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Dunbar v. Myers/Opinion of the Court

Inventions, in order that the inventors may be entitled to patents for the same, must be new and useful; and the better opinion is, that the improvement must be of such a character that it involved invention to make it, as the Patent Act confers no right to obtain a patent except to a person who has invented or discovered some new and useful art, machine, manufacture, or composition of matter, or some new and useful improvement in one or the other of those described subject-matters.

Sufficient appears to show that a patent in due form was granted to John Myers and Robert G. Eunson, on the 23d of May, 1854, for an alleged invention, described in the specification as relating to certain new and useful improvements in machines for sawing lumber into thin stuff for the backs of mirrors and picture-frames, and other purposes for which thin stuff is used. Due application was subsequently made for an extension; and the record shows that the patent was regularly extended for the further term of seven years from the expiration of the first term.

Subsequent to the extension of the patent, one of the patentees, to wit, Robert G. Eunson, sold and assigned all his right, title, and interest in the same, and the extension thereof, to Eugene S. Eunson, one of the complainants, who instituted the present suit in the court below. Pending the suit, the other complainant departed this life; and Margaret Myers, his sole executrix, was duly admitted in his stead to prosecute the suit as co-complainant with the assignee of the other half-interest in the extended patent. Infringement is charged, and that the respondents have made large gains and profits by the unlawful use of the patented invention; and the complainants pray for an account and for an injunction.

Process having been issued and service made, the respondents appeared and filed an answer, in which they set up in substance and effect the following defences: 1. That the invention is of no utility or value. 2. That the patentees are not the original and first inventors of the alleged improvement. 3. That the alleged improvement was well known and had been in public use long prior to the supposed invention by the patentees. 4. That knowledge of such prior public use was possessed by the several persons whose names and places of residence are set forth in the answer. 5. That the patented improvement, years before the application for the patent was executed, was fully described in the respective printed publications mentioned in the answer filed by the respondents.

Minute and accurate description of the patented machine is given in the drawings, and the specification divides the invention into four separate features, as follows: 1. That it consists in the employment or use of deflecting plates,-one or two,-placed at the sides of a circular saw, for the purpose of enlarging or expanding the saw kerf to prevent the sawed stuff from coming in contact with the sides of the saw and binding the edge of the same near the teeth. Deflecting plates of the kind also allow the saw to be stiffened by a proper plate, so that a thin veneer saw may be employed, which will cause but a small waste of stuff in sawing. 2. That the invention consists in the employment or use of elastic claimps attached to the ordinary adjustable and elastic beds, between which the stuff is fed to the saw. Clamps of the kind have an elasticity independent of the beds, and compensate for the varying thickness of the different pieces of stuff to be sawed, by holding firmly the extreme end of the stuff, and keeping it in proper position to the saw, however much the elastic bed may be expanded by a succeeding piece of stuff of greater thickness. 3. That the invention also consists in the employment or use of knives or cutters secured to the adjustable beds, and so arranged as to cut or smooth off the rough and projecting sides of the stuff at the ends, making it of uniform thickness. 4. That it also consists in the combination of an adjustable bed and circular saw, arranged as shown in the specification.

Such a machine necessarily requires a frame, and the patentees state that the frame of the machine described in the specification may be constructed in any proper manner, and that the circular saw is placed on a shaft which runs transversely across the front of the frame.

They employ a circular saw, made of thin steel-plate, such as is used for sawing veneers, on one side of which is a circular plate secured by rivets or screws, the plate being less in diameter than the saw, which has the effect to stiffen the plate of the saw, and to enable the operator to use a thinner saw than he would otherwise be able to do.

Two deflecting plates are also employed by the patentees, one on each side of the saw; the one on the same side of the saw with the stiffening plate covers the upper part of that plate, the outer end of which projects further from the saw than the inner end,-the deflecting plate on the other side of the saw being of the same description, except that it is rather smaller in diameter, and that it projects from the saw at about an equal distance at both ends. They are arranged one on each side of the saw, and are attached to the frame by means of bolts, rivets, or screws.

