text:
Gordon v. Butler/Opinion of the Court

This was an action for alleged fraud upon Butler, the plaintiff below, in obtaining from him a loan of $10,000 upon insufficient security. The facts of the case, so far as necessary to present the questions involved for our consideratlion, are briefly as follows:--

Near the town of Potsdam, in New York, there are sandstone quarries, situated on the west bank of Racket River. The land containing them, when the loan was made, was divided into lots, varying in size from seven to thirty-six acres. Previously to 1873 the quarries, although generally supposed to consist of stone valuable for building and other purposes, had not been opened sufficiently to show their extent and value. A quarry similar in external appearance, situated on the river below and adjoining them, called the Parmeter quarry, had been worked for thirty or forty years, and furnished stone of a valuable quality in large quantities. For some years prior to 1872 the defendant, Gordn, a resident of Potsdam, had been assiduously trying to get possession of the quarries, in the belief that on development they would prove valuable, like the Parmeter quarry. His letters to Butler, the plaintiff, written at the time, indicated a confident belief that a fortune was to be made out of them; and he invested in them whatever means he could raise.

The plaintiff, prior to 1872, had frequently visited Potsdam, where he became acquainted with Gordon, a lawyer in practice there, and often employed him professionally. During these visits he learned something of the quarries, and that Gordon desired to obtain possession of and develop them. In that year there was much correspondence between them on the subject. Gordon expressed a strong conviction that the stone would be very valuable, and find a ready market, and stated what he had heard of the buildings on which it had been used, and of those for which it would probably be wanted. He desired to organize a stock company to work the quarries, and to have the plaintiff join in the enterprise. Failing to secure his co-operation, and being advised by him that he had better work the quarries himself, Gordon applied for a loan for that purpose. After much correspondence and negotiation, the plaintiff promised to loan him $10,000, to be secured by mortgage on some of the lots, and advised him against investing a larger sum in them. The plaintiff, as is manifest from the correspondence, was fully aware at the time of the slightly developed condition of the property; but an estimate of its probable value was furnished by the following certificate obtained by Gordon from the defendants Watkins and Foster, well-known gentlemen of the place, and sent to him:--

'Each of the undersigned hereby certifies that he is and has     been for more than twenty years last past a resident of      Potsdam, St. Lawrence Co., New York, and acquainted with the      sandstone quarries south of Potsdam village; that he is      acquainted with the quarry lots there owned by S. B. Gordon,      and situate on the westerly shore of Racket River; that said      lots are roughly represented on the annexed diagram; have on      them the buildings, and in his best judgment contain the quantity of land, and are would the      sums severally below cited, to wit:

"No. 1-Falls Lot  about  8  acres, worth $8,

" 2-Orchard Lot  about  4  acres, worth  5,

" 3-Cox Lot   about 16  acres, worth  8,

" 4-Hicks Lot  about 15  acres, worth  5,

" 5-Meacham Lot house and

barn about 7  acres, worth  5,

" 6-Hale Lot  about 10  acres, worth  1,

" 7-Parmeter Lot 2 houses

and barns   about 17  acres, worth  8,

" 8-Train Lot  about 26  acres, worth  8,

--

'Dated Potsdam, Dec. 12, 1872.

'H. WATKINS.

'E. W. FOSTER.'

No oral representations on the subject were made to the plaintiff by Watkins or Foster. Their connection with the loan consisted merely in furnishing this certificate at the request of Gordon. The loan was made on the first of the following January, and a mortgage taken as security for it upon four of the lots mentioned in the certificate, the aggregate value of which, as there stated, being $26,000. Watkins and Foster were at the time interested in the proposed enterprise; and their estimate of value was placed upon the lots, not as agricultural lands, but as lands containing sandstone quarries not yet opened.

After receiving the loan Gordon proceeded to open the quarries, and his operations had not progressed far when the financial crisis of 1873 came, and in it his enterprise was engulphed. The work on the quarries was stopped, and the value of the property rapidly depreciated. The mortgage to the plaintiff contained a clause declaring that the whole amount of the loan should at once become due if the interest was not punctually paid. Taking advantage of this clause, he commenced proceedings to foreclose the mortgage, and pressed them to a decree under wi ch the premises were sold and bid in by him for the sum of $1,500. He then commenced the present action against Gordon, who had obtained the loan, and Watkins and Foster, who had given the certificate as to the value of the property, to recover damages for the loss sustained by him. In his complaint he alleges that these parties conspired to defraud him by obtaining the loan upon a false and fraudulent certificate as to the value of the property.

The defendants pleaded the general issue. On the trial the plaintiff produced the correspondence between him and Gordon, which resulted in the loan. He also offered the testimony of geologists, experts, and laborers as to the probable character and value of the material in the quarries. The whole, including the correspondence, covers many pages of the record, but its substance and purport, so far as it is at all material, we have stated. When it was closed, the defendants requested the court to direct the jury to find for them on several grounds, and, among others, that, upon the whole proof, no cause of action had been established against them. The court refused to give this direction, and an exception was taken. Testimony was then produced by the defendants; and, after instructions from the court, the case was submitted to the jury, who found for the plaintiff.

