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Dirst v. Morris/Opinion of the Court

We think that there was no error in admitting in evidence the record of the foreclosure suit, whether Breese was served with the subpoena or not. If he was not served, and could show that fact, he was not bound by the decree. But the decree and sale formed a link in the plaintiff's chain of title from Russell, and at this stage of the cause the deed from Russell to Breese had not been given in evidence. So far as yet appeared, the evidence was not only admissible, but effective to transfer the title. But it was admissible in any view, for it tended to show title from a party formerly seized, and the plaintiff had a right to exhibit it, subject to such decision with regard to its effect as might become necessary after all the evidence was in.

The same remarks apply to the admission of the deed from the Solicitor of the Treasury to the plaintiff's grantor.

The only other alleged error necessary to be noticed is the ruling of the court at the close of the trial.

The particular reason why, or ground on which the court decided that the plaintiff was entitled to recover, notwithstanding the possession taken by the defendant, and found the issues generally in the plaintiff's favor, is not specified. The court was exercising the functions of both court and jury, and whether, as matter of fact, it regarded the proof sufficient to show that Breese had been served with process in the foreclosure suit, or whether, as matter of law, it regarded that fact as not material, or what other view of the case it may have taken, does not appear, and therefore no error can be asserted in the decision. This court, sitting as a court of error, cannot pass, as it does in equity appeals, upon the weight or sufficiency of the evidence; and there was no special finding of the facts. Had there been a jury, the defendant might have called upon the court for instructions, and thus raised the questions of law which he deemed material. Or, had the law, which authorizes the waiver of a jury, allowed the parties to require a special finding of the facts, then the legal questions could have been raised and presented here upon such findings as upon a special verdict. But, as the law stands, if a jury is waived and the court chooses to find generally for one side or the other, the losing party has no redress on error, except for the wrongful admission or rejection of evidence.

However, as there was no proof that the government agents, when the mortgage was given, had any notice of Breese's unrecorded deed, and as the mortgage in such case would have the superior efficacy, and would entitle the mortgagee or his assigns to possession of the land on nonpayment of the money at maturity, we do not see on what possible ground the defendant could have claimed to succeed.

No error appearing on the record, the judgment of the court below is

AFFIRMED.

At the same time with the preceding case was heard another from the same Circuit Court, and similar to it in all respects, with, however, one additional feature. It was the case of

title: Dirst v. Morris/Opinion of the Court


text: Talk:Dirst v. Morris/Opinion of the Court

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


text:
Collins v. Riggs

IN this case, Riggs had brought ejectment in the court below against Collins to recover a lot, one of the several ones mentioned in the preceding case as having been mortgaged by Russell to the United States, and bought by Corcoran from the United States after the foreclosure by the government of their mortgage and the purchase in by them of all the several lots included in it. Riggs was the grantee of Corcoran.

The lot in controversy in this case, like that in controversy in the preceding case, had been conveyed previously to the mortgage, by a deed not put on record, to Breese.

On the trial, the defendant made the same objections to Riggs's title, that in the preceding case he had made to Morris's; to wit, that Breese, as grantee of Russell, of the lot, prior to the date of the mortgage to the United States, and so owner of the equity of redemption, had not been brought into the foreclosure suit; and assuming this to be true the defendant inferred and assumed that the mortgage was still, therefore, in existence. He then offered to prove that during the pendency of the present suit in ejectment he had tendered to Riggs the amount for which this particular lot now in controversy had been struck off at the marshal's sale, together with the taxes, interest, and costs; informing the plaintiff at the time of this tender that he, the defendant, was willing to treat him, the plaintiff, as the equitable assignee of so much of the mortgage as had been paid at the sale for the land in controversy, and that he wished to redeem the said land, and that he, the defendant, made the tender for that purpose; which tender the plaintiff declined to receive; the defendant offering to prove, further, that the said sum of money was then paid into court as a tender to redeem the land in controversy from the mortgage.

The court below decided, simply, that the evidence as presented was not competent or sufficient to constitute a defence to the action, but upon what ground this decision was made did not appear.

Mr. B. C. Cook, for the plaintiff in error (iterating and enforcing, as to the other parts of the case, the arguments of Mr. Fuller, already presenced in the report of the preceding case) argued upon this new point that Breese not having been brought in, and the mortgage being so still in existence, Corcoran was but an assignee of part of it, and Riggs his assignee, nothing more; that the defendant could, therefore, properly tender payment of it; that the only question was as to amount; that as to this, Riggs's right in the mortgage was to secure only such a proportion of the whole as the value of this tract represented, which value or amount was shown by the marshal's sale; that this sum, with costs, taxes, and interest, had been tendered and was now in court.

Messrs. Carlisle and McPherson (a brief of Mr. Thomas Dent being filed on the same side) argued contra, that the defendant, by his tender, substantially confessed that he could not resist the mortgage, but that his willingness to liquidate it pro tanto, by showing a tender of a sum of money to the plaintiff some time after the commencement of the suit, was no valid tender, that the amount was insufficient, and that the whole mortgage-money should be tendered. Independently of this, that such an attempt to avoid an action of ejectment was unheard of; that after condition broken, the mortgagor's rights were purely equitable, and that he could obtain relief only in chancery.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Collins v. Riggs


text: Talk:Collins v. Riggs

title: Talk:Collins v. Riggs


text:
Collins v. Riggs/Opinion of the Court

It is clear that the criterion by which the amount tendered was gauged was incorrect. To redeem property which has been sold under a mortgage for less than the mortgage debt, it is not sufficient to tender the amount of the sale. The whole mortgage debt must be tendered or paid into court. The party offering to redeem proceeds upon the hypothesis that, as to him, the mortgage has never been foreclosed and is still in existence. Therefore he can only lift it by paying it. The money will be subject to distribution between the mortgagee and the purchaser, in equitable proportions, so as to reimburse the latter his purchase-money and pay the former the balance of his debt.

JUDGMENT AFFIRMED.

title: Collins v. Riggs/Opinion of the Court


text: Talk:Collins v. Riggs/Opinion of the Court


text:
United States v. Powell (81 U.S. 493)

ERROR to the Circuit Court for the Middle District of Tennessee; the case being this:

A statute of July 20th, 1868, requires that every person intending to engage in the business of a distiller shall give a bond with sureties, conditioned that the principals in the bond

'Shall faithfully comply with all the provisions of law in relation to the duties and business of distillers.'

The statute also enacts:

'SECTION 15. That every distiller shall provide at his own expense a warehouse, to be situated on and to constitute a part of his distillery premises, to be used only for the storage of distilled spirits of his own manufacture,. . . and such warehouse, when approved by the Commissioner of Internal Revenue, on report of the collector, is hereby declared to be a bonded warehouse of the United States, to be known as a distillery warehouse, and shall be under the direction and control of the collector of the district, and in charge of an internal revenue storekeeper assigned thereto by the Commissioner of Internal Revenue.'

'SECTION 52. Every storekeeper shall have charge of the warehouse to which he may be assigned, under the direction of the collector controlling the same, which warehouse shall be in the joint custody of such storekeeper and the proprietor thereof and kept securely locked, and shall at no time be unlocked and opened or remain open unless in the presence of such storekeeper or other person who may be designated to act for him as hereinafter provided. And no articles shall be received in or delivered from such warehouse except on an order or permit addressed to the storekeeper and signed by the collector having control of the warehouse.'

With this statute in force, two persons, Powell and Hildebrand, on the 1st December, 1868, gave a bond, with two other persons as sureties, conditioned in the already-quoted language of the statute 'faithfully to comply with all the provisions of law in relation to the business of distillers,' and entered at once on the business of distilling. They constructed warehouses for the storage of spirits of their own manufacture; of which storekeepers assigned by the Commissioner of the Internal Revenue, and to whom the government paid $4 wages per diem, took charge; taking such charge during Sundays as well as during other days of the week.

Subsequently to the date of the bond above mentioned, of 1st December, 1868; that is to say, on the 29th of March, 1869, Congress passed a joint resolution, thus:

'The proprietors of all internal revenue bonded warehouses shall reimburse the United States the expenses and salary of all storekeepers or other officers in charge of such warehouses.'

Subsequently, again, to the date of this joint resolution, that is to say, on the 29th of April following, the same distillers, with the former sureties, gave a second bond, conditioned in the same words as the first and in pursuance of the same statute with it-constructing warehouses, &c., as before, which were taken possession of by internal revenue storekeepers, &c.-all exactly as before.