Two feed-roller beds are placed vertically in the back part of the frame parallel with each other, both of which are made adjustable by screw-rods which bear against the sides of the beds, the screw-rods of each bed being operated simulataneously by means of chains passing round small toothed wheels at the ends of the screw-rods.

Two cranks are also employed, one of which is attached to one of the toothed wheels of each bed. Lateral elasticity is given to the beds by means of india-rubber or other springs attached to them in a proper manner.

Four feed-rollers are employed, two of which are placed in each bed, and the specification states that the feed-rollers project some distance beyond the inner edges of the beds. Clamps, two in number, are attached to the inner ends of the beds, and at the back part of each clamp there are two journals, one at the top and one at the bottom, fitted in boxes which work or slide in recesses in the top and bottom pieces of the beds.

Set-screws are also provided, which pass transversely through the top and bottom pieces of each bed, the inner ends of which bear against india-rubber springs placed directly back of the boxes.

There are two of these rubber springs at the top of the clamps, one to each clamp, and it appears that they are placed between the clamps and the set-screws, passing transversely through the top pieces of the beds. Hence it follows that the clamps may be made to vibrate laterally; but it also appears that two stops are provided, which pass through the top pieces of the beds, one through each top piece, for the purpose of limiting and regulating the extent of such lateral vibration.

Knives or cutters are also provided, which are placed vertically, one in each bed; but it is unnecessary to enter into those details, as it is not pretended that the respondents have infringed the third claim of the patent.

Motion is given to the feed-rollers by gearing, which is shown in the drawings at the lower part of the rollers.

Means are also provided for adjusting the beds relatively to the saw, so that the boards or other lumber may be sawed into the desired thickness. Either side of the saw may be made the line side in the operation of sawing by the adjustment of the proper roller-bed, so as to prevent expansion or contraction.

Stuff to be sawed, whatever it may be, is placed between the feed-rollers in the beds, and, motion being communicated to the saw and rollers, the stuff is fed forward towards the saw and is cut by it, the two pieces being prevented from bearing against the sides of the saw by means of the deflecting plates. When the outer end of the material to be sawed has passed the inner feed-roller, the clamps bear against the board and hold it in a proper relative position to the saw, so that if another board to be sawed is placed between the feed-rollers it will advance and press forward the board first placed between the rollers, and if the last board is thicker than the preceding one the only effect is that it acts upon the beds and forces the elastic one farther from the permanent one without affecting the clamps, which, owing to the springs, have an independent elasticity.

Tested by the example given in the specification, as illustrating the mode of operation, it is plain that either side of the saw may be made the line side in the practical working of the machine. In the example put by the patentees, they assume that the roller-bed in line with the deflecting plate, which is on the same side of the saw as the stiffening plate, is permanently fixed at one-quarter of an inch from the side of the saw, and that the opposite bed being elastic, the side of the saw on which the thin strip passes is the line side during the operation of sawing; but the patentees state that the opposite side of the saw may be made the line side by permanently fixing the opposite roller-bed and by allowing the other one to remain elastic, and that by these improvements they are enabled to use a thin veneer saw, and to keep the stuff to be sawed in a proper relation to the saw, even when varying in thickness.

Three of the claims of the patent, it is charged, are infringed by the respondents; to wit, the first, second, and third. They are as follows: 1. The employment or use of the deflecting plates, one or both, placed at the sides of the saw, as shown, for the purpose of preventing the sawed stuff from bearing against the sides of the saw and expanding the saw kerf, and also for the purpose of allowing a thin veneer saw to be stiffened by plates, one or two, as desired. 2. They claim the employment or use of the clamps arranged as shown, or in any equivalent way, so that they may have a lateral elastic movement, independant of the roller-beds to which the clamps are attached, for the purpose of compensating for the varying thickness of different pieces of stuff, and to keep the same in a proper relative position to the saw. 4. They also claim 'the employment of an adjustable bed with clamps, as described, in combination with the saw when the saw has a stiffening plate in line with the adjustable bed, by which the stiffened or rounded side of the saw is made the line side of the same for practical operation.'

