a forwarder. In the absence of any special contract, it was, therefore, only bound to carry the cattle safely and securely over its own road, and, at its terminus, deliver them to the succeeding company, with suitable directions for their carriage the rest of the way. Railroad Company v. Manufacturing Company, 16 Wall. 318; Railroad Company v. Pratt, 22 id. 123; Story, Bailments, sect. 448; Reed v. United States Express Co., 48 N. Y. 462; Inhabitants, &c. v. Hall et al., 61 Me. 519; Hooper v. Wells, Fargo, & Co., 27 Cal. 40.

The plaintiff in error cannot be held liable for the failure of its connecting line, the Baltimore and Ohio Railroad Company, to forward the cattle from Parkersburg on Sunday. Code of West Virginia (1868), p. 694, c. 149, sects. 16, 17; Pate v. Wright et al., 30 Ind. 476; Powhatan Steamboat Co. v. Appomattox Railroad Co., 24 How. 247.

Mr. John D. S. Dryden, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Railway Company v. McCarthy


text: Talk:Railway Company v. McCarthy

title: Talk:Railway Company v. McCarthy