We do not deem it important to comment upon this testimony, or to notice the rulings of the court upon matters which were objected to, nor upon its instructions to the jury. It is enough to observe that if the testimony did not weaken, it did not strengthen, the case against the defendants. The question then is whether, upon the proof furnished by the plaintiff, a cause of action was established against the defendants; for, if not, the motion to direct the jury to find in their favor should have been granted. Upon this question we have no doubt. The essence of the charge against them is a conspiracy to defraud the plaintiff, carried into execution by a false and fraudulent certificate of valuation of the property given as security for the loan. The certificate of Watkins and Foster is that, in the best judgment of each, the lots were worth the sums severally stated. To justify any imputation of fraud in giving the certificate, it was necessary to show that the parties signing it had knowledge, at the time, that the value of the property was materially less than their estimate. And from the nature of the property, and its imperfectly developed condition, such knowledge was impossible. No one could know its actual value until further development was made. Until then, any estimate must have been entirely speculative and conjectural. It would depend as much, perhaps, upon the temperament and expectations of the party making it, as upon any knowledge of facts. The law does not hold one responsible for the extravagant notions he may entertain of the value of property, dependent upon its future successful exploitation, or the result of future enterprises; nor for expressing them to one acquainted with its general character and condition. How could an overestimate in such a case be shown? Other estimates would be equally conjectural. The law does not fasten responsibility upon one for expressions of opinion as to matters in their nature contingent and uncertain. Such opinions will probably be as variant as the individuals who give them utterance. A statement of an opinion assigning a certain value to property like a mine or a quarry not yet opened is not to be pronounced fraudulent because the property upon subsequent development may prove to be worthless; nor is it to be pronounced honest because the property may turn out of much higher value.

The case of Holbrook v. Connor, which arose in the Supreme Court of Maine, illustrates this doctrine. There the vendor and his agent represented, among other things, that lands sold by them contained large deposits of oil, and were of great value for the purpose of digging, boring for, and manufacturing it; and upon the representations the u rchasers acted. The evidence tended to show that the representations were false and fraudulent, and the plaintiff obtained a verdict; but the Supreme Court set it aside. It appeared that the land had not been tested; and it was unknown to both parties whether it was valuable as oil land, except so far as might be inferred from the production of wells on neighboring lands, and a single well upon the land in question. The court held that under these circumstances the representation was to be regarded as a matter of opinion, and would not support the action. 60 Me. 578.

Whenever property of any kind depends for its value upon contingencies which may never occur, or developments which may never be made, opinion as to its value must necessarily be more or less of a speculative character; and no action will lie for its expression, however fallacious it may prove, or whatever the injury a reliance upon it may produce. The determination of its truth or falsity, until the contingency occurs or becomes impossible, would lead the court into investigations for which they have no fixed rules to guide their own judgments or to instruct juries.

For opinions upon matters capable of accurate estimation by application of mathematical rules or scientific principles, such, for example, as the capacity of boilers, or the strength of materials, the case may be different. So, also, for opinions of parties possessing special learning or knowledge upon the subjects in respect to which their opinions are given, as of a mechanic upon the working of a machine he has seen in use, or of a lawyer upon the title of property which he has examined. Opinions upon such matters are capable of approximating to the truth, and for a false statement of them, where deception is designed, and injury has followed from reliance on them, an action may lie. But to this class the present case does not belong. It falls within the class first mentioned.

It follows from these views, that the court below should have directed the jury, upon the close of the plaintiff's testimony, to find a verdict for the defendants; for, from the nature of the subject, in relation to which the certificate was given, the estimate of value was nothing more than a conjectural opinion, which, whether true or false, constituted no legal cause of complaint.

The judgment of the court below must, therefore, be reversed, and the cause remanded for a new trial; and it is

So ordered.

title: Gordon v. Butler/Opinion of the Court


text: Talk:Gordon v. Butler/Opinion of the Court

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


text: Page:The Works of J. W. von Goethe, Volume 10.djvu/233


text:
Packet Company v. Catlettsburg

APPEAL from the Circuit Court of the United States for the District of Kentucky.

The facts are stated in the opinion of the court.

Mr. David Stuart Hounshell for the appellant.

There was no opposing counsel.

Mr. JUSTICE MILLER delivered the opinion of the court.

title: Packet Company v. Catlettsburg


text: Page:The Works of J. W. von Goethe, Volume 10.djvu/234


text: Talk:Packet Company v. Catlettsburg

title: Talk:Packet Company v. Catlettsburg


text:
Packet Company v. Catlettsburg/Opinion of the Court

This was a suit in chancery brought by the Cincinnati, Portsmouth, Big Sandy, and Pomeroy Packet Company against the Board of Trustees of the Town of Catlettsburg.

The bill is very inartifically drawn, and its allegations very imperfectly present some of the questions which, by the brief of counsel, it is supposed to have raised. It alleges the complainant to be a corporation, owning a large number of steamboats engaged in the navigation of the Ohio River, and making frequent landings at the public wharf of the town of Catlettsburg, on the Kentucky side of that river. That upon each of said landings they were subjected to an illegal tax proportioned to the tonnage of each of said boats, amounting, between Jan. 1, 1870, and April 30, 1877, to an aggregate sum of $5,092. Parts of the ordinance of the town under which this tax was collected, and of the statute of Kentucky supposed to authorize the ordinance, are set out in the bill. This ordinance is alleged to be void as a regulation of commerce, and as laying a duty of tonnage forbidden by section ten of the first article of the Constitution. The bill then alleges that the tax is excessive and beyond a reasonable charge for the use o the wharf by the boats of the complainant, and that the amount already collected exceeds the cost of erecting and preserving the wharf.

An amended bill was also filed, which does not materially affect the matters in issue.

The thirty-first section of the act of the Kentucky legislature of Jan. 28, 1868, incorporating the town of Catlettsburg, authorizes the board of trustees 'to erect, make, and repair wharves and docks, and to regulate and fix the rate of wharfage thereat; to regulate the stationing or anchoring of vessels or boats or rafts within the town limits, and the depositing freight or lumber on the public wharves.'

The ordinances of the town complained of are the following, enacted Feb. 23, 1871:--

'The following rates are established as charges upon     steamboats and other water-crafts landing at the public      landing of Catlettsburg, Ky.: On transient steamboats, $1 for      every landing; on the largestsized regular packets, over 100      tons, custom-house measure, $1 for landing; and on all      steamboats under 100 tons burthen, fifty cents for each      landing; for all store-boats or trading-boats, $1 for each      landing, and if they remain more than one day, fifty cents      per day for each day they remain; and for each wharf-boat      used for the purpose of wharfage and commission, $10 per      month.'

