text:
Raymond v. Tyson

THIS was an appeal from the district court of the United States for the northern district of California. The libel was filed in the district court, held by Mr. Ogden Hoffman, Jr., who decreed that the libellant, Tyson, had a lien upon the cargo of coal, for the sum of twelve thousand dollars. The libellant was part owner, and agent, and ship's husband, of the ship Orphan, and resided in New York. The claimant appealed to the circuit court, which was also held by Mr. Ogden Hoffman, Jr., where the decree of the district court was affirmed. The claimant then appealed to this court.

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

It was argued by Mr. Lord, for the appellant, and Mr. Cutting, for the appellee.

The points made by the respective counsel were the following: -

Mr. Lord, for appellant.

The appellant and claimant conceives the decree to be erroneous, and that it should be reversed, on the following grounds:

1. That by the general character of the charter, the ship was hired to J. Howard and Son, to be employed in voyages, to and fro, in the Pacific Ocean. That the deliveries of cargoes there, were to be at ports there; while the payments of the monthly charter money were to be made in New York. And it could not be contemplated, that the deliveries of cargoes should be delayed to wait intelligence from the Atlantic ports, whether the payment of the monthly charter, at the end of each half year, had been made at the day it was due, or afterwards.

2. That the coasting voyages, from port to port in the Pacific, which might be seeking voyages, could not be expected to be carried on, if the cargoes were to be subjected to the lien of six months' charter money, without the possibility of knowing, in the Pacific ports, whether that freight had not been paid at New York.

3. A lien or detention of cargo, under such uncertainty of facts, to transpire at a distant place, would be dangerous both to ship-owner and charterer and freighter. The ship-owner and master might be exposed to heavy damages for withholding the property, when the charter money may have been paid at New York without his knowledge. The owners of cargoes, and especially their consignees, could not know whether they were entitled to them or not.

4. The provision as to payment of freight, up to the time of news of the loss of the ship, rendered the amount of freight payable at New York always uncertain, at the day it was reserved, or at any time, until news at New York of the ship being in safety at the end of each six months.

5. No express terms of hypothecating the cargoes, or subjecting them to hen, are found in the charter-party; the omission of which usual provision in charters of American ships, confirms the inference from the general character of the instrument, that it was made on the credit of the charterers, without the exaction of any lien. The Volunteer, 1 Sumn. R. 551; 3 Kent Com. *220.

6. The charter-party binding the ship-owner to deliver the cargoes, without any reference to payment of charter money, supports the same construction. P. 6.

7. The reservation of payment, in such mode and under such circumstances as are above referred to, is inconsistent with the implication of any lien; and the absence of any express creation of any lien, excludes its existence in this case. 2 Kent's Com. *635, *636, 639; Chase v. Westmore, 5 M. and Selw. 180; Crawshay v. Homfray, 4 Barn. and Ald. 50; Pickman v. Woods, 6 Pick. R. 248; Alsager v. St. Catharine Dock Co. 14 Mees. and W. 799; Belcher v. Capper, 4 Man. and Gr. 502.

8. The sentence of the court below should be reversed, and a decree directed for the damages of the claimants, to be ascertained by a proper reference.

Mr. Cutting, for the appellee, made the following points:--

1. Under the terms of the charter-party, the libellant continued to be owner, and in possession of the ship, during the voyages contemplated by the parties.

He was to employ the master, victual and man her, and keep her in repair, during the whole term, at his own expense. He agreed to freight the whole ship, or sufficient room for the cargo specified, expressly reserving the deck, cabin, and necessary room for the crew; the charterers contracted for the privilege of putting in coal to ballast the ship from London to Cardiff, in case they desired so to do. The owner stipulated to receive and deliver such merchandise as the charterers should provide.

There are no words of demise, or any clear letting of the ship; and, taking all the stipulations together, the result is, that the contract is a mere covenant for the transportation of merchandise, and the performance of the service stipulated for. Possession of the ship continued in the owner, and he was to manage, control, and navigate her. The master was his agent, and not the agent of the charterer. The libellant remained subject to all the responsibilities and obligations of ownership, and was answerable to the charterers for the acts and conduct of the master and mariners. Certain Logs of Mahogany, 2 Sumn. R. 589; ''Marcardier v. Chesapeake Ins. Co. 8 Cranch, 49; Palmer v. Gracie,'' 4 Wash. C. C. R. 110-123; S.C.. 8 Wheat. 605; McIntyre v. Bowne, 1 Johns. R. 229; Clarkson v. Edes, 4 Cow. R. 470; Holmes v. Pavenstedt, 5 Sandf. R. 97; 3 Kent's Com. 138; 1 Parsons on Cont. 657.

If, upon the whole instrument, it be doubtful what was intended, the general owner continues such during the term; his rights can only be displaced by a clear and determinate transfer of them. Logs of Mahogany, 2 Sumn. R. 589.

2. The ship-owner has a lien upon the cargo, for the freight of its transportation, unless it has been waived or abandoned by agreement. Gracie v. Palmer, 8 Wheat. 605, 635; S.C.. 4 Wash. C. C. R. 110-123; 4 Cow. R. 481, per Savage, C. J.; The Volunteer, 1 Sumn. R. 551; Ruggles v. Bucknor, 1 Paine's R. 358; Drinkwater v. Brig Spartan, 1 Ware's R. 156; Holmes v. Pavenstadt, 5 Sandf. R. 97; Small v. Moates, 9 Bing. R. 574; Gladstanes v. Allen, 12 Com. Bench. R. 202, 22 Eng. Law and Eq. R. 382; Angel on Car. §§ 385, 386; Abbott on Ship. 287, 288-299.

3. The right of lien upon the cargo of the charterers, for charter money due and in arrears, has not been waived or abandoned by the respondent.

The stipulation that the charter money should be paid in New York-semiannually, is not a waiver of, nor is it incompatible with, the right of lien for freight money due and unpaid. Saville v. Campion, 2 Barn. and Ald. 503; The Volunteer, 1 Sumn. R. 371; Logs of Mahogany, 2 Sumn. R. 589; Saville v. Campion, 3 Bing. N. C. 17.

It was not even an agreement to give credit for the earnings of the ship. According to the ordinary length of a voyage from London or Cardiff to Panama or California, the time for the payment of the first six months' service, would have matured before the ship had reached her port of delivery. The actual time was eight months and over. (Page 20.)

The charterers agreed to furnish the master, from time to time, with any funds he might require for the ship's ordinary expenses, which were to be deducted out of the semiannual instalments, if advices thereof were received. Upon the return of the vessel to New York or Great Britain, all moneys due at that time were to be paid forthwith, on demand.

It had no other effect than to fix the periods of payment, and to suspend the right to enforce a lien upon the cargo, until default of payment. New v. Swain, 1 Dan. and Lloyd, 193.

The length of the term of employment, which was to be at least fifteen months, with the privilege to the charterers of extending it nine months, and the large amount at risk, preclude the idea of an agreement to waive or abandon the right of lien, in the event of default in payment.

Default was made in the payment of the freight money due at the end of the six months; and the ship-owner was thereupon at liberty to proceed and enforce his lien. New v. Swain, 1 Danson & Lloyd, Merc. Cases, 193; Dixon v. Yates, 2 Nev. and Man. R. 177; Saville v. Campion, 2 B. & Al. 503, 513; Abbott on Ship. 289.

There are no other provisions in the charter-party that operate as a waiver or release of the right of lien.

The covenant, by the charterers, that they will provide a full cargo, strongly implies that the security of a lien upon it was contemplated and reserved.

The bill of lading delivered by the master, and accepted by the charterers, shows that both the parties understood that the delivery of the cargo was upon the condition of payment of freight, as per charter-party; if it were unpaid in New York, delivery could not be compelled by the consignee, without satisfying the amount due. Small v. Moates, 9 Bing. 574. Gladstanes v. Allen, 12 Com. Bench, 202.

4. A lien for freight is favored in the law, and ought not to be displaced without a clear and determinate abandonment of it.

It is not excluded in the present case by any express or absolute terms, or by unavoidable implication, or by any provisions repugnant to, or inconsistent with, the right to enforce it.

The burden is on the appellant to establish a waiver or extinguishment of the right.

5. The decree of the court below ought to be affirmed, with costs.

Mr. Justice WAYNE delivered the opinion of the court.

title: Raymond v. Tyson


text: Talk:Raymond v. Tyson

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

title: Talk:Raymond v. Tyson


text:
Raymond v. Tyson/Opinion of the Court

This is an appeal from the district court for the northern district of California.