The government having paid all these storekeepers, demanded of the distillers reimbursement for payments made for their services after the 29th of March, 1869, when the joint resolution of Congress was passed, including reimbursement for services rendered on Sundays. The distillers denied their obligation to pay for services on any day, under either bond, because:1st. The storekeepers had been selected, appointed, and put in charge by the government and not by them.

2d. The storehouses were not 'bonded warehouses,' in contemplation of law, but were known as 'distillery warehouses,' being attached to their distillery and constituting part of their distillery premises.

They denied, additionally, their obligation to reimburse the government for payments made to men for working on Sundays.

The government hereupon sued both principal and sureties on both bonds, when the matters above stated were set up by way of plea; the sureties pleading in addition that they were sureties only, and as to the bond of December, 1868 (the bond first given), that at the date thereof the government by law was bound to pay the storekeepers, and averring that the subsequently-passed joint resolution of 29th of March, 1869, if applicable to distillery warehouses at all, could not increase the responsibility of them, the said sureties.

The court below was of opinion that all these pleas, except that one which alleged that the distillery warehouses were not 'bonded warehouses,' were good, and charged the jury accordingly. From the judgment which followed, the United States brought the case here on error.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error:

1. The condition that the principals 'shall faithfully comply with all the provisions of law in relation to the duties and business of distillers,' is to be understood as embracing such provisions of law as may be in force during the period for which the bond is given, whether enacted before or after the execution of the bond. There is nothing in the language employed that restrains the condition to statutes in force when the bond is executed; the only limitation seems to be that the provisions of law, with which the principals are faithfully to comply, must relate to the duties and business of distillers. The undertaking is prospective and contemplates a continuing liability for the observance of the requirements of all provisions of that character which are or may be passed. In King v. Nichols, an action upon a sheriff's bond, in Ohio, under a statute requiring sheriffs to give bond, with sureties, 'conditioned for the faithful discharge of their respective duties,' it was held that this language was broad enough to embrace any duty that may have existed at the date of the bond, or that might have been imposed upon the officer by law during the term for which it was given.

2. That the condition of the second bond applies to provisions of law concerning the duties and business of distillers enacted subsequently to the date of that act, but prior to the execution of the bond, can admit of no doubt.

3. The joint resolution of March 29th, 1869, requiring proprietors of all internal revenue bonded warehouses to reimburse the United States the expenses and salary of all storekeepers in charge of such warehouses, clearly extends to distillers. The latter were bound to provide distillery warehouses in carrying on their business as distillers, and these warehouses are by the internal revenue laws declared to be 'bonded warehouses.'

From the nature of the duties of storekeepers for distillery warehouses, as prescribed by the act of July 20th, 1868-duties which embrace among other things the custody of the warehouse-the duties must be continuous throughout the entire term, Sundays included, as long as the storekeeper remains in office. Sunday is indeed obviously the say when his vigilance may be most required.

No counsel appeared for the defendants in error.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: United States v. Powell (81 U.S. 493)


text: Talk:United States v. Powell (81 U.S. 493)


text:
United States v. Powell (81 U.S. 493)/Opinion of the Court

Persons intending to engage in the business of a distiller are required to give notice in writing to the assessor of the district, stating their names and places of residence and the place or places where the business is to be carried on, and before proceeding with the business they are required to make and execute a bond in the form prescribed by the commissioner, with at least two sureties to be approved by the assessor of the district, conditioned that the principal shall faithfully comply with all the provisions of law in relation to the duties and business of distillers, and that he will pay all penalties incurred or fines imposed on him for a violation of any of the said provisions.

Pursuant to that requirement the two defendants first named in the declaration made and executed the two bonds therein described, conditioned in the very words of the seventh section of the act containing the requirement, as appears by the record.

Distillers are also required by the fifteenth section of the act to provide at their own expense a warehouse, situated on and to constitute a part of their distillery premises, to be used only for the storage of distilled spirits of their own manufacture; and the provision is that such warehouse, when approved by the commissioner, on report of the collector, shall be deemed to be a bonded warehouse of the United States and be known as a distillery warehouse, and that it shall be under the direction and control of the collector of the district and in charge of an internal revenue storekeeper assigned thereto by the commissioner.

Provision is also made by the joint resolution of the twenty-ninth of March, 1869, that the proprietors of all internal revenue bonded warehouses shall reimburse to the United States the expenses and salary of all storekeepers or other officers in charge of such warehouses, and that the same shall be paid into the treasury and accounted for like other public moneys.

Most of the material facts are either admitted or not controverted by the pleadings. It is conceded as follows: (1.) That the principal defendants engaged in the business of a distiller for the periods mentioned in the declaration. (2.) That they constructed warehouses for the storage of distilled spirits of their own manufacture. (3.) That the warehouses were in charge of internal revenue storekeepers assigned thereto by the commissioner. (4.) That the plaintiffs paid the per diem wages of the storekeepers, and that they demanded of the defendants to be reimbursed the amount so paid for that service, and that the defendants refused to pay as requested, and that the bonds described in the declaration were duly executed.

Payment being refused, the plaintiffs brought an action of debt to recover the amount. Service having been made the defendants appeared and pleaded as follows: (1.) Performance. (2.) That they were not bound to pay the wages of the storekeepers in charge of their distillery warehouse; that the storekeeper was an officer appointed and selected by the plaintiffs, and that he was placed by them in the distillery warehouse of the defendants, and that they, the plaintiffs, were bound to pay his per diem wages. (3.) That the warehouse attached to their distillery is known as a distillery warehouse and not as a bonded warehouse, as it constitutes a part of their distillery premises, and that the defendants are not bound to pay the wages of the storekeeper. (4.) That the plaintiffs have no right to be reimbursed for the wages they paid to the storekeeper for service rendered or work done on Sunday or the Lord's day. (5.) Superadded is also the separate plea of the sureties-that the plaintiffs at the time the first bond was executed were bound to pay the storekeeper in charge of the warehouse, and that the subsequent act, even if applicable to distillery warehouses, cannot change or alter their liability as sureties, nor can it increase their responsibility.

1. Performance certainly is not proved as matter of fact, as it is not pretended that the defendants have reimbursed the plaintiffs for any part of the amount which the latter paid to the storekeepers for their per diem wages while they were in charge of the defendants' distillery warehouses, which is all that need be remarked in respect to that defence.

2. Undoubtedly the storekeeper is an officer appointed and selected by the plaintiffs, but the question whether the defendants are bound to reimburse the plaintiffs the amount paid for their per diem wages while in charge of their distillery warehouses is a question of law depending upon the construction of the joint resolution to which reference has been made. Argument to show that the question must be answered in the affirmative, if the joint resolution is applicable to the case, is hardly necessary, as the language is explicit that the proprietors of all internal revenue bonded warehouses shall reimburse to the United States the expenses and salary of all storekeepers or other officers in charge of such warehouses.

3. Attempt is made to show that a distillery warehouse is not a bonded warehouse within the meaning of the joint resolution, but the proposition cannot be maintained, as the act of Congress provides that such a warehouse, when approved by the commissioner, on report of the collector, shall be deemed a bonded warehouse of the United States; and it matters not that the act provides that it shall be known as a distillery warehouse, as the requirement of the act is that it shall be under the direction and control of the collector of the district, and be in charge of an internal revenue storekeeper assigned thereto by the commissioner. Beyond all doubt, therefore, the internal revenue bonded warehouse referred to in the joint resolution includes the bonded warehouse known as the distillery warehouse described in the fifteenth section of the act imposing taxes on distilled spirits.

4. Suppose that it is so, still it is contended by the defendants that they are not bound by the first bond to reimburse the plaintiffs for the amount paid to the storekeeper for that service, because the bond was made and executed before the passage of the joint resolution.