And another, adopted by said board of trustees May 5, 1873, in the following words:--

'That the public landing on the Ohio River, between Division     and Main Streets, is hereby appointed and established as a      steamboat landing, and all steamboats arriving at the town of      Catlettsburg shall land at the wharf situate as aforesaid      between Division Street and Main Street, and at no other      point within the corporate limits of the town of      Catlettsburg, except by the written consent of the      wharfmaster of said town.

'That for any violation of the foregoing section the owners,     controllers, or masters of any boat so violating shall be      jointly and severally liable to pay a fine of $10 for each      offence, which may be recovered by warrant in the name of the      Commonwealth of Kentucky, for the use of the Board of Trustees of the town of      Catlettsburg.

'It is hereby made the duty of the wharfmaster to enforce     this ordinance, and to report and prosecute all violations      thereof.'

The prayer of the bill is for an injunction restraining the defendants from the collection of all taxes from the complainant's boats while landing at the natural and unimproved shore of the Ohio River, and at points other than the improved landing of the defendants, between Division and Main Streets, and from the collection of all excessive taxes while landing at any point within the corporate limits, and from the enforcement of the ordinance requiring them to land at the defendants' improved wharf, between Division and Main Streets; and the original bill prayed a decree for the sums improperly exacted of complainant.

The court below held, on demurrer to the original bill, that there could be no recovery in this suit for the amount illegally exacted and paid, because an action at law was the appropriate and adequate remedy for that purpose, and in that the court was probably right.

If, however, the bill presents no ground for the injunction prayed, the prayer for recovery of a moneyed decree becomes immaterial.

The framer of the bill seems to have labored under a misapprehension of the nature of the transaction in calling the demands made of the complainant taxes. We can see nothing in the ordinances intended to impose a tax upon anybody. The bill, as we have said, is not very clear in its statements of the manner in which this money was paid or collected. It must, however, have been paid for the use of defendants' wharf or improved landing-place, in which case it is complained of as an excessive charge, or it must have been paid as a penalty for landing at other points than between Division and Main Streets in violation of the ordinance. In neither case is there anything in the nature of a tax.

The effort of the pleader undoubtedly is tob ring the case within the constitutional prohibition of a tax upon tonnage.

If, however, the trustees of the town had a right to compensation for the use of the improved landing or wharf which they had made, it is no objection to the ordinance fixing the amount of this compensation that it was measured by the size of the vessel, and that this size was ascertained by the tonnage of each vessel. It is idle, after the decisions we have made, to call this a tax upon tonnage. Cannon v. New Orleans, 20 Wall. 577; Packet Company v. Keokuk, 95 U.S. 80; Packet Company v. St. Louis, 100 id. 423; Guy v. Baltimore, id. 434.

Still less ground exists for holding that the penalties imposed for a refusal to obey the rules for places of landing, and the orders of the wharfmaster on that subject, are taxes on tonnage.

Nor is there any room to question the right of a city or town situated on navigable waters to build and own a wharf suitable for vessels to land at, and to exact a reasonable compensation for the facilities thus afforded to vessels by the use of such wharves, and that this is no infringement of the constitutional provisions concerning tonnage taxes and the regulation of commerce. See cases above cited.

There remains to be considered the validity of the ordinance which forbids the landing of vessels, except by the permission of the wharfmaster, at any other point within the town than between Division and Main Streets, and the question of excessive charges for the use of the wharf.

There can be no doubt that the rules which govern the landing and departure of vessels at points situated on navigable waters may seriously affect them in their business of navigation and transportation, and in some sense such rules are regulations of commerce.

On the other hand, the necessity is obvious of the existence in each port, where vessels as large as steamboats land at the shore and deposit their cargoes on the banks of navigable streams, of some authority to prescribe the places where this may be done, the time of doing it, and the points at which they may discharge cargo, both as relates to the streets, shores, houses of the town, and other vessels landing at the same time.

The protection of the shore of the sea or bank of a river on which a town is situated is a necessity to the town, and the washing and crumbling of the bank from the agitation of the waters, made by the landing of large steamers, demand that such regulations should exist.

Small vessels, without steam, rafts, flat-boats, keel-boats, loaded to their very utmost capacity, and liable to be sunk by the waves which accompany the landing of large steamboats, have the same right to land at the shore that steamers have, and they have a right to protection against their powerful competitors for trade. This can best be secured by appropriate regulations prescribing places for the landing of each, and in some instances placing the matter under the control of a wharfmaster or other officer, whose duty it shall be to look after it.

Such rules and regulations and such an officer exist in every place where the number of the inhabitants or the amount of the water-borne commerce justifies or requires it. The necessity for the existence of this power cannot be doubted.

We are not aware that in any instance Congress has attempted to exercise it. If it be a regulation of commerce under the power conferred on Congress by the Constitution, that body has signally failed to provide any such regulation. It belongs also, manifestly, to that class of rules which, like pilotage and some others, can be most wisely exercised by local authorities, and in regard to which no general rules, applicable alike to all ports and landing-places, can be properly made. If a regulation of commerce at all, it comes within that class in which the States may prescribe rules until Congress assumes to do so. Cooley v. Board of Wardens, 12 How. 299; Gilman v. Philadelphis, 3 Wall. 713; Crandall v. State of Nevada, 6 id 35; Pound v. Turck, 95 U.S. 459.

There is probably not a city or large town in the United States, situated on a navigable water, where ordinances, rules, and regulations like those of the town of Catlettsburg are not made and imposed by authority derived from State legislation, and the long acquiescence in this exercise of the power, and its, absolute necessity, are arguments almost conclusive in favor of its rightful existence.