The suit was brought, by a libel in the admiralty, against 844 tons of coal (of which Raymond was the claimant) on board the ship Orphan, of which Tyson, the libellant, was a part owner. Its object was to enforce an alleged lien, on the coal claimed under a charter-party between Tyson and J. Howard and Son, of New York, charterers. The charter-party was made at New York, on the 1st February, 1850, the ship at that time being on her voyage to London. The whole ship, with the exception of the deck, cabin, and necessary room for the crew, and stowage of provisions, sails, and cables, was chartered by the owner to J. Howard and Son, for a voyage from London direct, or from thence to Cardiff, in Wales, (if required,) to load for a port or ports on the Pacific, where she was to be employed between such ports as the charterers might elect; thence to be returned back, either to New York or Great Britain, at their option. The time for her employment was to extend to the full term of fifteen months, with a privilege to the charterers to extend it to twenty-four months. The charterers engaged to furnish the ship with a full cargo-bills of lading to be signed for it without prejudice to the charter-and they contracted to pay to the owner of the ship or his agent, for the use of the vessel, at the rate of two thousand dollars per month, commencing in London, if she proceeds thence direct to the Pacific, when ready to load, and notice of the same was given to the charterers or their agent. But if the vessel shall be ordered to Cardiff to load, then the charter was to commence from the time she might be ballasted, and be ready for sea, in London. In that case the ship is to be allowed ten days from the time she is ready to sail from London, until her arrival at Cardiff, and only that time, for which the charterers were to pay, should the ship be a longer or shorter time in making the passage to Cardiff. It is agreed between the owner and the charterers that the charter should be payable in New York semiannually: the first payment to be made six months from the commencement of the same, and so every six months during the continuance of the charter, before the arrival of the ship and her being delivered back to the owner, in New York or Great Britain; or upon satisfactory proof of total loss of the ship, all moneys in arrears and due, up to the time of the loss, were to be paid on demand. Should the vessel be ordered to California, the charters agree to pay the expense of victualling and manning her, attendant upon the California voyage, and the charter money for any detention caused by desertion of the crew. The charterers agreed also to pay all port charges of the ship incident to her employment, except victualling, manning, and repairs, and to advance funds for the ordinary expenses of the ship after she left Europe, which were to be deducted from the charter payments on vouchers from the captain.

The ship sailed for Cardiff, on the 1st April, 1850, and arrived there on the 14th April. She there took on board from Branson, Sands, and Co., the agents of the charterers, a cargo of 844 tons of coal, the property of the charterers. For this cargo a bill of lading was signed, May 4, 1850, at Cardiff, expressing that the ship was bound to Panama, for orders, to be delivered to order or assigns, he or they paying freight, as per charter-party. The bill of lading is as follows:--

Bill of lading.-Shipped in good order and condition, by Branson, Sands, and Co., of Liverpool, in and upon the good ship or vessel called The Orphan, whereof R. C. Williams is master for this present voyage, and now lying in the port of Cardiff, and bound for Panama for orders, eight hundred and forty-four tons of 'Nixon's Merthyr and Cardiff steam coal,' being marked and numbered as per margin, and are to be delivered in the like good order and condition, at the port, according to orders, (all and every the dangers and accidents of the seas, and navigation, of whatsoever nature of kind, excepted,) unto 'order,' or to assigns; he or they paying freight for the said goods, as per charter-party, with average accustomed.

The ship proceeded to Panama, with her cargo, and thence, by orders of the charterers, to San Francisco. She arrived at San Francisco, December 2, 1850, and the cargo was retained on board by her captain, to preserve an alleged lien upon it for freight. The libellant avers that $12,000 was due for charter money, on the 1st October, and that it had not been paid by the charterers; and that they had not furnished funds for the ship's expenses after she left Europe; and for the money due he claims a lien upon the coal.

Raymond, the claimant, answers, that the bill of lading of the coal had been transferred to him at the time of its shipment by J. Howard and Son, for a valuable consideration paid; and this is not denied in the case. That he thereby became owner of the coal, and has ever since continued to be so, free from any lien or claim in favor of the owners of the ship, or any other persons; that he had demanded the coal, but that the master refused to deliver it. After the libel was issued and the answer had been put in, the master of the ship petitioned for an order for the sale of the coal, as a perishable commodity. The order was granted, the coal was sold, and the proceeds were adjudged to be liable to a lien for the sum due upon the charter-party, on the 1st October.

We shall give our judgment upon the foregoing statement, without considering in detail the general principles governing contracts of affreightment. But we will state two of them, because they have a decisive bearing upon the charter-party, under which this controversy has arisen.

First, it must be remembered, that a charter-party is an informal instrument as often as otherwise, having inaccurate clauses, and that on this account they must have a liberal construction, such as mercantile contracts usually receive, in furtherance of the real intention of the parties and usage of trade. So Lord Mansfield said a long time since. Abbott, in his treatise relative to merchant ships and seamen, Story's edition, 188, gives the rule of construction very much in the same words: but perhaps with more precision. 'The general rule which our courts of law have adopted, in the construction of this as well as other mercantile instruments, is, that the construction should be liberal, agreeable to the real intention of the parties, and conformable to the usage of trade in general, and of the particular trade to which the contract relates.' Chancellor Kent, in his 47th chapter, on the contract of Affreightment, cites the rule approvingly. The late Mr. Justice Thompson, of this court, asserts it in Ruggles v. Bucknor, 1 Paine, 358. Judge Story acted upon it ten years afterwards, in the case of The Volunteer, 1 Sumn. 551; and again in another case, 2 Sumn. 589. The first says: 'It was pressed upon me by the defendant's counsel, that I should decide this abstract question, and lay down some general rules as to the lien on the cargo for the freight, when the voyage is performed under a charter-party. This I do not feel disposed to do, especially as it would and ought to be considered as a mere obiter opinion, if not required by the facts of the case. And, indeed, it is impracticable to lay down any general rules to meet the great variety of cases that must necessarily arise in commercial transactions. Each case must depend, in a great measure, upon its own circumstances. Parties are not bound to any fixed and precise stipulations, to be embraced in a charter-party.' In the case of The Volunteer and cargo, the most difficult question was, whether there was, under the charter-party, a lien on the homeward cargo for the freight. Judge Story says: 'In general, it is well known that by the common law there is a lien on the goods shipped for the freight thereon; whether it arise under a common bill of lading, or under a charter-party. But then this lien may be waived by consent; and in cases of charter-parties, it often becomes a question whether the stipulations are or are not inconsistent with the lien.' The other case mentioned in 2 Sumn. 589, (certain logs of Mahogany v. Richardson,) was one which was decided upon the inaccurate and inconsistent stipulations of a charter-party, by a liberal construction of them, in furtherance of the real intention of the parties and the usage of trade. In Gracie v. Palmer, 8 Wheat. 605, 634, this court has said: 'That the contract of affreightment, like any other contract, is the creature of the will of the parties. It may be varied to infinity, and easily adapted to the exigencies of either party or of any trade. It is only where the express contract is silent, that the implied contract can arise.' These authorities are sufficient, without citing others, to establish the general rule for the construction of charter-parties.

The next rule for the construction of charter-parties, deduced by us from an examination of all of the leading cases in the English and American reports, including those cited in the argument of the counsel of the appellee, is this: that though the owner of a ship, of which the charterer is not the lessee, but freighter only, has a lien upon the cargo for freight, properly so called, and also for a sum agreed to be paid for the use and hire of the ship, his lien may be considered as having been waived, without express words to that effect, if there are stipulations in the charter-party inconsistent with the exercise of the lien, or when it can fairly be inferred that the owner meant to trust to the personal responsibility of the charterer. In Ruggles v. Bucknor, Paine's Reports, 363, Mr. Justice Thompson said: 'There can be no doubt that a ship-owner may, by express stipulations as to payment of freight, incompatible with a claim upon the cargo for the same, be deemed to have waived his lien, as if he should, by the charter-party or otherwise, agree to receive his freight at a time and place having no reference to the delivery of the cargo, or at variance with such time and place. But, as by the general rules of law, the cargo is liable for the freight, it should be satisfactorily shown that the claim has been relinquished before the ship-owner can be required to part with the cargo without payment of the freight.' As early as the year 1820, Chief Justice Spencer had ruled the same in the case of Chandler v. Belden, 18 Johns. 157, 162. His language is: 'The right to retain the cargo for the freight has grown out of the usage of trade; and it does not exist, nor can it be enforced, when the parties have expressly regulated the time and manner of paying the freight, by stipulations in a charter-party, and especially if the cargo is deliverable before the arrival of the periods of payment. Such an agreement is an express renunciation of the right to insist on freight before the cargo is delivered.'