Prior to the hearing, the complainants filed a petition in the Patent Office, in which they state that the patentees, through inadvertence, accident, and mistake, and without any fraudulent or deceptive intention, claimed more in their specification than that of which they were the original inventors. Pursuant to that petition, they were permitted to enter a disclaimer in two respects: 1. To amend the first claim by striking out the words 'one or' before the word 'both,' so that the claim includes only the employment and use of the saw with both of the deflecting plates, when both of the plates are used at one and the same time, in the manner and for the purposes described. 2. They also made a corresponding amendment in the specification, limiting the description of the invention to the employment of the two deflecting plates placed at the sides of the circular saw, disclaiming the use of one plate only, for the purposes set forth in the specification.

Proofs were taken; and, both parties having been heard, the court entered a decretal order in favor of the complainants, and referred the cause to a master. Due report was made by the master, to which both parties excepted; but the court overruled the exceptions, and having confirmed the report, entered a final decree in favor of the complainants for the sum of $9,120.94, being the gains and profits made by the respondents, as ascertained by the master. Both parties appealed to this court.

Eight errors are assigned by the respondents, two of which only will be examined: 1. That the court erred in holding that there was invention in using two deflecting plates when the use of one was well known. 2. That the court erred in holding that the respondents infringed the letters-patent granted to the complainants.

Viewed in the light of the disclaimer, it is clear that the first claim of the patent is for the employment or use of two deflecting plates, one being placed on each side of the saw, for the purpose of preventing the sawed stuff from bearing against the sides of the saw, and to allow a thin veneer saw to be stiffened by the plate employed or used for that purpose; and it is equally clear that the employment or use of one deflecting plate for the purpose was well known and in public use long before the original patentees in this case applied for a patent.

Conclusive evidence to support that proposition is found in the disclaimer filed by the complainants pending the suit, in addition to the other evidence in the case, which is abundantly sufficient to establish the proposition, even without the disclaimer. Authority to make such a disclaimer is beyond question, if it be made in writing, and is duly attested and recorded in the Patent Office. When so made, attested, and recorded, it becomes a part of the original specification to the extent of the interest of those who make it; but the provision is that it shall not affect any action pending at the time of its being filed, except so far as may relate to the question of unreasonable neglect or delay in filing it. 16 Stat. 206; Rev. Stat. sect. 4917.

Pending suits may proceed, but the disclaimer, when recorded, becomes a part of the original specification, and must be taken into account in construing the patent, and in ascertaining the rights of the parties to the suit, unless it appears that the effect of the disclaimer is to enlarge the nature of the invention, and prejudice the rights of the respondents. Perry v. Skinner, 1 Webster, Pat. Cas. 253; Ralston v. Smith, 9 C. B. N. S. 117; S.C.. 11 id. 471; Smith v. Nichols, 21 Wall. 117.

Where the effect of the disclaimer is to diminish the claims of the patent without prejudicing the rights of the respondent, the suit may proceed, notwithstanding the disclaimer, it being held that the disclaimer, under such circumstances, does not affect the pending suit, except to limit and qualify the claims of the patent, and in respect to the question of unreasonable neglect or delay in filing the same. Unreasonable delay not having been suggested, the only effect of the disclaimer in such a case is to limit the nature of the invention secured by the patent, and to diminish the claims of the patent as set forth in the specification. Guyon v. Serrell, 1 Blatchf. 245; Hall v. Wiles, 2 id. 198.

Matters properly disclaimed cease to be a part of the invention; and it follows that the construction of the patent must be the same as it would be if such matters had never been included in the description of the invention or the claims of the specification. 16 Stat. 206; Seed v. Higgins, 8 El. & Bl. 767; Higgins v. Seed, id. 763; O'Reilly v. Morse, 15 How. 121; Taylor v. Archer, 8 Blatchf. 317.