We are of opinion that there is nothing in the ordinances of the town of Catlettsburg complained of, authorized as they clearly are by the statute of Kentucky, which is repugnant to the Constitution of the United States.

But while the authority to make such regulations may exist in the trustees of that town, it must be conceded that an oppressive abuse in the exercise of that power may present a case in which the proper court could give relief. If, for instance, while forbidding all boats to land elsewhere than at a designated and limited part of the shore, that space was too small to permit the landing at the same time of vessels whose business required it; or if, having assumed the obligation of providing appropriate and sufficient wharf accommodations and forbidden boats to land at any other place, there was in fact no proper landing-place provided, a court would find some remedy for such oppressive and arbitrary conduct.

But nothing in this bill implies that the landing-place pointed out by the ordinance is insufficient in dimensions or wanting in proper means of accommodating the business of the vessels using it.

So, also, while the statute authorizes the trustees to establish the rates of wharfage, if the sum demanded for that service is so far beyond a reasonable compensation for the use of the city's wharf as to be oppressive, and an abuse of the power thus conferred, the courts could in some way give appropriate relief, and it is this part of appellant's case which presents the only difficult question for our consideration.

We do not feel justified, however, on the allegations of this bill, in reversing the order of the Circuit Court, sustaining a demurrer to it, for several reasons.

In the first place, the bill is manifestly founded on the idea of the unconstitutionality of these ordinances, and an injunction is asked to restrain defendants from interfering with the landing anywhere within the city limits of appellant's boats, and in general from enforcing the obnoxious ordinances. There is, it is true, a prayer to restrain them from the collection of all excessive taxes while their boats are landing within the corporate limits; but what is excessive or what is reasonable is not shown, and, as we have already said, the money collected is not taxes in any sense whatever.

In the next place, the bill does not show how or why the sums paid for the use of the wharf, or for landing at other places, is excessive. The one reason for so charging which is given is evidently fallacious; namely, that the town has already raised enough money from the use of the wharf to pay for its construction and preservation.

The compensation which either the city or private owner of a wharf is entitled to receive is not to be based exclusively on a reimbursement of the cost of the wharf, and no such criterion can govern in the matter.

The ordinance establishing these rates and penalties is given in the bill, and has been copied in this opinion. It is by no means apparent that they are excessive. When it is considered that the wharf needs constant repair and care; that the compensation of a wharfmaster, who must be always ready to locate the vessels and collect the charges, is to be paid; and that the character and extent of the improvements are not shown, it would seem that something more than characterizing those rates as excessive is needed to invoke the restraining power of a court of equity. It is not alleged that they are oppressive, or an abuse of the power confided to the trustees. No statement is made of what would be reasonable in thep remises, and, consistently with the bill, the charge may be so little in excess of a just compensation as not to call for equitable relief.

There is no hindrance to trying this question in an action at law, where the verdict of a jury or the judgment of the court in one or two cases would establish what is reasonable under the circumstances; and this being once established by the appropriate tribunal, the court of equity could restrain the excess.

We concur with the circuit judge, that no such case of oppressive use or clear abuse of the power properly conferred on the trustees in regard to wharfage charges is alleged by this bill as to justify the interposition of a court of equity.

Decree affirmed.


text: Talk:Packet Company v. Catlettsburg/Opinion of the Court


text: Page:The Works of J. W. von Goethe, Volume 10.djvu/231


text:
Packing Company Cases

THE first case is an appeal from the Circuit Court of the United States for the Northern District of Illinois, and the second and third are appeals from the Circuit Court of the United States for the Southern District of Illinois.

By stipulation of the parties these cases were argued together as one case.

The bills of complaint were filed by the Wilson Packing Company, Arthur A. Libbey, Archibald McNeil, and Charles P. Libbey, and they charge the Chicago Packing and Provision Company, the St. Louis Beef-Canning Company, and the other defendants with the infringement of several resissued letters-patent of the United States, of which the complainants are the assignees and owners.

Only two of these letters are relied on. First, reissued letters-patent No. 6370, granted to William J. Wilson, dated April 6, 1875, upon an application filed April 2, 1875, 'for improvements in processes for preserving and packing cooked meat;' and, second, reissued letters-patent No. 7923, granted to John A. Wilson, dated Oct. 23, 1877, upon an application filed Oct. 15, 1877, for 'improvement in sheet-metal cases.' The bills were dismissed on final hearing, and the complainants appealed.

The original patent of William J. Wilson bears dated March 31, 1874. The specification is as follows:--

'Be it known that I, Wm. J. Wilson, of Chicago, in the county of Cook, and State of Illinois, have invented certain new and useful improvements in processes for preserving and packing cooked meats, and I do hereby declare that the following is a full, clear, and exact description thereof.

'The nature of my invention consists in a process for packing cooked meats for transportation in a compressed form, while heated with cooking, into an air-tight package, so as to preserve the meat in its integrity and retain all the natural juices and nutritious qualities of the meat.

'In carrying out my invention, the meat is first cooked thoroughly at a temperature of 212° Fahrenheit, so that all the bone and gristle can be removed, and the meat yet retain its natural grain and integrity. The meat is then in proper condition for eating, and is wholesome and palatable. A measured quantity of this cooked meat is then, while yet warm with cooking, pressed by any suitable apparatus into a previously prepared box or case, with sufficient force to remove the air and all superfluous moisture, and make the meat form a solid cake. The box or case is then closed air-tight upon the meat.