It must be admitted that any substantial addition by law to the duties of the obligor of a bond, after the execution of the instrument, materially enlarging his liabilities, will not impose any additional responsibility upon his sureties, unless the words of the bond, by a fair and reasonable construction, bring such subsequently imposed duties within its provisions. Conceding that rule to be correct it becomes necessary to examine the recitals and condition of the bond first described in the declaration, as the question must depend very largely upon the construction of the language there employed. By the recital of the bond it appears that the principals therein named intended, on and after that date, to be engaged in the business of distillers within the fifth collection district of the State, and the condition of the bond is that they shall in all respects faithfully comply with all the provisions of law in relation to the duties and business of distillers, and that they shall pay all penalties incurred or fines imposed on them for a violation of any of the said provisions. Stronger language to signify an intention to stipulate that the principals in the bond should comply with duties subsequently imposed by law in relation to the business of a distiller could not well be employed, as the language of the bond is that they shall faithfully comply with all the provisions of law in relation to the duties and business of distillers, knowing as all the obligors did that Congress might at any time enact new provisions imposing new duties or vary those already imposed. Both parties, it must be assumed, knew that changes might be made in that behalf at any time, and the defendants must have understood that it never could have been intended that a new bond should be required with every modification made in relation to the duties and business in which the principals in the bond were about to engage. Where a person was elected sheriff and executed a bond to the county conditioned that he would well and faithfully in all things discharge the duties of the office during his continuance in the same by virtue of his said election, the Supreme Court of Ohio held that the language of the bond was broad enough, not only to embrace any duty imposed at the date of the bond but any also that might be imposed upon the officer by law during the term for which the bond was given. Bonds in such cases, as well as in cases like the one before the court, are required to secure the faithful discharge of the duties ordinarily imposed upon the principal obligor, without reference to the time when the law was passed imposing the duty, and where, as in this case, the language of the bond is sufficiently comprehensive to embrace duties subsequently imposed, of a character corresponding with those required at the date of the bond, the construction which gives a prospective as well as a retrospective operation to the condition of the bond may well be adopted as both reasonable and just to all concerned.

Exceptional cases may doubtless arise, as where the condition of the bond is, in terms, or by a fair and reasonable construction, limited to existing duties, or where the appointment is a temporary one, to expire at the end of the next session of the Senate. Different rules are applied in the case of a temporary appointment, as the commission is for a different tenure, and unless there is something in the act under which the first commission issued showing that it contemplated a permanent and continuing responsibility under laws subsequently passed, the rule is that the liability of sureties must be strictly confined to the duties created by the acts passed antecedent to the date of the bond.

Given, as the second bond was, subsequent to the passage of the joint resolution, the defence that the bond is not embraced in that provision is entirely without merit, and is accordingly overruled.

5. Reimbursement for services rendered or work done by the storekeepers, or for money paid for their per diem wages on Sunday or the Lord's day, it is insisted cannot be lawfully claimed because the law, it is said, did not contemplate their employment on that day.

Storekeepers, of the Kind, may be appointed by the Secretary of the Treasury, in such numbers as may be necessary, with such compensation, not exceeding five dollars per day, as shall be determined by the commissioner. They are required to take an oath faithfully to perform the duties of their office, and to give a bond to be approved by the commissioner for the faithful discharge of their duties, and they are to have charge of the warehouses to which they may be respectively assigned, under the direction of the collector controlling the same, which warehouse, it is provided, shall be in the joint custody of such storekeeper and the proprietor thereof; and the provision is that the warehouses shall be kept securely locked, and shall at no time be unlocked or opened, or remain open, unless in the presence of such storekeeper or other person who may be designated to act for him by the collector in case of absence from sickness or from any other cause. Safe custody of the articles deposited in the warehouse is one of the primary duties of the storekeeper, and it is clear that he is required to perform that duty on Sunday as well as on every ordinary working day of the week, as such custody is a work of necessity, and, therefore, is not unlawful, even in jurisdictions where worldly labor or business on the Lord's day is forbidden by law.

6. Sufficient has already been remarked to show that the defence set up in the separate plea filed by the sureties cannot be maintained, as the language employed in the conditions of the respective bonds is comprehensive enough to bring the case within the duty imposed upon the proprietors of internal revenue bonded warehouses by the joint resolution which requires such proprietors to reimburse the United States for the expenses and salary paid to such storekeepers or other officers in charge of such warehouses.

Diametrically opposite views were entertained by the presiding justice in the Circuit Court, and he accordingly instructed the jury that neither the distillers nor their sureties were liable to the plaintiffs under the first bond. (2.) That the reimbursement to the plaintiffs by the distillers of the salaries of storekeepers was not one of the duties of the distillers for which the second bond was given. (3.) That the plaintiffs could not recover the amount paid to the storekeepers for services performed by them on Sundays, as the law did not contemplate their employment on that day.

Under those instructions the jury returned their verdict for the defendants, and the plaintiffs excepted and removed the cause in this court. Having determined that the instructions were erroneous, it only remains to remark that the judgment must be

REVERSED, and the cause remanded with directions to issue a

NEW VENIRE.


text: Talk:United States v. Powell (81 U.S. 493)/Opinion of the Court


text:
Phoenix Insurance Company v. Hamilton

ERROR to the Circuit Court for the Northern District of Ohio; the case being thus:

Hamilton and Cook were partners in the grain commission business, at Toledo, Ohio, and kept their consignments of grain in store in an elevator at that place belonging to the Michigan Southern Railroad Company, whose servants had the entire charge and care of it. Hamilton retired from the firm in July, 1867, but no notice of the dissolution was given, and by common agreement Cook was allowed to carry on the business in the partnership name until the end of the year. During this term insurance to the amount of $10,000 was effected with the Phoenix Insurance Company of Brooklyn, through their agent, in the name of the firm, Hamilton & Cook, against loss or damage by fire on the 'grain in store, their own, or held by them in trust or on commission, or sold and not delivered,' this being the usual method of taking insurance among commission merchants in Toledo. Al loss occurred on the 21st of December, whilst the policy was running; and the insurance company declining to pay it, Hamilton & Cook sued them. The defence set up was:

1st. Want of insurable interest in Hamilton; and,

2d. Misrepresentation and concealment with regard to the interest.

The plaintiffs, on the trial, waived any claim for grain belonging to themselves individually, and asked a verdict but for the value of the grain which was received on commission; asking to recover this amount for the use and benefit of the owners.

At the request of the plaintiffs' counsel, the court charged that if no representations were made with regard to the individuals who composed the firm of Hamilton & Cook, there was no misrepresentation which could avoid the policy; and that if Hamilton & Cook had no actual care or custody of the grain, but that so far as regarded its preservation from fire, it was entirely in the control of the railroad company, and so understood by the company's agent when the policy was effected, the omission to inform the defendant of the agreement of dissolution could not be considered a concealment which would avoid the policy. Verdict and judgment went accordingly for the plaintiffs, and the case now came here on exceptions to the charge of the court.

Mr. A. C. Bradley, for the insurance company, plaintiff in error:

1. Cook, alone, at the date of the policy and of the fire, held the grain in question in trust or on commission. He alone was the bailee, and alone had an insurable interest. Hamilton had no custody, was no bailee, and had no insurable interest. No action, therefore, can be maintained; not a joint action, because the interest was sole, nor a sole action, because the policy was joint.

It is true, indeed, that a nominal partner is sometimes regarded as a real one. But he is only so regarded adversely and to subject him to the obligations of a partner. And this is but right. When a partner retires from a firm, still keeping his name before the public, he can mean nothing but to give to the firm a credit which it does not deserve. Here, Hamilton, whose name doubtless made the firm attractive, withdraws; leaving his name in order that business might be drawn to Cook. This was a deception. Such an act may subject a person to the liabilities of a partner; but surely should not give him a partner's benefits and advantages.

2. The policy was void for fraud. Hamilton and Cook had been partners under their joint names, and the firm name continued to be used by each of them from the time of the dissolution till the time of insurance, and afterwards. Every such use of that name was a representation that both persons still composed that firm. Such representation was untrue and of a material matter. Had Cook been alone held out to the world less insurance would have been needed. It was obviously Hamilton's name which made the firm attractive and brought business to it. Indeed, but for the prestige which Hamilton's name gave the firm, it does not appear that Cook would have had any business or needed any insurance. Then, again, if Hamilton, in addition to the name, had felt the care and exercised the natural vigilance of a partner, he might have prevented the destruction of the building. At all events, every untruth uttered with an intent to deceive others for the benefit of the party uttering it, or the benefit of his friends, is a fraud on all parties deceived. Here the company's agent issued the policy believing both Hamilton and Cook to be partners. They so represented themselves; herein committing a fraud on the company. That fraud vitiates the policy.

Mr. P. Phillips (a brief of Messrs. Waites, Bissell, and Gorill being filed), contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Phoenix Insurance Company v. Hamilton


text: Talk:Phoenix Insurance Company v. Hamilton


text:
Phoenix Insurance Company v. Hamilton/Opinion of the Court

The principal question is whether insurance can be effected in the name of a nominal partnership where the business is carried on by and for the use of one of the partners.