Judge Story says, in the case of The Volunteer: 'But then this lien may be waived by consent, and in charter-parties it often becomes a question whether the stipulations are or are not inconsistent with the existence of the lien. For instance, if the delivery of the goods is by the charter-party to precede the payment or security of payment of freight, such a stipulation furnishes a clear dispensation with the lien for freight, for it is repugnant to it, and incompatible with it.' Judge Story had had occasion to consider this point five years before he gave his opinion in the case of The Volunteer. We find in his note to his edition of Abbott on Shipping, printed by Hilliard, Gray, Little and Wilkins, at Boston, in 1829, page 178, a citation of the case of Chandler and Belden, 18 Johns. 157, with this commentary: 'That part of the language which seems to deny the right to retain, where there is an express stipulation of the time and manner of paying the freight, if it means that that fact alone overturns the lien, whether the stipulation be or be not inconsistent with such lien, admits of much question, and seems inconsistent with the doctrine of the cases cited in the text, as well as with that in Chase v. Westmore, 5 M. and Selw. 180, and Crawshay v. Homfray, 4 Barn. and Ald. 50.'

In Lucas v. Nockell, 4 Bing. 729, it was said: 'It may distinctly appear from the charter-party, that the owner has been content to trust to the personal responsibility of the merchant, and fixing a specific time of payment, before or after delivery, has waived his right to a lien. In Lowell v. Simpson, 16 Vesey, 275; Chase v. Westmore, 5 M. and Selw. 180; and in Crawshay v. Homfray, Barn. and Ald. 52, it was ruled, if there be a specific contract for a particular time and mode of payment, and that contract is inconsistent with the right to retain, it will of course defeat a claim to exercise it.'

Nothing can be found in the cases cited by the counsel for the appellee, in conflict with the extracts just given: on the contrary, most of them admit the principles expressed in those extracts.

Gracie v. Palmer, in 8 Wheaton, the same case upon appeal to this court, decided by Mr. Justice Washington, in 4 Wash. C. C. Reports, affirms what no one will deny: if the ship-owner retains the possession of the ship, and the charterer is merely the freighter, that the former has a lien upon the cargo for freight. Other points were ruled in that case, but they have no bearing upon this, and especially none upon what shall be considered a waiver of a lien for freight. Clarkson and Edes, in 4 Cowen, is to the same point; but both Chief Justice Savage and Mr. Justice Woodworth decided that case from the intention of the parties, as that could be inferred from the charter-party.

Small and Moates, in 9 Bing. 574, decided by Chief Justice Tindal, was a case in which it was expressly agreed that the ship, during the continuance of the voyage, should remain firmly and fully vested in the owner, and that he should at all times during the voyage and service, have a complete lien upon the lading of the ship. It was ruled that he had a lien upon the goods of the charterer, and against his indorsee of the bill of lading. The grounds upon which the indorsee contended against the lien need not be stated here, as they have no relation to any controversy in this case.

Saville v. Campion, much relied upon in 2 Barn. and Ald. 503, 512, decided by Chief Justice Abbott, does not interfere in any way with the rules of construction which we have stated to be applicable to charter-parties. The point ruled in that case was, that as there were no express words of demise of the ship itself, in the charter-party, the freighter did not thereby become the owner for the voyage, and that the possession continued in the owner, and that he had therefore a lien upon the cargo for freight. But the lien on the goods, for the stipulated hire of the ship, is expressly put upon the ground 'that there was nothing to show that the delivery of the goods was to precede the payment of that hire, in cash and bills, as provided for by the deed. The case of Campion v. Colvin, 3 Bing. N. C. 17, involved, first, the inquiry whether or not the owner of the ship did not retain the possession of her, and that the charterer was only freighter. It was ruled that the owner was left in possession, the charter-party being the same on which the court of king's bench decided, in ''Saville v. Campion. Next,'' whether it was the intention of the parties that the ship-owner meant to insist on the delivery of the bills which were to be given on London before the delivery of the cargo; it was decided that he did; but that the decision was given upon the ground of the special agreement, and not on the general right of lien, is obvious from the language of the chief justice. 'Looking to the intent of the parties, it is clear the ship-owner meant to insist upon the delivery of the bills before the delivery of the cargo, so that, with respect to the time at which the freight was payable, there was no difference between that and the preceding cases.' And, lastly, whether or not the assignees of the charterer stood in a different relation to the owner from that of the charterer; it was ruled that he did not. The opinion given by Chief Justice Tindal, in this case, if manifestly not reported with accuracy as to the statement, and is apt to mislead in respect to the second ruling of that learned judge. It appears, then, that neither the case of Saville v. Campion, nor that of Campion v. Colvin, 3 Bing. N. C. 17, contains any thing against the second rule of construction which we have stated. There was not, in either of the charter-parties of those cases, though London had been fixed upon for the place of payment, any thing incompatible with a lien upon the cargo, or at a variance with the time and place which had been agreed upon for its delivery. Upon the authorities cited, we consider the rule to be, that though the owner of a ship who retains possession of her has a lien for freight upon the cargo of the freighter, the lien may be adjudged to have been waived without an express agreement, or words to that effect, if there are stipulations in the charter-party inconsistent with the exercise of such lien, or when it can be fairly inferred, from the language of the instrument, that the owner meant to trust to the personal responsibility of the charterer for the freight or hire of the ship.

The limitation upon such construction and inference, is as well expressed as it cah be, in the language of Judge Story, in the case of certain Logs of Mahogany, 2 Sumn. 597. It is; 'Let us now proceed to the consideration of the terms of the present charter-party, in order to ascertain what is their true meaning and interpretation. If, upon comparing the various clauses, we are led to the conclusion that it is doubtful whether the charterer was intended to have the sole possession and control of the brig during the voyage, or to be constituted owner for the voyage, then the general owner must be deemed such, for his rights and authorities over the voyage must continue, unless displaced by some clear and determined transfer of them.' So we now say, if it be only doubtful in the construction of a charter-party whether the owner has waived his lien upon the cargo, he must have the benefit of that doubt; his lien being given by the force of the common law, which cannot be taken from him, 'though there is a special contract, unless there is something in that contract inconsistent with that lien, or unless it is waived by fair implication.' Williams, Justice; Pinney v. Wells, 10 Connecticut Reports, 104, 115.

We will now turn to the charter-party in this case, and form our judgment accordingly, as the two rules of construction which have been stated shall bear upon it. In the first place, it is not for the carriage of a single cargo or for a voyage, but for a voyage from London direct, or from Cardiff, in Wales, to load for a port or ports in the Pacific, where the ship is to be employed between such ports as the charterers may elect; the time of employment in that way being for fifteen months certain, with the right of the charterers to extend it to twenty-four months. For such employment the charterers agree to pay to the owner or his agent, at the rate of two thousand dollars per month, payable in New York semiannually, and so on every six months during the continuance of the charter. Now, if there be not something else in the charter to control the meaning of the words designating time and place for payment, it cannot be doubted that it was the intention of the owner and the charterers to make time and place substantial parts of their contract. This is not an inference of intention, but a declaration of it in words too intelligible for the use of interpretation. They have a fixed meaning, and cannot, of themselves, have any other meaning. That meaning, then, is the contract between the parties; precisely with the same obligation upon them as another stipulation would have, for the payment of money at a given time and place, in any other analogous mercantile contract. There are no qualifying words of those used to make them doubtful; nothing in the charter which can be applied to make them so. No fact could happen, from any stipulation in it, to make the time and place agreed upon for payment uncertain. Place for the payment of money is a substantial part of any contract to pay it there. It can be insisted upon by him who is to receive it, and cannot be rightfully refused or omitted by him who has it to pay. A broken promise of that kind gives to the creditor a right of action against the debtor for its recovery. Why, upon principle, should a promise to pay freight at a particular time, and at a place other than that where the owner of the ship has undertaken to deliver the cargo, be required to be paid elsewhere? It is the payer's privilege to pay it there. And, should it not be paid, why should the owner have more than a right of action for its recovery, or larger remedies, by suit, than are given in any other contract? We confess we do not see why. Place for the payment of freight, other than that for which the cargo is shipped and discharged, amounts to a stipulation that freight will not be demanded at the last, as a condition for the cargo's delivery. All of the authorities concur in this, that place for the payment of freight is a waiver of a lien upon the cargo, unless there are already circumstances or stipulations to show that it could not have been meant. It is so, because it is at variance with the enforcement of such a lien, according to the usage of trade; and it is so, because, when parties to a charter-party depart from that usage, by agreeing to pay and receive freight at another place than that where the common law gives to an owner of a ship a lien to enforce payment, it must be regarded that the owner had some sufficient reason for not insisting upon his right, according to the common law.

But it was urged by the counsel for the appellee, with earnestness and ingenious ability, that it might be shown that the time and place fixed for the payment, under the charter, was not meant by the owner to be a waiving of a lien. That it had no other effect than to fix the periods of payment, and to suspend the right to enforce a lien upon the cargo until default of payment. Time only might do that, but place connected with time for payment does not.