'The meat is thus packed and compressed in its natural state, that is, without disintegration or desiccation,-and it retains all the juices and nutritious qualities of the meat, the compression only removing the superfluous moisture. The meat thus put up is available at all times, even when cooking is impracticable, as it is already cooked before it is packed. It is more economical, as it is compressed pressed and reduced in weight one-half from the uncooked weight, being free from bone and gristle, and put up in a compact, portable shape for transportation, rendering the usual expensive cooperage unnecessary. Besides this, there is a great saving in the cost of transportation. A barrel containing two hundred pounds uncooked meat weighs, gross, three hundred and twenty pounds, meat, salt, brine, and barrel, while by may process it would weigh only one hundred and ten pounds, gross, making a saving in cost of freight alone of nearly two-thirds.

'The box or case may be made of wood or metal, or both combined, of any suitable form or shape, and of any desired dimensions.'

The claim is thus stated:--

1. The within-described process for packing cooked meats for transportation, by compressing the same into an air-tight package, so as to preserve the meat in its integrity, and retain all the natural juices and nutritious qualities of the meat, substantially as set forth.

'2. As a new article of merchandise, cooked meat put up in solid form, in its natural state, without disintegration or desiccation, in hermetically sealed packages, as set forth.'

The differences between the specification and claim of the reissued and those of the original patent of William J. Wilson are these: First, the second clause of the specification of the reissued patent omits the words while heated with cooking,' contained in the corresponding clause of the original; second, 'preferably in the third clause of the specification is inserted before while yet warm with cooking;' third, the first claim of the reissued patent omits while heated with cooking,' contained in the first claim of the original patent. In all other respects the specifications and claims are identical. Therefore his patents are the same, except that the reissue covers the process of packing the meat cold if preferred, while the original requires that it shall be packed while warm with cooking.

There is nothing in either patent in regard to the boiling or to any preliminary corning or curing of the meat.

On Oct. 26, 1880, while the cases were pending below, and after the testimony-in-chief of the defendants had been taken, the patentee and the complainants filed in the Patent Office a disclaimer of the word 'preferably' where inserted in the specification of the reissued patent, and also of any process described and claimed by which meat in any other than a warm or heated condition is to be compressed into the packages.

On the same day they filed a disclaimer of any interpretation or legal construction of the specification of the reissued patent broader than is conveyed by the words, 'the meat is first cooked thoroughly by boiling it in water, so that all the bone and gristle can be removed and the meat yet retain its natural grain and integrity.'

The claim was thus restored to what it was originally, except in the original patent it is limited by the second disclaimer to the packing of meat cooked by boiling. As amended by the disclaimers the claim of the reissued patent is as follows:-- First, The within-described process of packing, for transportation, meats cooked by boiling, by compressing the same while heated with cooking into an air-tight package, so as to preserve the meat in its integrity, and retain the natural juices and nutritious qualities of the same.

'Second, As a new article of manufacture, meat cooked by boiling, put up while heated with cooking, so as to form a solid cake in the package in its natural state, without disintegration or desiccation, in hermetically sealed packages, as set forth.'

It will be seen that the invention, after the disclaimers were made, is a process consisting of the following elements:--

1. The thorough cooking of the meat by boiling in water at a temperature of 212° Fahrenheit, and the removing of the bone and gristle.

2. The pressing of the meat while warm with cooking into a box or case with sufficient force to remove the air and superfluous moisture, so as to make the meat form a solid cake.

3. The closing of the box or case air-tight upon the meat.

It also covers the product of this process as described in the second claim.

The defence sets up want of novelty, and avers that the process described in h e reissued letters-patent of William J. Wilson is also described in prior English, French, and American patents, which are specified, and that it was practised by many persons whose names and residences are given, at various dates prior to his application.

The specification in John A. Wilson's letters-patent declares that the 'invention relates to hermetically sealed cans used in packing meats or other articles, and it consists in a pyramidalshaped can having rounded corners, and both ends slightly flaring to form shoulders against which the head or end pieces rest.

Figure 1 is a perspective view of the can. Figure 2 is a transverse vertical section of the same, reversed.

'a represents the body of my can made in the form of a truncated pyramid with rounded corners, and with any desired number of sides, though I prefer to make it with four sides. Both ends of the body are made slightly flaring so as to form interior shoulders of offsets a, against which the heads B and C are to rest. The edges of these heads are turned outward, as shown, a, b, and the flaring edge d of the end of the can is turned over the flange b, and the three thicknesses of metal pressed together by machinery, with or without solder, so as to make air-tight joints.'

'In packing cooked meats it is done by means of a plunger through an aperture in the large head B, which opening is afterwards hermetically sealed by means of a cap or plate D.

'The can is to be opened at the larger end at or near the shoulder a by means of a suitable can-opener, so that when the can is reversed a slight tap on the smaller head C will cause the solidly packed meat to slide out in one piece, so as to be readily sliced as desired.'

The claims which are in controversy in this case are the first and third, which are as follows:--

'A can for packing food, hermetically sealed, and constructed of pyramidal form, with rounded corners, and offset ends to support the heads, said heads being secured as shown and described.'

'3. An improved article of manufacture, solid meat compressed and secured within a pyramidal case or can, so that said can forms a solid mould for the meat, and permits its discharge as a solid cake, substantially as described.'

The cases were argued by Mr. William Henry Clifford and Mr. John N. Jewett for the appellants, and by Mr. Lewis L. Coburn and Mr. John W. Noble for the appellees.

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

title: Packing Company Cases


text: Talk:Packing Company Cases

title: Talk:Packing Company Cases


text:
Packing Company Cases/Opinion of the Court

The patent granted to William J. Wilson does not specify what kind of box or case was required, nor what kind of meat was to be used in its processes, whether corned or fresh, nor in what manner or by what process it was to be compacted in the case or box, provided sufficient force was used to remove the air and all superfluous moisture and make the meat form a solid cake, nor the degree of warmth necessary in the meat when it was put in the case or box. Neither does it state the methody by which the case is to be sealed up. It is simply required to be 'closed air-tight upon the meat,' the air having first been excluded from the case by cramming the latter full of meat.