Hamilton was a nominal partner, held out to the world as a member of the firm by his own consent, and affected with every liability of a partner-to consignors, creditors, and all persons dealing with the concern. The plaintiffs contended that this was a sufficient interest to support the policy, at least, in a commission business where insurance was effected for the benefit of the real owners of the goods. It is objected that a nominal partner is only held such, adversely, for the purpose of subjecting him to liability as a partner, and not for the purpose of giving him the benefits and advantages of a partner. But whilst this is generally thue, the interest of a nominal partner in the liabilities of the firm is such as should entitle him, in the absence of any attempt to defraud, to join with the other members of the firm in effecting insurance on the property of the concern. As Chief Justice Jones remarked in De Forest v. Fulton Insurance Co., 'It does not always require either the legal title or beneficial interest in the property to entitle a party otherwise connected with it to effect a valid insurance upon it. A carrier may insure goods he contracts to convey, yet he has neither the legal title nor the beneficial interest in them, but he is responsible for their loss.'

But the case of a nominal partnership carried on for the benefit of one or more members of the firm scems to be still stronger. For it may be said that the legal interest in the business is in the firm, whilst the beneficial interest is in the member or members for whose use it is carried on. In the case before us, as to all the world except themselves, the legal interest of the business was in the firm of Hamilton & Cook, the beneficial interest in Cook alone. And as it is well settled that a trustee or agent may insure the property held in that capacity for the benefit of all concerned, there seems to be no valid reason why persons constituting a nominal partnership should not be competent to effect insurance as well as transact the other business in the partnership name. In this case the intimate connection of Hamilton with the business, and the fact that as between him and the consignors of the grain insured, the railroad company with whom it was stored, and all other persons dealing with it, he was actually a partner, and incurred all the responsibility and risk attaching to that relation, constituted, in our judgment, a sufficient basis of interest for effecting insurance in the name of the firm. The doctrine, established by a number of cases, that nominal partners are proper plaintiffs, as well as proper defendants, in actions by and against the firm, lends support to this view.

The case before us is an especially strong one, from the fact that the policy was effected mainly for the benefit of the owners of grain held by Hamilton & Cook on commission. The action was prosecuted solely for their benefit. The plaintiffs, on the trial, expressly waived any claim for grain belonging to themselves, individually, and asked a verdict only for the value of the grain which was received on commission, claiming to recover this amount for the use and benefit of the owners. The liberality with which policies of this character, issued to trustees and agents for the benefit of parties really interested, are sustained by the courts, is stated and illustrated in the case of The Insurance Company v. Chase, decided by this court in December Term, 1866. As looking in the same direction, we may refer to the cases in New York which decide that a sale by a retiring partner to his copartners of his interest in the firm, is not a breach of the condition that the policy shall be void if the property is conveyed without the consent of the insurance company.

The other ground of defence was, that there was misrepresentation and concealment, as to the interest, which vitiated the policy. It is laid down by this court in ''The Columbian Ins. Co. v. Lawrence'', that an applicant for insurance is bound to fair dealing with the underwriters, and, in his representations, should omit nothing which it is material for them to know; nothing which would probably influence the mind of the underwriter in forming or declining the contract. This doctrine is repeated in several subsequent cases, and is undoubtedly the well-established law. But its application will depend upon the circumstances of each case. Generally speaking it is undoubtedly true that any misrepresentation with regard to the ownership of the property insured will suffice to vitiate the policy. But policies are constantly applied for and granted on general stocks of goods, held in trust or on consignment for numerous and unknown parties. In such cases it is not expected, nor would it be possible, that the insurers should be informed as to the ownership. They are content to insure for the benefit of whom it may concern. Of course, an omission to disclose the ownership on such cases cannot be regarded as an improper concealment. In some cases it is important to the insurers to know who is interested in the property, in order that they may form a judgment as to the probable care which will be bestowed in its custody and preservation. In other cases this knowledge may be a matter of little importance. In the case before us the grain insured was in the sole custody and care of the railroad company, and the insurers were little concerned, as, in fact, their agent made no inquiry, who were the owners or interested therein; and no representation was made on the subject, farther than to make the application in the name of Hamilton & Cook, and to ask for a general insurance on the grain in the elevator, whether their own, or held by them in trust, or on commission, &c. Under the circumstances of the case we do not see that anything material for the insurers to know, or that would have had a bearing on taking the risk or fixing the premium, was concealed or withheld. On this subject the court, at the request of the plaintiffs' counsel, charged the jury that if no representations were made with regard to the individuals who composed the firm of Hamilton & Cook, there was no misrepresentation which could avoid the policy, and that if Hamilton & Cook had no actual care or custody of the grain, but that so far as regards its preservation from fire, it was entirely in the control of the railroad company, and so understood by the defendant's agent when the policy was effected, the omission to notify the defendant of the agreement of dissolution could not be considered a concealment which would avoid the policy. Under the circumstances of the case, we do not think there was any error in this charge.

JUDGMENT AFFIRMED.

Mr. Justice CLIFFORD dissented.


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


text: Gorham Company v. White

title: Gorham Company v. White


text: Talk:Gorham Company v. White

title: Talk:Gorham Company v. White


text:
Gorham Company v. White/Opinion of the Court

ERROR to the Circuit Court for the Southern District of New York; the case being thus:

The Patent Act of August 29th, 1842, enacts:

'That any citizen or citizens, &c., who by his, her, or their own industry, genius, efforts. and expense may have invented or produced any new and original design for a manufacture, whether of metal or other material or materials, or any new and original design for the printing of woollen, silk, cotton, or other fabrics, or any new and original design for a bust, statue, or bas relief, or composition in alto or basso relievo, or any new and original impression or ornament, or to be placed on any article of manufacture, the same being formed in marble or other material, or any new and useful pattern, or print, or picture to be either worked into or worked on, or printed, or painted, or cast, or otherwise fixed on any article of manufacture, or any new and original shape or configuration of any article of manufacture not known or used by others before his, her, or their invention or production thereof, and prior to the time of his, her, or their application for a patent therefor, and who shall desire to obtain an exclusive property or right therein to make, use, and sell, and vend the same or copies of the same to others, by them to be made, used, and sold, may make application in writing to the Commissioner of Patents expressing such desire, and the commissioner on due proceedings had may grant a patent therefor. The duration of said patent shall be seven years.'

A subsequent act, that of March 2d, 1861, re-enacts in substance the same things apparently, and makes some changes in the term of duration of the patent.

With these statutes in force, Gorham & Co., in July, 1861, obtained a patent for a new design for the handles of tablespoons and forks, which under the name of the 'cottage pattern' became extremely popular; the most successful plain pattern, indeed, that had been in the market for many years. The pattern is represented, further on, in the lefthand design on page 521. Gorham & Co. subsequently transferred their patent to the Gorham Manufacturing Company.

In the year 1867 one White obtained a patent for a design which he alleged to be original with him for the same things; the handles, namely, of forks and spoons; and in 1868 a patent for still another design. Both of his designs are shown on the page already mentioned, alongside of the cottage pattern and to its right hand on the page.

Manufacturing and selling quantities of spoons and forks of these last two patterns, White interfered largely with the interests of the Gorham Manufacturing Company, and that company accordingly filed a bill in the court below to enjoin his making and selling spoons and forks under either of his patents. The validity of the patent held by the Gorham Company was not denied, nor was it controverted that the defendant had sold spoons and forks which had upon them designs bearing some resemblance to the design described in the patent held by the company. But it was contended. that none of the designs on these articles thus sold were substantially the same as the design covered by the patent held by the company, and that they were independent of anything secured by that patent. The sole question, therefore, was one of fact. Had there been an infringement? Were the designs used by the defendant substantially the same as that owned by the complainants?

Much testimony upon the question of infringement was taken; the complainant producing witnesses sworn to by Mr. Tiffany, of the well-known firm of jewellers and silver smiths in New York, as representative men 'in the trade under consideration, unexceptionable in every respect.'

Mr. Cook, of the firm of Tiffany & Co., said:

'I should say that the patterns are substantially like one another. I think that an ordinary purchaser would be likely to take one for the other.'

E. W. Sperry, a manufacturer of forks and spoons for thirty-seven years:

'I should say that the pattern of White of 1867 was certainly calculated to deceive any one but an expert. Any person seeing one of the Gorham spoons or forks at one end of the table, and one of White's at the other end, could not tell the difference between them; not one man in fifty.'

Martin Smith, of Detroit, a merchant jeweller, dealing for ten years in silver spoons and forks:

'In my judgment, if the White pattern were placed in a store different from that in which they had before seen the cottage pattern, seven out of ten customers who buy silverware, would consider it the same pattern.'

Theodore Starr, of the Brooklyn firm of Starr & Marcus, merchant jewellers, eight years in business:

'The essential features I consider the same. The resemblance is such as would mislead ordinary purchasers.'

H. H. Hayden, of New York, engaged for several years in manufacturing and selling metal goods:

'The two designs are substantially alike. In my opinion they would mislead, and would be considered one and the same pattern by the trade; by the trade, I mean customers as well as manufacturers.'