It was said that the cargo which the charterers agreed to furnish the ship, and which was put on board of her, to be carried from Cardiff to the Pacific, and, that the clause in the charter, that bills of lading were to be signed without prejudice to it, in connection with the fact, that, according to the ordinary length of such a passage, the ship could not have made it before the first payment would have become due, indicated the owners' intention to retain a lien upon the cargo, as an additional security for the first payment. It may have been that the owners had such a purpose in view, apart from the changed condition of the charterers, when payment was not made in New York; but we are sure, from its inconsistency with the chartered employment of the ship, that the charterers never contemplated it. The ship was to load with a full cargo, at London or Cardiff, for a port or ports in the Pacific, to be employed between such ports as the charterers might elect. She was not loaded for a specific voyage to any particular port, where the cargo was to be discharged, but it was to be discharged at one or more ports, as it might have been their interest to direct. The ship sailed from Cardiff to Panama, for orders, with a cargo to be delivered 'according to orders.' Such is the language of the bill of lading, (exactly in conformity with the charter-party,) signed at Cardiff, on the 4th May, 1850, thirty-four days after the ship's hire is said to have commenced. When she arrived at Panama is not shown, but when she arrived at San Francisco, the first payment had become due; and when it was learned there that it had not been paid in New York, her captain refused to discharge the cargo, according to orders, unless payment was made, or security had been given for the freight; in that way, demanding money at San Francisco, which was only payable in New York, or that security should be given for it; neither of which has been provided for in the charter-party, in the event of a default of the first payment. By doing so, he took the ship out of her employment, which had then seven months to run, and disabled the charterers from using her in the only way for which she was chartered. It is no answer to say that his act and its consequences were occasioned by the default of the charterers to make the first seminnual payment. They had at that time rights for a longer service of the ship, and it had not been agreed that their default should either interrupt or terminate them. The lien, as claimed and enforced, raised uncertainties in the relations of the parties not anticipated by either, and at variance with the rights of both. If it had been meant that such a lien should be enforced, it certainly had not been provided upon which of them the loss should fall for the time that the ship would be withheld from her employment; whether or not the owner should make an allowance for it out of the monthly hire of the ship, or that the charterers should continue to pay it whilst she was not in their use or under their control. Such uncertainties, changes of relations between the parties, and consequences, are stronger against the lien claimed than any inferences can be in its favor, which are made from the engagement of the charterers to furnish a cargo, or from the clause in the charter that bills of lading were to be signed without prejudice to it, or from the fact asserted that the ship could not arrive until after the first payment had become due.

Whether or not the delay in her arrival would have been, as it is said the owner anticipated it would be, we do not know; but we do know that the bill of lading was signed on the 4th of May, 1850; that there were than one hundred and forty-six days before the first payment would become due, for her to make the passage, and it is not so certain that it might not have been done, as that the contrary can be assumed to give any force to the suggestion that the cargo had been stipulated for and furnished, to give additional security to the owner by a lien, should there be a failure to make the first semiannual payment. There is too much of indirectness and covert intention in such an anticipation, for us to countenance it. The cargo was obviously put on board as an adventure for profit. Without it, the time it would have taken to make the passage to the locality of the ship's principal employment, for which the charterer was paying at the rate of two thousand dollars per month, would have been a dead loss at least of five months of the time of her charter, or of ten thousand dollars. It cannot be supposed that the charterers were so blind to their interest as to permit that, or that it was not their own interest which prompted them to furnish the cargo without any intention of giving to the owner an opportunity to assert a lien for securing money which they had promised to pay in New York.

Further, the declaration that the time and place fixed for payment was a suspension of the lien, is an admission, if the ship had arrived from Cardiff in time for the discharge of the cargo before the first payment became due, that the owner meant it should be done without being subject to a lien for freight. It was certainly meant that the cargoes which the ship might have carried from port to port in the Pacific, between the intervals when payments were to be made, were to be discharged and delivered without being subject to a lien for freight. It must have been then the owner's intention that all of the cargoes which the ship might carry were to be exempt from a lien, except that which she might have on board when the payment occurred. There is not in the charter any such distinction between them, or any thing looking like the reservation of such a right. Unless that can be made to appear, the engagement of the owner to release a lien upon all other cargoes, and that they were to be discharged before the payment of freight, does not permit the exception of any one of them from that engagement. All of the authorities declare that the owner's consent to receive freight before the cargo is delivered, whether it shall be paid or not, is a waiver of a lien upon the cargo; and that such a waiver may be inferred from a time and place having been agreed upon for the payment of freight, which has no reference to the place where the cargo is to be discharged.

But we will take the case as it was; that the ship did not arrive until after the time for the first payment, that it was not paid, and that on such account the lien was claimed. It does not make the claim stronger. Had it been meant that non-payment should give the lien, it should have been so stipulated. The non-arrival of the ship cannot give to the default any additional support for a lien. The lien here was asserted, not in virtue of the law giving a lien upon cargo, but upon incidents out of the charter, which it is said gave to the owner a lien upon the contingency of their happening. Such a contingent or conditional lien may be agreed for by the owner and the charterer of a ship; but it must be done in terms leaving no doubt about it; or it must be a clear case of inference, to prevail against time fixed for the payment of freight at a place where the cargo is not to be discharged. The charter-party is to be construed liberally, for the purpose of preserving a lien given by the law, if the manner of it shall be only a matter of doubt. But that doubt cannot be helped by contingencies outside of the charter-party not plainly anticipated or growing out of one of its stipnlations. Charter-parties are so frequently inaptly and incautiously drawn, that they may be said almost to have the indefiniteness of commercial guaranties. The language of this court upon the trial of one of the last is applicable here.

'Letters of guaranty are written by merchants, rarely with caution and scarcely ever with precision. They refer, in most cases, as they do in the present, to various circumstances and extensive commercial dealings in the briefest and most casual manner, without regard to form.' The same may be said of charter-parties. 'Though they have usually a printed form for a basis, they are often filled up by ship-brokers and merchants, with little caution and without much attention to a perception of the fitness or unfitness of that form to the special circumstances of particular cases.' It is to be expected, then, that there will be in them unprecise and inconsistent stipulations, which must have, as other mercantile contracts usually receive, a liberal construction in furtherance of the intentions of the parties and the usage of trade. But we do not know a point in commercial law upon which the reported cases are more in conflict. It is said by the last English editor of Lord Tenterden's Treatise, that on a review of the decisions respecting the ship-owner's lien for freight, it is impossible not to regret the uncertainty introduced by their almost irreconcilable conflict with the construction of contracts of charter-parties. The courts of America, in the adoption of our refinements, have reaped for their mercantile communities all the uncertainties attending them; and there and here, as the law now stands, it will be useful for the ship-owner to remember, that although the exercise of his lien may be upheld in cases of doubtful construction, an express contract is the surest and strongest ground upon which that light can rest; and that, by inserting an agreement respecting it in the charter-party, the parties to it may, between themselves, obviate all difficulty upon the subject.

It is certainly to be regretted that such should have been the uncertainty, in both countries, upon so important a point of commercial law. One of our objects in this opinion has been to produce more uniformity of construction hereafter. We thought it would be best done by establishing, from adjudicated cases, and only from such, those rules for the construction of charter-parties, and other contracts of affreightment, which are most frequently needed in trials upon them in courts. One of them we will repeat, in the language of Lord Tenterden. The general rule which our courts of law have adopted in the construction of charter-parties, as well as other mercantile instruments, is, that the construction shall be liberal, agreeable to the intention of the parties, and conformable to the usage of trade in general, and of the particular trade to which the contract relates. Another rule drawn from the cases cited in this opinion is, if the owner of a ship stipulates to receive her freight at a time and place having no reference to the place for the delivery of the cargo, or at variance with such time and place, he is to be considered as having waived his lien.

Both of these rules of construction are applicable to this case. The owner's agreement to receive the hire of the ship at intervals of six months, and in the city of New York, during the continuance of the charter-party, has no reference to the place at which the cargo was to be delivered, and is at variance with the right which the charterer had to fix the time and place for such delivery. The owner, then, is considered by us as having waived his lien upon the cargo for freight. We shall, therefore, reverse the judgment of the court below, and decree a dismission of the libel, with directions that further proceedings in the case shall be in conformity with this opinion.

Mr. Justice CAMPBELL and Mr. Justice GRIER dissented.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the northern district of California, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court, affirming the decree of the district court in this cause, be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said circuit court, with directions to dismiss the libel filed in this cause in the said district court, with costs.

title: Raymond v. Tyson/Opinion of the Court


text: Talk:Raymond v. Tyson/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Long, George (1780-1868)


text:
Troy Iron and Nail Factory v. Odiorne

THIS was an appeal from the circuit court of the United States for the district of Massachusetts, sitting as a court of equity.

It was a bill filed by the Troy Iron and Nail Factory, a manufacturing corporation established in the State of New York, to restrain the Odiornes from infringing certain letters-patent granted to Henry Burden, on the 2d of September, 1840, and by him assigned to the complainant.

The respondents filed an answer, taking various grounds of defence, which it is not necessary, under the circumstances of the case, to particularize. At October term, 1851, the following stipulation was signed by the parties, and filed in the cause:--

The defendants agree not to deny the validity of the complainants' patent, provided they make out their title to the said letters-patent to be good.