The patent, therefore, apparently covers only the process of cooking meat by boiling, and while it is still warm pressing it compactly in cases and sealing it up air-tight.

The second disclaimer of Wilson is a substantial admission that his patent only covers the process in which the boiling of the meat is one of the elements. That is to say, any one may pack cooked meat for transportation by compressing it while heated with cooking into air-tight hermetically sealed packages, so as to preserve it in its integrity and retain all its natural juices and nutritious qualities, substantially as set forth in the patent, and not infringe the patent, provided he does not cook the meat by boiling. If any other method of cooking the meat should be adopted, there would be no infringement.

The patentee and the complainants, it appears, were indc ed to make this disclaimer by the evidence introduced by the defendants in this case, especially the patent of A. S. Lyman, dated June 22, 1869, 'for an improved mode of preparing and pressing roast meat in a condensed and concentrated form,' and it amounts to an admission that they could not sustain the process covered by their patent, except as applied to boiled meats.

We are clearly of opinion that a change in the mode of cooking the meat from broiling, roasting, or steaming to boiling, all the other parts of the process remaining unchanged, cannot be called invention, and does not entitle the party who suggests the change to a patent for the process. 'All improvement is not invention, and entitled to protection as such. Thus to entitle it, it ought to be the product of some exercise of the inventive faculties, and it must involve something more than what is obvious to persons skilled in the art.' Pearce v. Mulford, 102 U.S. 112. See also Rubber-Tip Pencil Company v. Howard, 20 Wall. 498; Hotchkiss v. Greenwood, 11 How. 248; Stimpson v. Woodman, 10 Wall. 117.

If meat cooked by roasting or steaming, and put up in a given mode, formed a valuable article of commerce, the cooking of the meat in other ways, as, for instance, by boiling, would naturally occur to any one engaged in the business of packing such food for the market.

But we think there is nothing new in the process covered by the patent under consideration. Clearly, all its separate elements are old and well known, and have been long used. This is not controverted. The evidence shows that the process of boiling meat, packing it while warm in cans, and sealing it air-tight, had long been used before the original application of Wilson. There is, it is true, much conflict in the evidence, but, taken all together, it leaves no doubt in our minds that the process of cooking meat, lobsters, and other articles of food by boiling, and, while warm from the cooking, compacting them in cans, which are then sealed up air-tight, was practised in many places and for many years before his application.

Complainants, however, insist that there are two elements in their process which, taken in connection with the others above mentioned, form a combination never used before the date of his patent.

The first of these is the subjecting of the cases, after they are packed and sealed air-tight, to what is known as the Appert process. This consists of placing in hot water the cans, after they have been filled and sealed up, and thereby heating them. They are then removed and punctured, and the heated air and gases in the cans are allowed to escape. The puncture is immediately closed by a drop of solder.

The contention is that all this is made a part of the process covered by the Wilson patent, by the description of the new article of merchandise covered by the second claim as 'cooked meat' 'in hermetically sealed packages.' It is insisted that the term 'hermetically sealed packages' implies amoung these dealing in canned goods, that the packages have been subjected to the Appert process.

We think that this is an unwarrantable stretch of the meaning of that claim. The article of merchandise which it covers is produced by the process disclosed by the specification and first claim. The second claim expressly states that it covers cooked meat put up in solid form, &c., 'in hermetically sealed packages, as set forth.'

Recurring to the specification and first claim, we are not left in doubt about what, as there set forth, is the process of sealing the cases or cans hermetically. The invention is declared to consist in a process for packing cooked meats into an air-tight package. The method of doing this is thus described: 'A measured quantity of this cooked meat is, while yet warm with cooking, pressed by any suitable apparatus into a previously prepared box or case with sufficient force to remove the air and all superfluous moisture and make the meat form a solid cake. The box or case is then closed air-tigt upon the meat.' The process is simply to exclude the air from the case by filling it compactly with cooked meat still warm, so that the cover, when applied, will rest on the meat, and then closing the case by fitting on the cover air-tight.

There is no suggestion here of anything further to be done to make the package a hermetically sealed one. The process described leaves it hermetically sealed. There is no hint that the Appert process is to be subsequently applied as a part of the process covered by the patent. On the contrary, that idea is excluded by the terms of the second claim, 'hermetically sealed, as set forth.'

It is further contended by the appellants that the process disclosed by the patent includes the cooking of the meat to be canned by plunging it into water already heated to the boiling-point. That is, the process of cooking is commenced by placing the meat in water already heated up to 212° Fahrenheit. By this method of cooking, it is said that the meat is preserved in its integrity, and all its natural juices and nutritious qualities are retained.

We think that the plan of beginning this process of cooking, by putting the meat in water already heated to the boiling-point, is not set forth in the specification or claims. The conditions that they prescribe would just as well be filled by placing the meat in cold water which is then heated to the boiling-point, and allowing the meat to remain in it until cooked thoroughly. No person, on reading them, could extract the idea that there was any advantage to be gained by heating the water to the boiling-point before placing the meat in it to be cooked, or that any such method was in the mind of the inventor. This part of the process is clearly an afterthought, and not intended by him to be covered by this patent when he applied for it. It is evident that the part now under consideration is nowhere described in the specification in full, clear, and exact terms, as required by law. On the contrary, it is not described at all.

The Appert process, and the cooking of meats by plunging them into water already heated to the boiling-point, may be of great advantage to the canned meats put up by the complainants, and their alleged superiority to the products of other parties may be attributed to these practices. But the trouble with complainants' case is that these elements are not included in the process disclosed by the patent which they allege is infringed by the defendants.

Out conclusion is, therefore, that there is nothing new in the process described in the patent. All the elements of the process are old. They are merely aggregated, and the aggregation brings out no new product, nor does it bring out any old product in a cheaper or otherwise more advantageous way. This disposes of the first claim of the patent under consideration. If that claim cannot stand, it follows that the second claim, which is for the product made by the employment of the process described in the first claim, is also invalid.