Alfred Brabrook, agent of Reed & Barton, manufacturers at Taunton, Massachusetts, of Britannia metal and German silver plated ware:

'In many cases the resemblance would mislead ordinary purchasers.'

J. T. Bailey, head of the house of Bailey & Co., large dealers in jewelry and silver at Philadelphia:

'I don't think that an ordinary observer would notice any difference on a casual observation. But, to a person skilled in this business, of course there are some small differences. I mean to say, that should an ordinary observer come into my store and take up the two spoons, he would not notice any difference in them, unless desired to examine them critically.'

H. D. Morse, of the house of Crosby, Morse & Foss, jew ellers and venders of silver in Boston, and whose department had been to a good extent designing:

'They are substantially the same thing so far as appearance goes; substantially alike in regard to general effect, with a slight difference in outline. An ordinary observer would see no difference between them.'

James A. Hayden, the selling agent of Holmes, Booth & Haydens, manufacturers of spoons in New York:

'The similarity is so strong that it would not be detected without an examination more careful than is usually made by purchasers of such goods.'

Mr. C. L. Tiffany, head of the house of Tiffany & Co., aged 55, and dealing in forks and spoons for more tnan twenty-five years:

'I have no hesitation in saying they are substantially alike. I think the resemblance would mislead ordinary purchasers; and being asked I certainly might myself be misled by it, if not beforehand told of the difference and my attention particularly called to it.'Edward C. Moore, a member of the firm of Tiffany & Co., a designer:

'There is a substantial difference between the patterns, but the design of all is so nearly alike that ordinary purchasers would be led to mistake the one for the other. It seems to me that is what the pattern of White is made for.'

Newell Mason, carrying on jewelry business in Chicago and Milwaukee for twenty years at least:

'The patterns are substantially different, but ordinary purchasers, seeing them apart, would mistake one for the other. If the cottage pattern had acquired popularity in the market, White's would derive advantage from that fact.'

'Ordinary purchasers would be misled by the similarity between the cottage pattern and White's of 1867, but not on a second comparison. If an ordinary purchaser had not a sample of the cottage pattern before him, he would be apt to consider White's of 1867 to be the same with it.'

James Whitehouse, a designer in the employ of Tiffany & Co.:

'From my knowledge and experience in the business, I do not regard the designs of White as original, and think that they were suggested by the design of Gorham & Co.'

Morse, another of Tiffany & Co.'s designers:

'From my experience as a designer I should think that the designer of White's must have intended to imitate the effect in spirit of the provious design, and yet make a difference. If spoons and forks made after the cottage pattern had obtained a reputation and position in the trade, spoons and forks of White's pattern would find sale by reason of the popularity of the forks and spoons just mentioned. I should think they would be sold for the same thing.'

Mr. Henry B. Renwick, aged 52, residing in New York, whose principal occupation was the examination of machinery, inventions, and patents, and who during the last sixteen or seventeen years had frequently been examined as expert in the courts of the United States for various circuits:

'I have examined the spoons and forks made by White, and I have no doubt that they are in all respects substantially identical with the Gorham design. Respecting the design secured by White's patent of 1868, I have some little doubt, owing to the increased concavity of outline in the broad part or head of the handle; but still think the better opinion is that it is within the description and drawing of the Gorham patent.

'By the expressions 'substantially' like, I mean such an identity as would deceive me when going as a purchaser to ask for one spoon, if I should be shown another which was slightly different in minute points either of contour or ornamentation. In the present instance, if I had been shown the cottage patterns, at one end of a counter, and afterwards had been shown White's pattern of 1867, at the other end of the same counter, I should have taken both sets of exhibits to have been of the same design, and I did, in fact, take them so to be until I laid them side by side and compared them minutely.

'I do not think that every change either in contour or in ornamentation makes a substantial difference in the design. For instance, take one of Rogers's statuettes of soldiers, and I do not think the design would be substantially changed so as to evade his patent by substituting a rifle for a musket, or by taking the bayonet off the musket, supposing one existed in the design, or by changing boots for shoes, or vice vers a. Or in the case of one of his soldiers drinking, by substituting a round tub for a square trough, or a glass for a tin cup. In a design for a carpet I should think the design was substantially preserved if the main features of the figure were unaltered, and the minor portion were changed by such changes as the substitution of a ring of flowers for a ring of stars, or quatrefoil for a trefoil ornament, and other such changes. In the present instance, the contours of the plaintiff's articles and the articles manufactured by the defendant are not only substantially but almost identically the same. The Gorham articles and the articles manufactured by White all have a threaded or reeded pattern round the edges, all have a slight knob or boss at the point where there are small shoulders marking the dividing line between the stem and head of the handle, and all have knobbed ornaments near the extreme end of the handle and adjacent to the pointed projection which, in all of them, forms that end. There are, no doubt, minor differences; for instance, the Gorham spoon has two threads along the shank where the defendant's have only one, but that one is of nearly equal width with the two and gives the same effect. In the Gorham the knobbed ornament at the shoulders is connected with the outer thread, while in White's it is connected with the inner thread; but these knobbed ornaments in both are in the same place and have the same general effect; it requiring a very minute examination and actual comparison of the spoons side by side, as I am now making, to perceive and describe the distinction. In the Gorham spoons the knobbed ornaments on the inner reed are at the head of the spoon turned upwards and outwards. In White's they are turned downwards and inwards, and the reed is flattened out, but the substantial shape or contour at the end of the spoon, and the ornamentation thereof, by raised ornaments, partly connected and partly unconnected with the threading, is substantially the same in both. Now, I conceive the Gorham patent to be for a design, one element of which is the contour or shape of the handle, and the other the ornamentation thereof. The shapes of all the exhibits, as I have before stated, except that made under White's patent of 1868, are identical, and regarding it, as I have already stated, I think the better opinion is that it is within the line of substantial identity. It might deceive me, I think, in going from one store to another, but not if shown me in the same shop where I had just examined one of the Gorham spoons. With regard to the ornamentation, the substantial characteristics of the design described in the patent are that there shall be a threaded pattern around the edges of the handle, with a small knobbed ornamentation at the shoulders, as before stated; and also at the head of the handle, where it is finished by a pointed projection. I have already said that I find these substantial characteristics in White's spoons, and as I hold the views with regard to substantial identity and design which I have endeavored to express, I therefore state, as before, that the manufactures of White's are, without doubt, in my mind, substantially identical with the Gorham design, and that the better opinion is that the design in White's patent of 1868 is in the same category, although altered in degree of concavity at the head of the handle, as I have before stated.'

On the part of the defendant an equal number of witnesses were produced, including Henry Ball, the senior member of the well-known firm of Ball, Black & Co., New York City, a silversmith and jeweller, who had been in this business since 1832, and numerous other persons, die-sinkers, engravers, editors of scientifie publications, persons engaged in the inspection of designs, solicitors of patents, &c. All these testified, one after the other, and pretty nearly in the same words, that the designs were 'substantially different;' one witness that they were 'substantially different, both in shape and design.' Mr. Edward S. Renwick, especially, an expert, whose reputation for competency is well known, swore positively that the designs represented by all of the White's manufactures were substantially different from the Gorham design, and stated in detail the items of difference; as thus:

'In the Gorham design the stem of the handle, between the shoulders and the bowl, has a second thread upon it, which is parallel with and inside of the boundary thread. No such second thread is found in White's.'

He pointed out fifteen differences of this mechanical kind between the Gorham design and White's, patented in 1867, and sixteen differences between the Gorham design and that of White patented in 1868.