They also agree not to deny that the machine complained of in the complainants' bill, is an infringement on the patent granted to H. Burden, on August 4, 1840. [Sept. 2.]

If the complainants shall establish their title to the letters-patent aforesaid, the proper decree may be entered for the complainants, unless the defendants shall prove that the spike machine used by them, and complained of in the bill aforesaid, was constructed prior to the alleged application of H. Burden, made April 18, 1839, for letters-patent therefor, according to the provisions of the statute of the United States, 1839, ch. 88, sec. 7; or was the result of an independent, original invention, prior in time to the invention of the said Burden; in either of which cases the proper decree shall be entered for defendants.

C. P. CURTIS, JR., Plaintiff's attorney.

J. A. ANDREW, for defendants.

Much testimony was taken upon the subjects involved, and in December, 1852, the circuit court dismissed the bill.

From this decree, the complainant appealed to this court.

The case was argued by Mr. George T. Curtis for the appellants; no counsel appearing for the appellee.

The argument upon the point upon which the court rested its decision, consisted of an examination of the evidence bearing upon it, which it is not necessary to state.

Mr. Justice CATRON delivered the opinion of the court.

title: Troy Iron and Nail Factory v. Odiorne


text: Talk:Troy Iron and Nail Factory v. Odiorne


text:
Troy Iron and Nail Factory v. Odiorne/Opinion of the Court

Henry Burden obtained a patent, in 1840, for a machine to make hook-headed spikes. He applied for the patent on the 18th of April, 1839. It was assigned to the Tory Iron and Nail Company, who filed a bill against the Odiornes, to enjoin them, and for an account for using a machine to make similar spikes; and which machine, it is alleged, infringed the monopoly secured to Burden, by his patent of 1840. The case was brought to a hearing on the following stipulation:--

'The defendants agree not to deny the validity of the complainant's patent, provided they make out their title to the said letters-patent to be good.

'They also agree not to deny that the machine complained of in the complainant's bill, is an infringement on the patent granted to H. Burden, on August 4, 1840.

'If the complainants shall establish their title to the letters-patent aforesaid, the proper decree may be entered for the complainants, unless the defendants shall prove that the spike machine used by them, and complained of in the bill aforesaid, was constructed prior to the alleged application of H. Burden, made April 18, 1839, for letters-patent therefor, according to the provisions of the statute of the United States, 1839, ch. 88, sec. 7; or was the result of an independent, original invention, prior in time to the invention of the said Burden; in either of which cases the proper decree shall be entered for defendants.'

The only question presented for our consideration on the stipulation, is, whether the machine employed by the appellees was constructed prior to the 18th of April, 1839, when Burden made application at the patent office, for his patent.

The machine complained of was built by Richard Savary, for the Boston Iron Company, in the spring of 1839, and obtained, by the appellees, by assignment. Savary was the patentee of a machine to make ship and boat-spikes, and, at the suggestion of the agents of the Boston Iron Company, added an attachment of an apparatus to make a hook-head to spikes; the process for making which, Savary deposes, he discovered in August, 1838. The time at which this apparatus was attached to the machine (substantially complete in its operative parts,) is the time when the machine complained of was 'constructed,' in the sense of the stipulation; it not being necessary that the machine should be geared and doing work. We are satisfied that it was set up, and subtantially finished, before the 18th of April, 1839, and, therefore, order the decree below to be affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Massachusetts, and was argued by counsel; on consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs.


text: Talk:Troy Iron and Nail Factory v. Odiorne/Opinion of the Court


text: Battin v. Taggert

title: Battin v. Taggert


text: Talk:Battin v. Taggert

title: Talk:Battin v. Taggert


text:
Battin v. Taggert/Opinion of the Court

THESE three cases were argued and decided together. They were brought up, by writ of error, from the circuit court of the United States for the eastern district of Pennsylvania.

On the 6th of October, 1843, Joseph Battin obtained a patent for a new and useful improvement in the machine for breaking and screening coal, which he defined, in his specification, as one in which the breaking and screening were effected simultaneously, by a set of breaking rollers, of a certain form, operating in connection with an assorting screen. After describing the machine, the claim was made as follows, namely:--Having thus fully described the nature and operation of my machine for breaking and screening coal, what I claim as new therein, and desire to secure, by letters-patent, is the manner in which I have arranged and combined with each other the breaking rollers and the screen; the respective parts being formed, and operating substantially, as herein set forth and made known.

JOSEPH BATTIN.

On the 20th of January, 1844, he took out another patent, for the addition of a third, or auxiliary roller, of smaller diameter than the two at first used, and placed above them, and claimed as follows:--

Having thus fully described the nature of my improvement, in the manner of combining and arranging the toothed rollers used in the machine for breaking coal, what I claim therein as new, and desire to secure by letters-patent, is the so forming and gearing of such rollers as that the teeth of one of them shall always be opposite to a space between the teeth in the other, whenever they are operating upon the article to be broken; the same being effected, substantially, in the manner herein set forth.

JOSEPH BATTIN.

A suit was brought by Battin against Clayton, in the circuit court for the eastern district of Pennsylvania, to recover damages for the infringement of the patent of October 6, 1843, when the court held that 'the patent being merely for the combination of machinery, it could neither be supported nor assailed by proof of the novelty of the parts.' The plaintiff thereupon submitted to a nonsuit; surrendered the patents of 1843 and 1844, and obtained a reissue of the patent of 1843, upon an amended specification. The patent of 1844 was not reissued.

The description of the machine and claim, in the reissued patent, concluded as follows, namely:--

By the construction and arrangement of the breaking rollers, it will be perceived that, as they rotate, the teeth constitute a series of progressive levers, which act on opposite sides of the lumps, and being placed so as not to coincide, snap or break the lumps between the points of pressure; this pressure gradually increasing until the separation is effected, that is, during the rotation, until the teeth reach a plane passing through the axis of the two rollers, and then the effect having been produced, the teeth recede to liberate the lumps, and thus avoid the further reduction of the material. This mechanical action of the rotary teeth is thus adapted to the frangible or brittle nature of coal, which is readily pulverized when subjected to a continued percussion or pressing action.

It will be obvious from the foregoing that the form and size of the teeth may be greatly varied, as well as the space between the periphery of the two rollers, without changing the principle or mode of operation of my invention, so long at the two rollers are geared together, and the teeth of one are in the rotation made to come opposite to, or in the space between, the teeth of the other, and vice vers a; space sufficient to hold the required size of lumps of coal, being left between the teeth of the two rollers when passing a plane which coincides with the axis of the two rollers.

What I claim, therefore, as my invention, and desire to secure by letters-patent, is the arrangement of the teeth on the two rollers, substantially as herein described, so that in their rotation the teeth of one shall come opposite the spaces between the teeth of the other, with sufficient space between to hold lumps of the required size, the rollers being so combined, by gearing, as to make them rotate in opposite directions; and, with the required velocities, to retain the relative position of the teeth of the two rollers, as described.

JOSEPH BATTIN.

At April term, 1850, Joseph Battin, as patentee, and Samuel Battin, as assignee, of an undivided half part, brought suits against the three parties named as defendants in error, in the caption of this report. The defendants pleaded not guilty, and the cause came up for trial, when the jury found a verdict for the plaintiff, for $800. Upon motion of the counsel for the defendants, a new trial was granted, the following reasons being filed:--

1. The court erred in deciding that the patent of September 4, 1849, was for the same invention as that claimed in the patent of October 6, 1843, and could be included in the reissued patent.

2. The court erred in deciding that the suits can be maintained in the name of Samuel Battin, as assignee under the assignment to him, of February, 1844.

3. The copy of the assignment from the patent-office, was illegally received in evidence for any purpose.

4. The court erred in permitting the plaintiff to amend his declaration, in a material matter of substance, without any condition, and without granting a continuance to the defendants, as requested.

5. Material evidence, on the part of the defendants, was excluded by the construction given to the defendants' notice of special matter, which, if received, would have produced a different result.

6. Important evidence was discovered when it was too late to give notice, and during the trial, which is set forth in the affidavit of John L. L. Morris, which was presented to the court.

7. The court erred, in the instruction given to the jury, as to the grounds upon which they should ascertain the actual damages.

8. The damages are excessive.

At October term, 1852, the cause came up again for trial, when the jury, under the instructions of the court, found a verdict for the defendants.

The bill of exceptions set forth the whole of the evidence, and the entire charge of Judge Kane to the jury.

The plaintiffs took exceptions to the charge, on the following grounds, namely:--

That the learned judge erred—

1. In the construction given by him to the patents and specifications of October, 1843, February, 1844, and September, 1849.