We are of opinion, therefore, that the patent is void for want of invention and for want of novelty in the process described therein.

We shall next consider that branch of the case which rests on the letters-patent to John A. Wilson for improvements in metallic cans for containing cooked meats.

The defences set up to this branch of complainants' case are, that the devices covered by the patent are not new, and that the defendants do not infringe.

The evidence clearly shows that none of the defendants use cans 'with offset ends to support the heads, said heads being secured as shown and described' in the patent. The cans which they use are made by turning a flange of the head down over the outside of the shell of the can, and fastening the head in place with solder. This method of fastening the heads and bottoms of the cans was practised by Gibbie and Perl before the date of Wilson's application for his patent. It was also described in the fifth addition of the French patent of Emile Peltier, dated April 1, 1859.

All, therefore, that is left to consider is whether the shape of the can described in the patent is new, and whether the defendants use it.

The shape of the can described in the patent is pyramidal, with round corners, and with four or more sides.

It is admitted on the record by counsel for the complainants that, prior to the date of the Wilson patents, conical tin cans were made and used for canning alimentary substances, and sealed air-tight.

If it be conceded that the change of a conical can to a pyramidal can, with rounded corners, involves invention, the complainants are met with distinct and unequivocal evidence that cans used for containing preserved food, and closed air-tight, having four or more sides and pyramidal in form, with rounded corners, were mentioned in the fifth addition to the patent of Emile Peltier, before referred to, and that the machinery for making them was therein described.

The cans used by the defendant the St. Louis Beef-Packing Company, and by the defendants Robert D. Hunter and others, and the Chicago Packing and Provision Company, are all included in the descriptions of the Peltier patent. The defence of want of novelty set up by the defendants against the first claim of the patent must therefore prevail.

What has been said leaves nothing for the third claim of the patent to rest on.

There is nothing new either in the shape, construction, or material of his cans. There is in the record abundant evidence that, long before the date of his patent, cooked meat was packed in cans, so that they served as a mould for the meat, and the meat formed a solid cake. The use of a pyramidal can, which was old, for the purpose of receiving the meat cake, which was also old, involved no invention.

The use of vessels with flaring sides, as receptacles and moulds for edible substances, is as old as the art of cookery.

Our conclusion is that both the first and third claims of the patent are void for want of novelty.

The result of the views expressed is that the action of the court below dismissing the bills of complaint was right.

Decrees affirmed.

NOTE.-Packing Company v. Clapp, appeal from the Circuit Court of the United States for the Northern District of Illinois, was argued at the same time with the cases disposed of in the foregoing opinion, and by the same counsel. It involved the validity of both claims of the reissued patent of William J. Wilson, and the first and third claims of the reissued patent of John A. Wilson. Upon these questions the opinions of the judges of the court below were divided, and a decree dismissing the bill was thereupon entered in accordance with the opinion of the presiding judge.

MR. JUSTICE WOODS, in giving the opinion of the court, remarked, that the views expressed in the foregoing cases disposed of this case.

Decree affirmed.


text:
Page:Observations on Man 1834.djvu/70

notice in the Introduction, that those ideas which resemble sensations were called ideas of sensation; and also that they might be called simple ideas, in respect of the intellectual ones which are formed from them, and of whose very essence it is to be complex. But the ideas of sensation are not entirely simple, since they must consist of parts both co-existent and successive, as the generating sensations themselves do.

Now, that the simple ideas of sensation are thus generated, agreeably to the proposition, appears, because the most vivid of these ideas are those where the corresponding sensations are most vigorously impressed, or most frequently renewed; whereas, if the sensation be faint, or uncommon, the generated idea is also faint in proportion, and, in extreme cases, evanescent and imperceptible. The exact observance of the order of place in visible ideas, and of the order of time in audible ones, may likewise serve to shew, that these ideas are copies and offsprings of the impressions made on the eye and ear, in which the same orders were observed respectively. And though it happens, that trains of visible and audible ideas are presented in sallies of the fancy, and in dreams, in which the order of time and place is different from that of any former impressions, yet the small component parts of these trains are copies of former impressions; and reasons may be given for the varieties of their compositions.

It is also to be observed, that this proposition bears a great resemblance to the third; and that, by this resemblance, they somewhat confirm and illustrate one another. According to the third proposition, sensations remain for a short time after the impression is removed; and these remaining sensations grow feebler and feebler, till they vanish. They are therefore, in some part of their declension, of about the same strength with ideas, and in their first state, are intermediate between sensations and ideas. And it seems reasonable to expect, that, if a single sensation can leave a perceptible effect, trace, or vestige, for a short time, a sufficient repetition of a sensation may leave a perceptible effect of the same kind, but of a more permanent nature, i.e. an idea, which shall recur occasionally, at long distances of time, from the impression of the corresponding sensation, and vice versâ. As to the occasions and causes, which

title: Page:Observations on Man 1834.djvu/70


text: Talk:Packing Company Cases/Opinion of the Court


text:
Corbin v. Van Brunt

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

The case is fully stated in the opinion of the court.

Mr. Randall Hanger for the plaintiffs in error.

Mr. J. J. McElhone and Mr. Joseph K. McKammon for the defendants in error.