The court below considered that there was no infringement. It said:

'The question to be determined is, whether the designs of the White patents are or are not substantially the same as the design of the plaintiff's patent. Each design may properly be considered as composed of two elements, the outline which the handle presents to the eye when its broader face is looked at, and the ornamentation on such face. If the plaintiffs' design be compared with the White design of 1867, a general resemblance is found between such outlines in the two designs. In other words, if the ornamentation on the handle in the plaintiffs' design formed no part of such design, and such design were confined to the form of the outline before mentioned, it would be difficult to say that the plaintiffs' design and the White design of 1867 were not substantially identical. But the moment the ornamentations on the faces of the two handles come to be considered, striking differences appear between the plaintiffs' design and the White design. In the former, the outer thread is broken at the end of the handle, at the shoulders, and at the junction of the handle with the bowl; while, in the latter, such thread is continuous around the entire handle, from the junction of the stem with the bowl or fork back to the same point, it having there the form of a Gothic arch. In the former, the outer thread is, at the shoulders, turned inward to form rosettes, which present the appearance of two parts twisted together; while, in the latter, the outer thread is continuous. In the former, there is, on the stem of the handle, on each side, extending from the shoulders to the bowl or fork, an inner thread parallel with and inside of the outer thread; while, in the latter, there is no such inner thread. In the former, the inner threads on the enlarged end of the handle turn outward from each other towards the end of the handle, so as to form diverging scrolls; while, in the latter, such inner threads, as they approach the end of the handle, turn inwards and form re-entering scrolls. In the former, the scrolls of the inner threads form, at the end of the handle, a part of the outline boundary of the handle; while, in the latter, such scrolls are entirely inside of such outline boundary. In the former, the end of the handle is formed by a tip inserted between the two diverging scrolls into which the inner threads are formed; while, in the latter, the continuous outer thread forms such extreme end. In the latter, a figure in the form of a shield is inserted between the scrolls into which the inner threads are formed and the outer thread; while, in the former, no such figure is found, and no place exists where it could be inserted. In the latter, there is, on each side, a third and short thread, extending from the said scroll to the widest part of the handle; while no such thread is found in the former. In the former, the inner thread on the enlarged end of the handle abuts, at the shoulder next the stem, against the scroll or rosette into which the outer thread is there formed, and looks as if it were a continuation of the outer thread on the stem passed under the said scroll; while, in the latter, the inner thread on the enlarged end of the handle is, at the shoulders, turned into a scroll or rosette, and has no appearance of being a continuation of the outer thread in the stem. In the former, the inner threads on the stem unite in a swell or boss near the bowl or fork; while no such swell or boss is found in the latter. It is also to be noted, that, in the former the outline at the end of the enlarged end of the handle has the form of a portion of a trefoil; while, in the latter, it has the form of a Gothic arch; and that, in the former, the surface of the enlarged end between the threads is swelled between the shoulders, and such swell is gradually flattened towards the widest part of the handle, so that the swell at such part is substantially different in appearance from the swell at the shoulders; while, in the latter, the swell is substantially the same from the shoulders to the broadest part of the enlarged end.

'The differences thus observed between the plaintiffs' design and the White design of 1867, exist also between the plaintiffs' design and the White design of 1868. In addition, in the plaintiffs' design, the contour of the enlarged end of the handle spreads outward progressively from the shoulders until the widest part of the handle is reached; while, in the White design of 1868, the sides of the enlarged end turn inward for a distance after leaving the shoulder and then spread outwards to the widest part.

'From the comparisons thus instituted, it appears that the plaintiffs' design and the White design of 1867, are, in what has been called outline, very much alike, while they differ from each other in a marked manner in what has been called ornamentation, while the plaintiffs' design and the White design of 1868 differ from each other in a marked manner, both in outline and in ornamentation; and that the two White designs differ from each other in outline in a marked manner, while they scarcely differ at all from each other in ornamentation.

'There can be no doubt, in the proofs, that the plaintiffs' design is a very meritorious and salable one. The entire strength of their case, on the question of infringement, is put on the claimed ground, that the resemblance between their design and each of the two designs of White is such as to mislead ordinary purchasers and casual observers, and to induce them to mistake

the one design for the other. It is argued that the merit of a design appeals solely to the eye, and that if the eye of an ordinary observer cannot distinguish between two designs, they must in law be substantially alike. In the present case, it is asserted that the eye of the ordinary observer is and will be deceived when looking at a handle of the plaintiffs' design and a handle of either of the designs of White, because, in addition to the resemblance in contours, the handles have all of them a threaded pattern around the edges, and small knobbed ornamentations at the shoulders, and small knobbed ornamentations near the end, and a pointed projection at the end, and that the general effect on the eye of the ordinary observer is not and will not be modified by the differences which have been pointed out.

'It is impossible to assent to the view, that the test in regard to a patent for a design is the eye of an ordinary observer. The first question that would arise, if such a test were to be admitted, would be, as to what is meant by 'an ordinary observer,' and how he is to exercise his observation. One of the witnesses for the plaintiffs testifies that the plaintiffs' design and the White design of 1867 are sufficiently alike to mislead ordinary purchasers as to their identity, but not on a second examination; and that if an ordinary purchaser did not have before him a sample of the plaintiffs' design, he would be apt to consider the White design of 1867 to be the same pattern as the plaintiffs' design. Another of the witnesses for the plaintiffs states that he does not think that an ordinary observer would notice any difference between the two designs on a casual observation. The expert examined for the plaintiffs testifies that, in saying that the White designs are substantially identical with the plaintiffs' design, he means such an identity as would deceive him when going as a purchaser to ask for one spoon and being shown another; and that when he saw articles of the plaintiffs' design and of the White design of 1867 separately, he took them to be of the same design, until he laid them side by side and compared them minutely.

'The same principles which govern in determining the question of infringement in respect to a patent for an invention connected with the operation of machinery, must govern in determining the question of infringement in respect to a patent for a design. A design for a configuration of an article of manufacture is embraced within the statute as a patentable design, as well as a design for an ornament to be placed on an article of manufacture. The object of the former may solely be increased utility, while the object of the latter may solely be increased gratification to a cultivated taste addressed through the eye. It would be as reasonable to say that equal utility should be the test of infringement in the first case, as to say that equal appreciation by the eye should be the test of infringement in the latter case. There must be a uniform test, and that test can only be, as in the case of a patent in respect to machinery, substantial identity, not in view of the observation of a person whose observation is worthless, because it is casual, heedless, and unintelligent, and who sees one of the articles in question at one time and place and the other of such articles at another time and place, but in view of the observation of a person versted in the business of designs in the particular trade in question-of a person engaged in the manufacture or sale of articles containing such designs-of a person accustomed to compare such designs one with another, and who sees and examines the articles containing them side by side. The question is not whether one design will be mistaken for another by a person who examines the two so carelessly as to be sure to be deceived, but whether the two designs can be said to be substantially the same when examined intelligently side by side. There must be such a comparison of the features which make up the two designs. As against an existing patented design, a patent for another design cannot be withheld because, to a casual observer, the general appearance of the latter design is so like that of the earlier one as to lead him, without proper attention, to mistake the one for the other. The same test must be applied on the question of infringement.

'Applying these principles to the evidence in this case, and comparing the designs of White with the plaintiffs' design, it is satisfactorily shown, by the clear weight of testimony, that the designs of White are not substantially the same as the plaintiffs' design. The strength of the testimony of the witnesses on the part of the plaintiffs themselves leads to this conclusion. The substance of the evidence of the most intelligent of them, persons in the trade, is merely to the effect that the White designs are not substantially the same as the plaintiffs' design, but were intended to appear to be the same to an ordinary purchaser, and will so appear to him, but that a person in the trade will not be deceived, by the resemblance, into purchasing an article of the one design for an article of the other.

'A patent for a design, like a patent for an improvement in machinery, must be for the means of producing a certain result or appearance, and not for the result or appearance itself. The plaintiffs' patent is for their described means of producing a certain appearance in the completed handle. Even if the same appearance is produced by another design, if the means used in such other design to produce the appearance are substantially different from the means used in the prior-patented design to produce such appearance, the later design is not an infringement of the patented one. It is quite clear, on a consideration of the points of difference before enumerated, between the plaintiffs' design and the designs of White, that each of the latter is substantially different from the former in the means it employs to produce the appearance it presents. Such is the undoubted weight of the evidence, and such is the judgment of the court.'

The Circuit Court accordingly decreed a dismissal of the bill, and from that decree the Gorham Company brought the case here, where, after an elaborate and interesting argument by Messrs. C. M. Keller and C. F. Blake, for the appellants, and Messrs. G. Gifford and W. C. Witter, contra,--

Mr. Justice STRONG delivered the opinion of the court.

The sole question is one of fact. Has there been an infringement? Are the designs used by the defendant substantially the same as that owned by the complainants? To answer these questions correctly, it is indispensable to understand what constitutes identity of design, and what amounts to infringement?