2. In ruling, as matter of law, that the patentee had given his invention to the public.

3. In construing the 13th section of the act of 1836, and the 7th section of the act of 1837.

4. In charging the jury that 'Mr. Battin's invention, as he now defines it, was in use for nearly six years before he claimed that it was his property. He had made it known as an unprotected element of the combination he patented in 1843. It was not till 1849, that he asserted any other right in it for himself than he conceded to everybody else. He cannot reclaim what he has thus given to the public.' And in not submitting to the jury the facts proved in regard to the origin and use of the invention.

5. In directing the jury that a description by the applicant for a patent of a machine, or a part of a machine, in his specification, unaccompanied by notice that he has rights in it as intentor, or that he desires to secure title to it as patentee, is a dedication of it to the public; and that such a dedication cannot be revoked after the machine has passed into public use, either by surrender and reissue, or otherwise.

6. In holding that the facts of this case are embraced in the foregoing propositions.

7. In not deciding that the patent of 4th September, 1849, is good and valid in law.

8. In directing the jury to find a verdict for the defendant.

It is difficult to explain the nature of some of these objections without setting forth the entire charge, which cannot be done. The following extracts, however, from the charge, appear to contain the ruling upon those points on which the decision of this court turned. The charge said:--

'It is said that the present defendants are using the apparatus described in this reissued patent, and that they should be mulcted in damages, accordingly. But there are two legal positions, of a general character, which appear to me to bar the plaintiff's right of recovery. They are these:--

'1. That a description by the applicant, for a patent of a machine, or a part of a machine, in his specification, unaccompanied by notice that he has rights in it as inventor, or that he desires to secure title to it as patentee, is a dedication of it to the public.

'2. That such a dedication cannot be revoked after the machine has passed into public use, either by surrender and reissue, or otherwise.

'The first of these propositions will hardly be disputed. If an inventor has a right at all to give up his invention to the world, there is no more unequivocal way of doing so than by publishing it on the records of the patent-office, and at the same time making no claim to it as his exclusive property. There is no need of a formal disclaimer where no claim can be implied; and the implication is all the other way, when, of several things described, one is claimed without the rest.

'The second proposition, also, seems to be susceptible of easy demonstration. Protection is given to an inventor, under the patent laws, as the consideration for his disclosing what was not known before, not as a tribute of civic gratitude for 'good deeds past.' He loses his right, if he allows his invention to become known before he patents it; and when he does patent it, he is required so to describe it, at the very outset, that others may not only know how to use it profitably after his patent shall have expired, but be able to distinguish it from other things while his patent is in force.'

And again:--

'Mr. Battin's invention, as he now defines it, was in use for nearly six years before he claimed that it was his property. He had made it known, as an unprotected element of the combination he patented, in 1843. It was not till 1849, that he asserted any other right in it for himself than he conceded to everybody else. He cannot reclaim what he has thus given to the public.

'For these reasons, we instruct you that your verdict, in each case, must be for the defendants.'

The cause was argued in this court by Mr. Keller and Mr. Dallas, for the plaintiffs in error, and by Mr. Sheppard, Mr. Mallery, and Mr. St. George T. Campbell, for the defendants in error.

The following were the points made by the counsel for the plaintiffs in error:--

1. That the court erred in charging, as will be found in the first and second propositions of the charge: 'That a description, by the applicant for a patent, of a machine, or a part of a machine, in his specification, unaccompanied by notice that he has rights in it as inventor, or that he desires to secure title to it as patentee, is a dedication of it to the public.' And 'that such a dedication cannot be revoked, after the machine has passed into public use, either by surrender, or reissue, or otherwise.'

2. That the error, in the foregoing propositions of the charge, involves error in the construction of the 13th section of the act of July 4, 1836, and in the construction of, and the force given to, the several patents put in evidence.

3. That the court erred in determining judicially, by the construction of the surrendered and cancelled patents, that the reissued patent of September, 1849, is not for the same invention intended to have been patented by the patent of October, 1843, instead of submitting the question, as matter of fact, to be determined by the jury.

4. That the court erred in ruling, as matter of law, that the patentee had dedicated or abandoned his invention to the public, instead of submitting it, as a ouestion of fact, to be determined by the jury.

The counsel for the defendants in error made the following points:--

1. The first patent (October 6, 1843,) was not for the breaking rollers, but for the combination of the breaking rollers and the screen.

2. If the patentee described the rollers and the screen, but did not claim them, it was a waiver of his rights (if any he had) therein, as inventor, and an abandonment of them, by operation of law, to public use.

3. If the original patent of 1843 was for the combination of the breaking rollers and the screen, and if the patentee, by describing the rollers, without claiming them, allowed them to go into public use, with a waiver of his rights, if he had any, it is submitted that he cannot, in 1849, reclaim the rollers.

The different claims were thus set forth:--

The want of sameness is evident on the face of the patents, and the repugnancy is manifest upon inspection and comparison.

Claim in original patent of October 6, 1843.

Having thus fully described the nature and operation of my machine for breaking and screening coal, what I claim as new therein, and desire to secure by letters-patent, is, the manner in which I have arranged and combined with each other the breaking rollers and the screen; the respective parts being formed and operating substantially as herein set forth and made known.

Claim in the patent of February 12, 1844, which was subsequently surrendered, cancelled, and not reissued.

Having thus fully described the nature of my improvement in the manner of combining and arranging the toothed rollers used in the machine for breaking coals, what I claim therein as new, and desire to secure by letters-patent, is the so forming and gearing of such rollers as that the teeth of one of them shall always be opposite to a space between the teeth in the other, whenever they are operating upon the article to be broken, the same being effected substantially in the manner herein set forth.

Claim in the reissued patent of Sept. 4, 1849.

What I claim, therefore, as my invention, and desire to secure, by letters-patent, is the arrangement of the teeth of the rollers, substantially as herein described, so that in their rotation the teeth of one shall come opposite the space between the teeth of the others, with sufficient space between to hold lumps of the required size, the rollers being so combined by gearing as to make them rotate in opposite directions, and with the required velocities to retain the relative position of the teeth of the two rollers, as described.

Here the reissued patent, instead of being for the same invention as the original patent, was for an invention patented in letters-patent issued after the original patent, and which have been surrendered, cancelled, and not reissued. The patentee having surrendered that patent, cannot include its subject-matter in the reissue of a prior patent.

Mr. Justice McLEAN delivered the opinion of the court.

This case is before us, on a writ of error to the circuit court for the eastern district of Pennsylvania.

The action was brought for the infringement of a patent. The jury, under the instructions of the court, found a verdict for the defendant. Exceptions were taken to the rulings of the court, which present the points of law for consideration.

On the 6th of October, 1843, Joseph Battin obtained a patent for the invention of a new and useful improvement in the machine for breaking and screening coal.

After describing the different parts of the machine, he sums up by saying: having thus fully described the nature and operation of my machine for breaking and screening coal, what I claim as new therein, and desire to secure by letters-patent, is, the manner in which I have arranged and combined with each other the breaking rollers and the screen; the respective parts being formed and operating substantially as herein set forth and made known.

An improvement to the above machine, by adding an auxiliary roller, was patented to Battin, 20th January, 1844. And on the 12th of February, 1844, another patent was granted to him, for a new and useful improvement in the machine for breaking coal.

In his specification, he says that he had made a new and useful improvement, in the manner of combining and arranging the toothed rollers used in the machine for breaking coal, which rollers, as combined and arranged by me, are described as follows, in the specification attached to letters-patent, for a machine for the effecting simultaneously the breaking and screening of coal, granted to me under date of the 6th day of October, 1843: The breaking part of my machine consists of two rollers of cast-iron, the peripheries of which are provided with teeth so placed as that, in the revolution of the rollers, the teeth of each of them shall stand opposite to the spaces formed by two contiguous teeth on the opposite roller. These rollers are geared together, in order to preserve the same relative position.

In the above-named letters he says: the manner of arranging and combining the toothed rollers was not made the subject of a claim, the said patent having been obtained for the combining of a roller-breaking machine, with a screen for separating the coal into the different sizes required; but as the breaking rollers, so formed and arranged and combined, are applicable to the ordinary cylinder-breaking machine, when not used in combination with a screen; and as I have found, by continued experiment, that such rollers constitute a real improvement in any breaking machine, I have determined to secure to myself the benefit of such improvement, in a distinct and separate patent therefor. Rollers for the breaking of stone, of ores, of coal, of corn, and of other substances, have been frequently constructed, and are well known, &c.

And, he adds, having thus fully described the nature of my improvement, in the manner of combining and arranging the toothed rollers used in the machine for breaking coal, what I claim therein as new, and desire to secure by letters-patent, is, the so forming and gearing of such rollers, as that the teeth of one of them shall always be opposite to a space between the teeth in the other, whenever they are operating upon the article to be broken; the same being effected substantially in the manner herein set forth.