Tested by these considerations, it is clear that the first claim of the patent is for the employment or use of two deflecting plates, one placed on each side of the saw, for the purposes therein set forth and described. Circular plates attached to circular saws, secured by rivets or screws, for the purpose of strengthening the central portion of the saw-plate, and sometimes called stiffening plates, are old devices which have been known to the operators of the circular saw ever since the circular saw came into general use for sawing shingles, laths, and clapboards. Nor is any argument necessary to show that the employment of one deflecting plate covering the upper part of the stiffening plate on the same side of the circular saw is old, as that is proved by the evidence, conceded in argument, and alleged in the disclaimer filed by the complainants.

Concede that, and still it is insisted by the complainants that they employ or use two deflecting plates, one placed on each side of the saw, and that the employment or use of the additional deflecting plate on the opposite side of the saw is a new and useful improvement in the operation of the machine, for which the patentees, whom they represent, were justly entitled to the patent set forth in the bill of complaint.

Operators of machines for sawing lumber, whether with circular or vertical saws, have long known that some means were useful, if not absolutely necessary, to spread the two parts of the lumber behind the saw, so as to prevent the lumber as sawed from binding against the two faces of the saw to such an extent as to endanger the saw and impede the progress of the work without an increase of the motive power. Wedges, in early times, were used by the operator to accomplish the object, and various other devices were employed before the deflecting plate came into use, which, it seems, has had the effect to supersede all other devices previously known to effect the described function. Such machines for sawing lumber, constructed with one deflecting plate, were well known and in general use years before the patentees in this case made their application for a patent; and the evidence satisfies the court that for most purposes the machine will operate as well and as successfully with one deflecting plate as with two. Two deflecting plates may be better than one, where it is desired to split thin stuff into two parts of equal thickness, as in that case the saw kerf may be enlarged by deflecting the stuff on each side of the saw.

Grant that two such plates are in certain cases better than one used alone, still the question arises whether it involves any invention to add the second plate to a machine already constructed with one plate. Beyond doubt, every operator who had used a machine having one deflecting plate knew full well what the function was that the deflecting plate was designed to accomplish, and the reasons for placing it at the side of the saw are obvious to the understanding of every one who ever witnessed the operation of a circular saw. Ordinary mechanics know how to use bolts, rivets, and screws, and it is obvious that any one knowing how to use such devices would know how to arrange a deflecting plate at one side of a circular saw which had such a device properly arranged on the other side, it being conceded that both deflecting plates are constructed and arranged precisely alike, except that one is placed on one side of the saw and the other on the opposite side. Both are attached to the frame in the same manner; nor is it shown, either in the specification or drawings, that there is any thing peculiar in the means employed for arranging the deflecting plates at the sides of the saw, or in attaching the same to the frame. Both are alike, except that the outer end of the one on the same side as the strengthening plate projects farther from the saw than the inner end, and that the other is rather smaller in diameter, and that the ends project about an equal distance from the saw.

Expert witnesses were examined upon the point, whether it required invention to attach a second deflecting plate to such a machine; and one of the most intelligent and learned of his class testified to the effect that the deflecting plate on one side of the complainant's machine performs precisely the same duty as the plate upon the other side of the saw, and that it required no invention to apply a second plate in such a case to perform exactly the same duty as the one previously applied on the opposite side of the saw,-that such second application is a mere duplication of the first; and he supports his conclusion by apt examples, which are both persuasive and convincing.

Persons seeking redress for the unlawful use of letters-patent must allege and prove that they, or those under whom they claim, are the original and first inventors of the alleged improvement, and that the letters-patent have been infringed by the party against whom the suit is brought. Prima facie support to the first requirement is derived from the patent, if it is introduced in evidence and is in due form, provided the alleged improvement is one which in its nature is patentable. Evidence to overcome that presumption, however, is always admissible, if due notice is given by the opposite party, as required by law; and the question is now well settled, that the question whether the alleged improvement is or is not patentable, is, in an equity suit, a question for the court.