The acts of Congress which authorize the grant of patents for designs were plainly intended to give encouragement to the decorative arts. They contemplate not so much utility as appearance, and that, not an abstract impression, or picture, but an aspect given to those objects mentioned in the acts. It is a new and original design for a manufacture, whether of metal or other material; a new and original design for a bust, statue, bas relief, or composition in alto or basso relievo; a new or original impression or ornament to be placed on any article of manufacture; a new and original design for the printing of woollen, silk, cotton, or other fabrics; a new and useful pattern, print, or picture, to be either worked into, or on, any article of manufacture; or a new and original shape or configuration of any article of manufacture-it is one or all of these that the law has in view. And the thing invented or produced, for which a patent is given, is that which gives a peculiar or distinctive appearance to the manufacture, or article to which it may be applied, or to which it gives form. The law manifestly contemplates that giving certain new and original appearances to a manufactured article may enhance its salable value, may enlarge the demand for it, and may be a meritorious service to the public. It therefore proposes to secure for a limited time to the ingenious producer of those appearances the advantages flowing from them. Manifestly the mode in which those appearances are produced has very little, if anything, to do with giving increased salableness to the article. It is the appearance itself which attracts attention and calls out favor or dislike. It is the appearance itself, therefore, no matter by what agency caused, that constitutes mainly, if not entirely, the contribution to the public which the law deems worthy of recompense. The appearance may be the result of peculiarity of configuration, or of ornament alone, or of both conjointly, but, in whatever way produced, it is the new thing, or product, which the patent law regards. To speak of the invention as a combination or process, or to treat it as such, is to overlook its peculiarities. As the acts of Congress embrace only designs applied, or to be applied, they must refer to finished products of invention rather than to the process of finishing them, or to the agencies by which they are developed. A patent for a product is a distinct thing from a patent for the elements entering into it, or for the ingredients of which it is composed, or for the combination that causes it. We do not say that in determining whether two designs are substantially the same, differences in the lines, the configuration, or the modes by which the aspects they exhibit are not to be considered; but we think the controlling consideration is the resultant effect. Such was the opinion of Lord Chancellor Hatherly in McCrea v. Holdsworth. That was a suit to restrain an infringement of a design for ornamenting a woven fabric. The defence was a denial that the design used by the defendants was the same as that to which the plaintiff was entitled. The ornament on both was, in part, a star, but on one it was turned in an opposite direction from that in the other; yet the effect of the ornament was the same to the eye. The Lord Chancellor held the important inquiry was whether there was any difference in the effect of the designs, not whether there were differences in the details of ornament. 'If,' said he, 'the designs are used in exactly the same manner, and have the same effect, or nearly the same effect, then, of course, the shifting, or turning round of a star, as in this particular case, cannot be allowed to protect the defendants from the consequences of the piracy.' This seems most reasonable, for, as we have said, it is the effect upon the eye which adds value to articles of trade or commerce. So in Holdsworth v. McCrea, Lord Westbury said, 'Now, in the case of those things in which the merit of the invention lies in the drawing, or in forms that can be copied, the appeal is to the eye, and the eye alone is the judge of the identity of the two things. Whether, therefore, there be piracy or not is referred to an unerring judge, namely, the eye, which takes the one figure and the other figure, and ascertains whether they are or are not the same.' This was said in a case where there was nothing but a drawing of the design.

We are now prepared to inquire what is the true test of identity of design. Plainly, it must be sameness of appearance, and mere difference of lines in the drawing or sketch, a greater or smaller number of lines, or slight variances in configuration, if sufficient to change the effect upon the eye, will not destroy the substantial identity. An engraving which has many lines may present to the eye the same picture, and to the mind the same idea or conception as another with much fewer lines. The design, however, would be the same. So a pattern for a carpet, or a print may be made up of wreaths of flowers arranged in a particular manner. Another carpet may have similar wreaths, arranged in a like manner, so that none but very acute observers could detect a difference. Yet in the wreaths upon one there may be fewer flowers, and the wreaths may be placed at wider distances from each other. Surely in such a case the designs are alike. The same conception was in the mind of the designer, and to that conception he gave expression.

If, then, identity of appearance, or (as expressed in McCrea v. Holdsworth) sameness of effect upon the eye, is the main test of substantial identity of design, the only remaining question upon this part of the case is, whether it is essential that the appearance should be the same to the eye of an expert. The court below was of opinion that the test of a patent for a design is not the eye of an ordinary observer. The learned judge thought there could be no infringement unless there was 'substantial identity' 'in view of the observation of a person versed in designs in the particular trade in question-of a person engaged in the manufacture or sale of articles containing such designs-of a person accustomed to compare such designs one with another, and who sees and examines the articles containing them side by side.' There must, he thought, be a comparison of the features which make up the two designs. With this we cannot concur. Such a test would destroy all the protection which the act of Congress intended to give. There never could be piracy of a patented design, for human ingenuity has never yet produced a design, in all its details, exactly like another, so like, that an expert could not distinguish them. No counterfeit bank note is so identical in appearance with the true that an experienced artist cannot discern a difference. It is said an engraver distinguishes impressions made by the same plate. Experts, therefore, are not the persons to be deceived. Much less than that which would be substantial identity in their eyes would be undistinguishable in the eyes of men generally, of observers of ordinary acuteness, bringing to the examination of the article upon which the design has been placed that degree of observation which men of ordinary intelligence give. It is persons of the latter class who are the principal purchasers of the articles to which designs have given novel appearances, and if they are misled, and induced to purchase what is not the article they supposed it to be, if, for example, they are led to purchase forks or spoons, deceived by an apparent resemblance into the belief that they bear the 'cottage' design, and, therefore, are the production of the holders of the Gorham, Thurber, and Dexter patent, when in fact they are not, the patentees are injured, and that advantage of a market which the patent was granted to secure is destroyed. The purpose of the law must be effected if possible; but, plainly, it cannot be if, while the general appearance of the design is preserved, minor differences of detail in the manner in which the appearance is produced, observable by experts, but not noticed by ordinary observers, by those who buy and use, are sufficient to relieve an imitating design from condemnation as an infringement.

We hold, therefore, that if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.

Applying this rule to the facts of the present case, there is very little difficulty in coming to a satisfactory conclusion. The Gorham design, and the two designs sold by the defendant, which were patented to White, one in 1867, and the other in 1868, are alike the result of peculiarities of outline, or configuration, and of ornamentation. These make up whatever is distinctive in appearance, and of these, the outline or configuration is most impressive to the eye. Comparing the figure or outline of the plaintiffs' design with that of the White design of 1867, it is apparent there is no substantial difference. This is in the main conceded. Even the minor differences are so minute as to escape observation unless observation is stimulated by a suspicion that there may be diversity. And there are the same resemblances between the plaintiffs' design and the White design of 1868, and, with a single addition, the minor differ ences are the same. That additional one consists in this. At the upper part of the handle, immediately above the point where the broader part widens from the stem with a rounded shoulder, while the external lines of both designs are first concave, and then gradually become convex, the degree of concavity is greater in the White design. How much effect this variance has must be determined by the evidence. In all the designs, the ornament is, in part, a rounded moulding or bead along the edge with scrolls at the shoulders and near the top. There are, however, some diversities in this ornament, which are discoverable when attention is called to them. In the plaintiffs' the bead is interrupted at the shoulders and at the tip by the scrolls, while in both the designs of White it is continued unbroken around the scrolls. In the plaintiffs' the scrolls turn inward at the shoulders and outward at the tip. In the White design they turn inward both at the shoulders and at the upper end. But there are the same number of scrolls in all the designs, and they are similarly located, all having the appearance of rosettes. In all the external bead is formed by a depressed line running near the edge of the handle, but in the plaintiffs' there is an inner line, making a second very thin bead, nearly parallel to the external bead common to them all. In the White designs this inner line is wanting on the stem of the handle, though not on the broad part, but as the single line is wider it presents much the same appearance as it would present if divided into two. There are other small differences which it is needless to specify. What we have mentioned are the most prominent. No doubt to the eye of an expert they are all real. Still, though variances in the ornament are discoverable, the question remains, is the effect of the whole design substantially the same? Is the adornment in the White design used instrumentally to produce an appearance, a distinct device, or does it work the same result in the same way, and is it, therefore, a colorable evasion of the prior patent, amounting at most to a mere equivalent? In regard to this we have little doubt, in view of the evidence. Both the White designs we think are proved to be infringements of the Gorham patent. A large number of witnesses, familiar with designs, and most of them engaged in the trade, testify that, in their opinion, there is no substantial difference in the three designs, and that ordinary purchasers would be likely to mistake the White designs for the 'cottage' (viz., that of the plaintiffs). This opinion is repeated in many forms of expression, as, that they are the same pattern; that the essential features are the same; that seven out of ten customers who buy silverware would consider them the same; that manufacturers as well as customers would consider them the same; that the trade generally would so consider them; that, though there are differences, they would not be noticed without a critical examination; that they are one and the same pattern, &c., &c. This is the testimony of men who, if there were a substantial difference in the appearance, or in the effect, would most readily appreciate it. Some think the White designs were intended to imitate the other, and they all agree that they are so nearly identical that ordinary purchasers of silverware would mistake one for the other. On the other hand a large number of witnesses have testified on behalf of the defendant that the designs are substantially unlike, but when they attempt to define the dissimilarity they specify only the minor differences in the ornamentation, of which we have heretofore spoken. Not one of them denies that the appearance of the designs is substantially the same, or asserts that the effect upon the eye of an observer is different, or that ordinary purchasers, or even persons in the trade, would not be led by their similarity to mistake one for another. Their idea of what constitutes identity of design seems to be that it is the possibility of being struck from the same die, which, of course, cannot be if there exists the slightest variation in a single line. They give little importance to configuration, and none to general aspect. Such evidence is not an answer to the complainants' case. It leaves undisputed the facts that whatever differences there may be between the plaintiffs' design and those of the defendant in details of ornament, they are still the same in general appearance and effect, so much alike that in the market and with purchasers they would pass for the same thing-so much alike that even persons in the trade would be in danger of being deceived.