And afterwards, on the 4th of September, 1849, the said Joseph Battin obtained a patent, in which it is stated that he had invented a new and useful machine for breaking coal, for which letters-patent were granted to him, dated October 6, 1843, to which was added an additional improvement, dated 20th January, 1844, and, said letters having been surrendered by him, the same have been cancelled, and new letters-patent have been ordered to issue to him, on an amended specification. He also surrendered the patent granted to him the 12th of February, 1844, for an improved machine for breaking coal, which patent is hereby cancelled, but not reissued, &c.

After describing the invention, he sums up by saying: 'What I claim, therefore, as my invention, and desire to secure by letters-patent, is the arrangement of the teenth on the two rollers, substantially as herein described, so that in their relation the teenth of one shall come opposite the spaces between the teeth of the other, with sufficient space between to hold lumps of the required size, the rollers being so combined in gearing as to make them rotate in opposite directions, and, with the required velocities, to retain the relative position of the teeth of the two rollers, as described.'

In the 6th section of the patent act of 1836, it is declared that, 'before any inventor shall receive a patent, he shall deliver a written description of his invention, in such full, clear, and exact terms, as to enable any person skilled in the art or science to which it appertains, to make and construct the same; and, in case of any machine, he shall fully explain the principle, and the several modes of the application of the machine, so that it may be distinguished from other inventions; and shall particularly specify and point out the part, improvement, or combination, which he claims as his own invention or discovery.'

And, by the 13th section of the same act, it is provided, 'that when a patent shall be inoperative or invalid, by reason of a defective or insufficient description or specification, or by reason of the patentee claiming in his specification, as his own invention, more than he had or shall have a right to claim as new, if the error has or shall have arisen by inadvertency, accident, or mistake, and without any fraudulent or deceptive intention, it shall be lawful for the commissioner, upon the surrender to him of such patent, &c., to cause a new patent to be issued to the said inventor, for the same invention, for the residue of the period then unexpired, for which the original patent was granted, in accordance with the patentee's corrected description and specification. And the patent so issued shall have the same effect and operation in law, on the trial of all actions hereafter commenced, for causes subsequently accruing, as though the same had been originally filed in such corrected form before the issuing of the original patent.'

In his charge to the jury, the district judge said: 'The case of Battin v. Clayton, which was before us some time ago, grew out of an alleged infraction of this patent, of 1843. We held, on the trial of that case, that the patent being merely for the combination of machinery, it could neither be supported nor assailed by proof of the novelty, or want of novelty, of the parts. The patent was thereupon surrendered, and a new one issued, on the 4th of September, 1849, under an amended specification, which described essentially the same machine as the former one did, but claimed, as the thing invented, the breaking apparatus only.'

And, he remarks: 'It is said that the present defendants are using the apparatus described in this reissued patent, and that they should be mulcted in damages, accordingly.' But there are two legal positions, of a general character, which appear to me to bar the plaintiff's right of recovery. They are these:--

1. That a description, by the applicant, for a patent of a machine, or a part of a machine, in his specification, unaccompanied by notice that he has rights in it as inventor, or that he desires to secure title to it as a patentee, is a dedication of it to the public.

2. That such a dedication cannot be revoked, after the machine has passed into public use, either by surrender and reissue, or otherwise.

The above instructions, we think, were erroneous.

Whether the defect be in the specifications or in the claim, under the 13th section above cited, the patentee may surrender his patent, and, by an amended specification or claim, cure the defect. The reissued patent must be for the same invention, substantially, though it be described in terms more precise and accurate than in the first patent. Under such circumstances, a new and different invention cannot be claimed. But where the specification or claim is made so vaguely as to be inoperative and invalid, yet an amendment may give to it validity, and protect the rights of the patentee against all subsequent infringements.

So strongly was this remedy of the patentee recommended, by a sense of justice and of policy, that this court, in the case of Grant v. Raymond, 6 Pet. 218, sustained a reissued and corrected patent, before any legislative provision was made on the subject. In that case, the chief justice said: 'It will not be pretended that this question is free from difficulty. But the executive departments, it is understood, have acted on the construction adopted by the circuit court, and have considered it as settled. We would not willingly disregard the settled practice, in a case where we are not satisfied it is contrary to law, and where we are satisfied it is required by justice and good faith.' The same principle was sanctioned in the case of Shaw v. Cooper, 7 Pet. 310.

How much stronger is a case under the statute, which secures the rights of the patentee by a surrender, and declares the effect of the reissued and corrected patent? By the defects provided for in the statute, nothing passes to the public from the specifications or claims, within the scope of the patentee's invention. And this may be ascertained by the language he uses.

In the case of Stimpson v. The West Chester Railroad Company, 4 How. 380, it was held, that 'where a defective patent had been surrendered, and a new one taken out, and the patentee brought an action for a violation of his patent right, laying the infringement at a date subsequent to that of the reissued patent, proof of the use of the thing patented, during the interval between the original and renewed patents, will not defeat the action.' In the same case it was also held, that the proceeding before the commissioner, in the surrender and reissue of a patent, is not open for investigation, except on the ground of fraud.

The patent of 1843 was not surrendered on the obtainment of the patent of 1844. That was intended to be a new invention of arranging and combining the toothed rollers, which, the patentee says, was not made the subject of a claim in the patent of 1843. The patent of 1844 was cancelled, but not reissued, when the patent of 1849 was issued. At that time, the patent of 1843, and the improvement thereon, dated January 20, 1844, were surrendered and cancelled, and new letterspatent were issued on an amended specification.

The cause of the surrender of the patent of 1843, as stated in the charge to the jury, was the ruling of the court in the case of Battin v. Clayton, and that the amended patent of 1849 was consequently obtained. That ruling is not now before us, nor is it necessary to inquire whether the patent of 1843, on the specifications and claim, was sustainable. The plaintiff, by a surrender of that patent, and the procurement of the patent of 1849 with amended specifications, abandoned his first patent, and relied wholly on the one reissued. The claim and specifications in this patent, as amendatory of the first, were within the 13th section of the act of 1836. It is said, with entire accuracy, in the charge, in regard to the amended specification of the patent of 1849, that it 'described essentially the same machine as the former one did, but claimed, as the thing invented, the breaking apparatus only.' And this the patentee had a right to do. He had a right to restrict or enlarge his claim, so as to give it validity, and to effectuate his invention.

In the argument, the counsel very properly considered the patent of 1844 as not in the case. It was designed to secure a new combination, not included in the first patent; and as the patent of 1844 was surrendered and cancelled, and not reissued, it being equally disconnected with the patent of 1843, and the reissued and corrected patent of 1849, it can have no effect on the claim of the plaintiff.

We think the court also erred in saying to the jury, 'We instruct you that your verdict, in each case, must be for the defendants.'

This, as well as the two instructions above noticed, took from the jury facts which it was their province to examine and determine. It was the right of the jury to determine, from the facts in the case, whether the specifications, including the claim, were so precise as to enable any person skilled in the structure of machines, to make the one described. This the statute requires, and of this the jury are to judge.

The jury are also to judge of the novelty of the invention, and whether the renewed patent is for the same invention as the original patent; and they are to determine whether the invention has been abandoned to the public. There are other questions of fact which come within the province of a jury; such as the identity of the machine used by the defendant with that of the plaintiff's, or whether they have been constructed and act on the same principle.

The judgment is reversed, and the cause is remanded to the circuit court for further proceedings.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed, with costs; and that this cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo.

title: Battin v. Taggert/Opinion of the Court


text: Talk:Battin v. Taggert/Opinion of the Court


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United States v. Sixty-Seven Packages of Dry Goods

THIS case was brought up, by writ of error, from the circuit court of the United States for the eastern district of Louisiana.

A libel of information was filed in the district court, by the collector of the port of New Orleans, on behalf of himself and the United States, for the condemnation and forfeiture of sixty-seven packages of goods, on account of an alleged fraud upon the revenue, charging, among other things, in the information, that the goods were entered at the custom-house, upon the production of an invoice, in which they were invoiced at a less sum than the actual cost thereof at the place of exportation, with a design to evade the duties.

Jules Levois, of New Orleans, filed a claim to the goods, and the cause came up for trial in March, 1850, when the jury, under the instructions of the court, found a verdict for the claimant.

A bill of exceptions was taken by Mr. Hunton, district attorney of the United States, which, being short, is here inserted, as follows:--

Be it remembered, that on the trial of this cause the plaintiff offered in evidence the following documents, numbered as follows:--

No. 1. Warehouse entry of five packages with extract invoice.

No. 2. Import entry of sixty-two packages.

No. 3. Report of United States appraisers.

No. 4. United States appraiser's valuation.

No. 5. Merchant appraiser's _____ do.

No. 6. Copy of interrogatories propounded by appraisers to P. D. Duval.

No. 7. Call for letters.

No. 8. Call for reply to interrogatories.

No. 9. Letter from Mr. Duval to United States appraisers.