Applicants for a patent are required to file in the Patent Office a written description of their invention, and of the manner and process of making, constructing, and using the same, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to make, construct, and use the patented improvement. Rights of the kind are given only to inventors or discoverers of some new and useful art, machine, manufacture, or composition of matter, or some new and useful improvement thereof; and the law is well settled that nothing short of invention or discovery will support a patent for any such alleged new and useful improvement.

Certain other important conditions are also annexed to the exercise of the right to obtain such a muniment of title for such an invention or discovery; as, for example, the improvement must not only be new and useful, but it must be one not known or used by others in this country, and not patented or described before the invention or discovery in any printed publication in this or any foreign country, and must not have been in public use or on sale for more than two years prior to the application for the patent. 16 Stat. 201; Collar Company v. Van Dusen, 23 Wall. 563.

Invention or discovery is the requirement which constitutes the foundation of the right to obtain a patent; and it was decided by this court, more than a quarter of a century ago, that unless more ingenuity and skill were required in making or applying the said improvement than are possessed by an ordinary mechanic acquainted with the business, there is an absence of that degree of skill and ingenuity which constitute the essential elements of every invention. Hotchkiss v. Greenwood, 11 How. 267.

Ten years later, a case came before this court, in which the plaintiff claimed certain improvements in the construction of a machine for sawing lumber with the circular saw, including the manner of affixing and guiding the saw by allowing end play to its shaft, in combination with the means of guiding the device by friction-rollers and other appliances. Mills for sawing logs with a circular saw had been well known long before the supposed invention; and, in construing the claim of the patent, this court said that the claim is for the precise organization of the old machine, namely, the manner of affixing and guiding the circular saw by allowing end play to its shaft, in combination with the means of guiding it by friction-rollers, so as to leave the centre entirely unchecked; adding, that there is nothing new in the combination, and assigning as the reason for the conclusion, that the improvement had long been known and used in the circular saw for sawing timber of smaller dimensions than ordinary saw-logs.

Enough appears to show that the machine in that case was larger than those of the kind which had preceded it; but the court remarked that that circumstance did not afford any ground in the sense of the patent law for a patent, for the reason that the ordinary mechanic was doing the same thing every day in making a working machine from the patent model.

In order to reach invention, say the court in that case, the patentee must carry his improvement further: he must contrive the means of adapting the enlarged old organization to the new use, namely, the sawing of saw-logs, and claim, not the old parts, but the new devices by which he has produced the new results. Phillips v. Page, 24 How. 167.

Decisions by this court of later date have been made to the same effect; as, for example, the court decided that the claim of the patentee for making the cases of door-locks and latches double-faced, or so finished that either side of the case may be used for the outside, in order that the same lock or cased fastening may answer for a right or left hand door, was void, because the patentee did not show that he was the original and first inventor of the improvement, and intimated very strongly that the making of such a case, with two faces just alike, and so finished off in point of style that either side was fit to be presented outwards, was not a matter which could be patented, even if no locks with such cases had ever before been made. Jones v. Morehead, 1 Wall. 162.

Patented improvements which are not new and useful, or which did not require any invention or discovery to make the same, as compared with what existed or was in use before, may be declared invalid by the court in an equity suit. Stimpson v. Woodman, 10 id. 121.

Mere change in a machine of one material for another, as wood or wood strengthened with iron for iron alone, is not invention in the sense of the Patent Act, and therefore is not the subject of a patent. Hicks v. Kelsey, 18 id. 670.

Old processes are sometimes applied to new subjects, and where that was so, in a case which did not require the exercise of the inventive faculty, and without the development of any idea which could be deemed new or original in the sense of the patent law, it was held that the supposed improvement was not the subject of a patent, and that courts of justice may take judicial notice of a thing in the common knowledge and use of the people throughout the country. Brown v. Piper, 91 U.S. 38.