Unless, therefore, the patent is to receive such a construction that the act of Congress will afford no protection to a designer against imitations of his invention, we must hold that the sale by the defendant of spoons and forks bearing the designs patented to White in 1867 and 1868 is an infringement of the complainants' rights.

DECREE REVERSED and the cause remitted with instructions to enter a decree in ACCORDANCE WITH THIS OPINION.

Justices MILLER, FIELD, and BRADLEY dissented.


text: Talk:Gorham Company v. White/Opinion of the Court


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Morgan v. United States (81 U.S. 531)

APPEAL from the Court of Claims; the case being thus:

Morgan let, on the 1st of March, 1865, a vessel to the United States by a charter-party, by whose terms the owners were to keep the vessel tight, stanch, manned, victualled, and apparelled, and fit for merchant service; and the United States were to pay $182.25 per diem.

The United States were to employ the vessel and pay the per diem 'until the vessel is returned to the said Morgan, in Philadelphia, in the same order as when received, ordinary wear and tear, damage by the elements, collision at sea or in port, bursting of boilers, and breakage of machinery excepted.' The charter was to continue in use as long as the War Department required the vessel. The owners were to bear the marine risk, the United States the war risk.

Under the charter-party the vessel was, in July, 1865, at Brazos St. Iago, Texas, and was, by the quartermaster there, ordered to receive on board certain troops and stores, and to proceed as soon as this was done to New Orleans, Louisiana.

The bar at the mouth of the harbor of Brazos is difficult and dangerous, and when the vessel was ready to proceed on the voyage the wind was high and the water on the bar low. The quartermaster, being informed of the difficulty, ordered a tugboat to aid in taking the vessel over the bar, and in tow of this tugboat and in charge of a pilot in the service of the United States the vessel proceeded to the bar and attempted to cross, but struck, and the hawser of the tow having parted, the vessel swung round inside the bar and returned to the landing. In this attempt she received injuries which, if time could have been allowed, could have been repaired in two days, and at a cost of $500 or $600.

The quartermaster again ordered the vessel to proceed to sea. This order was given with a full knowledge of the danger of crossing the bar, and against the judgment of both the master of the vessel and the pilot; but the exigencies of the service, in the judgment of the quartermaster, required the attempt to be made.

The master, under this order of the quartermaster, again attempted to cross the bar in tow of the steamtug, and under charge of the government pilot, as before, but struck heavily and was finally dragged over the bar by the tug, aided by her own steam-power. In this attempt she sustained such damage that she was compelled to use her steam-pump to save her from sinking, and the troops and stores being discharged, she was towed to New Orleans by a government transport.

The repair of the damages so sustained in crossing the bar cost $6890, of which the government paid $4283, and refused to pay any further part thereof.

The said vessel was laid up and detained in making the said repairs in all forty-five and a half days, for which time the per diem allowance stipulated in the charter-party at $182.25, amounted to $8292.37, of which the government paid $2281.06, as wages and board of the master and crew who were employed in aiding in the repairs of the vessel; and refused to pay any further amount on account of the said per diem. Thereupon Morgan filed a petition in the Court of Claims for the whole amount claimed and unpaid. That court dismissed the petition.

Messrs. N. Chipman, Carlisle, and McPherson, for the claimants:

The injury was caused by a war risk; the imminent danger of the country at that moment and the urgent necessity of sending troops forward to New Orleans without delay. The quartermaster had 'a full knowledge of the danger of crossing the bar.' He knew he was going into the jaws of destruction; but 'the exigencies of service'-those same exigencies which compel men to walk up to the cannon's mouth-compelled him to give the desperate order. The order was obeyed and the catastrophe followed. What was all this but the risks of war, 'war risks?' Such risks the United States were to bear.

Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Morgan v. United States (81 U.S. 531)


text: Talk:Morgan v. United States (81 U.S. 531)


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Morgan v. United States (81 U.S. 531)/Opinion of the Court

These claimants cannot recover, on the ground that the injuries to their vessel were occasioned by the tortious act of the quartermaster at Brazos in compelling their master, against his better judgment, to proceed to sea; nor would their condition be improved if the vessel had been actually impressed into the service of the United States, for in neither case would the Court of Claims have jurisdiction. Congress has wisely reserved to itself the right to give or withhold relief where the claim is founded on the wrongful proceedings of an officer of the government.

The case, therefore, rests wholly on the contract of affreightment, and the inquiry is, which of the parties to it must bear the loss caused by the stranding of the claimants' vessel on the bar at the mouth of the harbor of Brazos.

The stipulations in the contract applicable to this subject leave no room for doubt how the question should be answered. The United States, being in a state of war, found it necessary to hire the injured vessel for the purpose of transporting troops and munitions of war to different ports and places, and entered into a contract with her owners to carry this purpose into effect. The vessel was to be officered and manned by the owners, who agreed at all times to keep her in repair and fit for the service in which she was engaged. In no sense were the United States the owners of the vessel, for they had nothing to do with her management, and only reserved to themselves the right to say how she should be loaded and where she should go. In the condition of things then existing it became necessary to make provision for two classes of perils. This was done; the United States assuming the war risk, while the owners of the boat agreed to bear the marine risk. If, therefore, the stranding of the boat in going over the bar was owing to a peril of the sea, her owners, and not the government, must bear the loss. That the high wind and low stage of water were the efficient agents in producing this disaster are too plain for controversy. They were the proximate causes of it, and in obedience to the rule causa proxima non remota spectatur we cannot proceed further in order to find out whether the fact of war did not create the exigency which compelled the employment of the vessel. If it did, it was known to the owners when the charter-party was formed, who, with this knowledge, became their own insurers against the usual sea risks, and must abide the consequences of their stipulation.

There is a certain degree of hardship in this case growing out of the peremptory order of the quartermaster to proceed to sea, but this is outside of the contract, and, if worthy of being considered at all, must be addressed to another department of the government.

JUDGMENT AFFIRMED.


text: Talk:Morgan v. United States (81 U.S. 531)/Opinion of the Court


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United States v. Justice

APPEAL from the Court of Claims; the case, as found by it, being thus:

On the 12th of August, 1861, Philip S. Justice, by a letter to Lieutenant Treadwell, first lieutenant of ordnance, proposed to supply the Ordnance Department with 4000 rifled muskets, similar in style and finish to the sample deposited with the said lieutenant, at $20 each.

On the next day Lieutenant Treadwell, inclosing Justice's proposition, wrote to General Ripley, then chief of ordnance, at Washington, as follows:

'I inclose a proposition from Mr. Justice to furnish rifle muskets, calibre .69. I have examined a sample of the musket, and it is a good serviceable arm, .69 calibre, clasp bayonet, long-range sight, original percussion barrel, and well finished.'

On August 16th, 1861, General Ripley replied to Lieutenant Treadwell, saying:

'You are authorized to accept Mr. Justice's proposition.'

And on August 17th, 1861, Lieutenant Treadwell wrote to Justice as follows:

'I am authorized by the Ordnance Department to accept your proposal of August 12th, to furnish for the United States 4000 rifled muskets, calibre 69/100 of an inch, equal in all respects to the sample deposited with me, at $20.'

In execution of the contract, Justice delivered from time to time, 2174 rifled muskets, all of which were inspected by subordinate officers appointed by Lieutenant Treadwell, and received under his official certificate that they had been duly inspected and approved. 'These arms' thus furnished, 'were not,' as the Court of Claims found, 'in all respects, similar to the sample arm, but on an average not inferior to it; which was far from being a standard or first-class arm of the United States. It was not equal to the Springfield rifle. And the Justice arms were far from being a first-class arm.'

title: United States v. Justice


text: Talk:United States v. Justice

title: Talk:United States v. Justice