No. 10. Paper found by appraisers in case No. 81.

No. 11. Invoice in which the entries were made.

The following witnesses were introduced:--

R. J. Canfield, who stated that he was one of the appraisers in the custom-house of New Orleans, proved the several documents offered in evidence; that P. D. Duval, the partner or agent of claimant, made the entry at the custom-house; his refusal to answer the interrogatories propounded; stated that from his experience as appraiser, he was familiar with the valuation and cost of such goods as were contained in the invoice on which the entries were made; stated that the goods were invoiced at less than the actual cost, as he believed, and at less than their actual value in the foreign market from whence they were imported, to the extent shown by the valuation offered in evidence; that he had made a particular examination of the several packages seized. He proved that the paper marked No. 10 was found by the appraisers, in case No. 81, and that the same articles contained in that paper were invoiced at

Philip Simms, A. Duthel, E. D. Hyde, Mr. Letchford, were also introduced as witnesses on the part of the United States, all of whom were importing merchants in the city of New Orleans, and had imported like goods as those seized, from Liverpool, about the same time; some had received importations by the same ship that brought out those in controversy; all of them confirmed the merchants' valuation, as shown in paper No. 5, and concurred in saying that the said goods were invoiced at least twenty-five per centum lower than actual cost or value in the foreign market. It was proven that cotton goods had advanced during the spring and summer of 1849. Mr. Rifflard said, that all of the goods in the invoice were invoiced at less than the actual value; some of them, however, not more than ten or fifteen per centum, in his judgment. And thereupon, the court instructed the jury as follows, namely:--

1. That the 66th section of the act of congress of the 2d March, 1799, in so far as it imposes the penalty of forfeiture of any goods, wares, and merchandise, of which entry shall have been made in the office of a collector, and which shall not be invoiced according to the actual cost thereof, is inconsistent with, and repugnant to, the 13th and 15th sections of the act of 1st March, 1823, imposing a penalty of additional duties on goods entered under fraudulent invoice; and in so far as said inconsistency and repugnancy existed, the said act of 1799 was repealed by said act of 1823.

2. That the said 66th section of the act of congress of the 2d March, 1799, was, to the same extent as aforesaid, repugnant to, and inconsistent with, the 17th section of the act of 30th August, 1842, and is, to the same extent, repealed by said act of 1842.

3. That the proceedings directed and authorized by the 17th section of the act of 1843, having been proved by the United States to have taken place against the merchandise therein alleged to be forfeited to the government, it was the duty of the collector to have levied and collected the additional duty which, by said 17th section, is imposed as a penalty on goods which shall be appraised, estimated, and ascertained to exceed the invoice value; that said penalty is inconsistent with, and repugnant to, the penalty of forfeitures, as imposed by any preceding law of congress; that the said section of said act of 1842, and the other sections of said last-named act, do, by implication, repeal all previous provisions of all acts of congress imposing the penalty of forfeiture of merchandise which is falsely valued in an invoice, or of which the actual cost has not been stated in the invoice under which their entry is made.

And also instructed the jury that there was at present no law in force authorizing the forfeiture of the said goods for the causes set forth in the libel. To which instructions and charge, the United States, by their attorney, except, and pray that this bill may be signed, sealed, and entered of record; which is done.

(Signed) THEO. H. McCALEB, [Seal.] United States Judge.

In May, 1853, the cause came on for trial before the circuit court of the United States, when the judgment of the district court was affirmed.

A writ of error brought the case up to this court.

It was argued by Mr. Cushing (attorney-general) for the United States. No counsel appeared for the appellee.

Mr. Cushing reviewed the provisions of the act of March 1, 1823, 13th and 15th sections, (3 Stat. at Large, 734, ch. 2,) and the 17th section of the act of 30th August, 1842, (5 Stat. at Large, 564, ch. 270,) and then proceeded with the argument.

Such are the provisions of the statutes relied on as repealing, by implication, the 66th section of the act of 1799.

It is to be noted that the said 66th section enacts the forfeiture of the goods, 'or the value thereof,' of which entry shall have been made in the collector's office, 'with design to evade the duties thereupon, or any part thereof.' But whether the collector shall or shall not seize and prosecute the goods as forfeited, or shall collect and receive the duties arising upon the valuation, when ascertained by two reputable merchants to be appointed for that purpose, as required in that 66th section, are matters left to the judgment and discretion of the collector. If he retains the goods, and prosecutes as for a forfeiture thereof, or the value thereof, he acts at his peril; it is his own act, for which he will be personally responsible in damages, if he misjudges and seizes, and prosecutes by wrong, and without probable cause, upon an allegation of 'design to evade the duties thereupon.' The quo animo with which the entry of the goods, not invoiced according to their actual cost, shall have been made, the design to evade the duties, constitute the offence for which the forfeiture of the goods or their value is declared in this 66th section. The hazard which a collector must incur personally, by prosecuting for a forfeiture, is not forefended by the appraisement made by two reputable merchants, because 'such appraisement shall not be construed to exclude other proof upon the trial of the actual and real cost of the said goods at the place of exportation.' Moreover, the two merchants are not to inquire as to the 'design to evade the duties.'

By this 66th section, the duties are to be paid according to such valuation as shall be ascertained, not according to the invoiced value, if the collector does not deem it expedient to prosecute for a forfeiture. So, under the acts of 1823 and 1842, relied upon, the collector has an election to prosecute for a forfeiture or not, upon allegation of 'design to evade the duties.' If he elects not so to prosecute, then he must have collected under the act of 1823, or under the act of 1842, the additional duty of fifty per centum.

So the 9th section of the act of May, 19, 1828, (4 Stat. at Large, 274, ch. 55,) imposed an additional duty of fifty per centum, if the appraised value of the goods at the time purchased, and place from which they were imported into the United States, exceed the invoiced value by ten per centum. Yet this statute did not take away the election of the collector to prosecute for a forfeiture of the goods, or their value, under the 66th section of the act of 1799, if, in his opinion, the goods had been entered at the custom-house, upon an invoice undervaluing them, 'with design to evade the duties thereupon, or any part thereof.'

In the act of 30th July, 1846, (9 Stat. at Large, 43, ch. 74, sec. 8,) it is made the duty of the collector to cause the dutiable value of imports 'to be appraised and estimated and ascertained in accordance with the provisions of existing laws; and if the appraised value thereof should exceed, by ten per centum or more, the value so declared on the entry, then, in addition to the duties imposed by law on the same, there shall be levied, collected, and paid, a duty of twenty per centum ad valorem on such appraised value.' This act does not take away the election of the collector to prosecute for a forfeiture of the goods, or their value, under the 66th section of the act of 1799, if in his judgment he can sustain the charge, that the goods were entered at an undervaluation, 'with design to evade the duties thereupon, or any part thereof.'

The statutes which impose an additional (or penal) duty, in case the estimated and ascertained value of the goods exceeds by a certain per centum their value, as declared in the entry with the collector, do not require, as a prerequisite to the collection of such additional (or penal) duty, that the entry shall have been made 'with design to evade the duties thereupon.' The 66th section of the act of 1799, defines a higher offence against the revenue laws; it requires that the entry of the goods shall have been made 'with design to evade the duties thereupon,' and for such design inflicts the forfeiture of the goods, 'or the value thereof,' if the collector shall prosecute for and establish such design.

In the case of Wood v. The United States, January term, 1842, (16 Pet. 363-366,) the question of the repeal of the 66th section of the act of 1799, by implication, arising out of subsequent statutes, is fully discussed, and every position taken by the judge of the district court is, in effect, negatived. It is useless to say more in this case, than that the principles decided in Wood v. The United States are applicable to the acts of 1842 and 1846, although these have been passed subsequently to that decision of the supreme court.

There is no positive repugnancy between the provisions of the 66th section of the act of 1799, and those of the subsequent laws. These new laws are merely affirmative, cumulative, and auxiliary to the 66th section of the act of 1799; not inconsistent with a forfeiture of the goods or their value, where an entry shall have been made in the office of the collector 'with design to evade the duties thereupon, or any part thereof.' There is nothing in any of the statues, subsequent to the act of 1799, to compel the collector to demand and receive the duties, with the additional or penal duties, in cases where goods are entered for duty at an undervalue, 'with design to evade the duties thereupon, or any part thereof;' nor to inhibit the collector from prosecuting for the forfeiture of the goods, or their value.

'The provision in the 66th section is intended to suppress fraud upon the revenue. The other acts are designed to be auxiliary to the same purpose. There is no repugnance between the provisions; and to construe the latter, as repealing the former, would be to construe provisions to aid in the detection of fraud in such a manner as to promote fraud, by cutting down provisions of a far more general and important character, and essential to the security of the revenue.' Wood v. The United States, 16 Pet. 365, 366.

Mr. Justice NELSON delivered the opinion of the court.


text: Talk:United States v. Sixty-Seven Packages of Dry Goods