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

title: Corbin v. Van Brunt


text: Talk:Corbin v. Van Brunt

title: Talk:Corbin v. Van Brunt


text:
Corbin v. Van Brunt/Opinion of the Court

This was a suit begun in a State court of New York by the Van Brunts, defendants in error, citizens of New York, against Corbin, Dow, and Burnap, also citizens of New York, the New York and Manhattan Beach Railway Company, a New York corporation, Keefer, a citizen of Ohio, and McKinnie, a citizen of Indiana, to recover the possession of certain lands, and damages for the detention thereof. The complaint alleges title in the Van Brunts, and an unlawful withholding of possession by all the defendants, who are now plaintiffs in error. Each of the defendants answered separately. The answer of Dow is a general denial of all the allegations of the complaint. The other defendants deny the title of the Van Brunts, and allege that the railwa company is in possession. The railway company, Keefer, McKinnie, and Burnap set up title and seisin in fee in the company, and deny explicitly that either Keefer, McKinnie, or Burnap is in possession. After the answers were all in, the defendants united in a petition for the removal of the suit to the Circuit Court of the United States for the proper district, on the ground 'that there is a controversy herein which is wholly between citizens of different States, and which can be fully determined as between them.'

The suit having been docketed in the Circuit Court, the Van Brunts moved to remand. The motion was granted, and from the order to that effect this writ of error was brought.

The real controversy is about the right to the possession of the land in dispute. So far as the title is concerned, it is apparent from the pleadings that citizens of New York are the only parties interested. They occupy both sides of that part of the controversy. The citizen of Ohio and the citizen of Indiana claim for themselves neither title nor possession. It is true that, as the case stands, if the Van Brunts establish their title against the other defendants, and it appears that Keefer and McKinnie were actually in possession and wrongfully kept the rightful owners out, there may be a recovery against them jointly with the railway company of damages for the detention. But there can be none separately, because the company admits a possession which, if the Van Brunts have title, cannot be maintained. There is neither in the complaint nor the answers any claim of separate right, either to the possession or the property. The whole case depends on the question of title between the Van Brunts on one side and the New York defendants on the other. This controversy was not removable. That of the other defendants is a mere adjunct of the principal dispute. It cannot exist separately.

The case is, therefore, within the principle of Removal Cases, 100 U.S. 457, decided after the order now under review was made, Blake v. McKim, 103 id. 336, and Hyde v. Ruble, 104 id. 407. In no just sense can it be said that the pleadings present separate controversies, such as admit of separate and distinct trials. If they do not, there could be no removal under the second clause of the act of March 3, 1875, c. 137, any more than under the first.

Affirmed.


text: Talk:Corbin v. Van Brunt/Opinion of the Court


text:
Ex Parte Hoard

PETITION for a mandamus.

The case is stated in the opinion of the court.

Mr. J. Holdsworth Gordon for the petitioners.

Mr. William J. Robertson, contra.

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

title: Ex Parte Hoard


text: Talk:Ex Parte Hoard

title: Talk:Ex Parte Hoard


text:
Ex Parte Hoard/Opinion of the Court

The Chesapeake and Ohio Railroad Company began a suit in a State court of West Virginia to appropriate lands for the use of its road. To this suit the present petitioners, with others, were parties. The company, at a certain stage of the proceedings, filed a petition under the act of March 3, 1875, c. 137, for the removal of the suit to the District Court of the United States for the District of West Virginia, having Circuit Court powers. After the petition was filed and security given according to the requirements of the law, a copy of the record of the suit in the State court was filed in the District Court, and the case docketed there. This having been done, the present petitioners moved the District Court to remand the cause, and strike it from the docket, as to them and each of them. The motion, having been argued and considered, was denied. The petitioners now ask this court for a writ of mandamus requiring the District Court to grant their motion.

Before the act of 1875, it was held, in Insurance Company v. Comstock (16 Wall. 258), followed in Railroad Company v. Wiswall (23 id. 507), that if a Circuit Court refused to take jurisdiction of a suit which had been properly removed, the remedy was by mandamus from this court 'to compel the Circuit Court to proceed to  final judgment or decree,' and not by writ of error or appeal. This was on the authority of Ex parte Bradstreet (7 Pet. 633), in which Mr. Chief Justice Marshall delivered the opinion. No case can be found, however, in which a mandamus has been used to compel a court to remand a cause after it has once refused a motion to that effect. The distinction is obvious. An order remanding a cause is not a final judgment or decree, from which ordinarily an appeal or a writ of error can be taken; and in Ex parte Bradstreet it was stated, as the reason for allowing the mandamus, 'that every party has a right to the judgment of this court in a suit brought by him in one of the inferior courts of the United States, provided the value of the matter in dispute exceeds the sum or value of two thousand dollars,' now, of course, five thousand. If the cause be retained, it may go to final judgment or decree, and the reason assigned for the mandamus in case of dismissal does not exist. If it be improperly retained and the objection presented on the record, the question may be brought here for review after final judgment, if the amount involved is sufficient to give us jurisdiction. We so held at this term in Railroad Company v. Koontz, 104 U.S. 5. It is of no importance that the value of the matter in dispute may be less than $5,000. Jurisdiction has been given to the Circuit Court to determine whether the cause is one that ought to be remanded. The act of 1875 has given an appeal or a writ of error to this court for the review of orders to remand, without regard to the amount involved. Babbitt v. Clark, 103 id. 606. The same remedy has not been given if the cause is retained. It rests with Congress to determine whether a cause shall be reviewed or not. If no power of review is given, the judgment of the court having jurisdiction to decide is final. Ex parte Ferry Company, 104 id. 519. It is an elementary principle that a mandamus cannot be used to perform the office of an appeal or a writ of error. Ex parte Loring, 94 id. 418.

Without determining, therefore, whether the case was properly removed or not, the writ is

Denied.

title: Ex Parte Hoard/Opinion of the Court


text: Talk:Ex Parte Hoard/Opinion of the Court


text:
Loom Company v. Higgins

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

The facts are stated in the opinion of the court.

Mr. Edward N. Dickerson for appellant.

Mr. George Gifford and Mr. William M. Evarts for the appellees.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Loom Company v. Higgins


text: Talk:Loom Company v. Higgins

title: Talk:Loom Company v. Higgins