Proof of the state of the art is admissible in equity cases, without any averment in the answer touching the subject, and in actions at law, without giving the notice required when evidence is offered to invalidate the patent. It consists of proof of what was old and in general use at the time of the alleged invention; and may be admitted to show what was then old, or to distinguish what is new, or to aid the court in the construction of the patent.

Meritorious inventors are entitled to protection; but it is settled law that a mere carrying forward of an original patented conception, involving only change of form, proportions, or degree, or the substitution of equivalents, doing the same thing as the original invention by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results. Smith v. Nichols, 21 Wall. 115.

Effective support to the proposition that nothing but invention or discovery will entitle an applicant to a patent is also found in the reported decisions of the circuit courts, as appears from the following citations. Judge Story held, many years ago, that the mere application of an old process, machine, or device to a new use was not patentable,-that there must be some new process or some new machinery to produce the result, in order that the supposed inventor may properly have a patent for the alleged improvement. Howe v. Abbot, 2 Story, 194; Bean v. Smallwood, 2 id. 411; Glue Co. v. Upton, 6 Off. Gaz. 842; 7 id. 648.

Conclusive support to the proposition that an applicant for a patent is not entitled to the public protection, unless the supposed improvement involves actual invention or discovery, is found in the oft-repeated decisions of all the English courts having jurisdiction in such cases; and it is safe to remark, that the courts of that country apply the rule more readily, and with a much closer scrutiny, than do the courts of this country exercising the like jurisdiction. Ralston v. Smith, 11 H. L. C. 223; Harwood v. Railway Company, 11 id. 654; Jordan v. Moore, Law Rep. 1 C. P. 624; Kay v. Marshall, 8 Cl. & Fin. 245; Bush v. Fox, 5 H. L. C. 707; Tetley v. Easton, 2 C. B. N. S. 706; Horton v. Mabon, 12 id. 437; Ormson v. Clarke, 14 id. 475; Parkes v. Stevens, Law Rep. 8 Eq. 358; S.C.. Law Rep. 5 Ch. App. 36; Envelope Company v. Seymer, 5 C. B. N. S. 164; White v. Toms, 17 Law Times, N. S. 319; Ralston v. Smith, 11 C. B. N. S. 471; Ormson v. Clarke, 13 id. 337; Ralston v. Smith, 9 id. 117; Saunders v. Aston, 3 Barn. & Ad. 881; Seed v. Higgins, 8 El. & Bl. 743.

For these reasons, we are all of the opinion that the claim of the improvement described as the employment or use of two deflecting plates, one placed on each side of the circular saw, for the purposes set forth in the specification, is void, because it does not constitute a patentable invention.

Suppose that is so, still it is insisted by the complainants that the decree of the Circuit Court should be affirmed in respect to the second and fourth claims of the patent.

Clamps are employed or used by the complainants, arranged as shown, so as to have a lateral elastic movement, independent of the roller-beds to which the clamps are attached, for the purposes set forth in the second claim. Admit that the claim is a valid one, still it is insisted by the respondents that they do not infringe that part of the patented invention, and, consequently, that the decree of the Circuit Court should be reversed.

Four adjustable feed-rollers are shown in the machine of the respondents, and in front of them there is a pair of clamps, of peculiar construction, the object and only practical effect of which, it seems, is to hold the upper edge of the stuff to be sawed in proper position while it is in contact with the saw. Evidently they differ in form, method of attachment, purpose, and use from those described in the specification of the complainants. Instead of that, the clamps described in the complainants' patent are attached to the inner ends of the roller-beds, so that there are two journals at the back part of each clamp, which fit in boxes, and work or slide in recesses in the top and bottom pieces of the roller-beds.

To that it may be added, that the action of the clamps in the complainants' machine is governed by the set-screws which bear against rubber springs back of the boxes, the distance of the lateral vibration of the clamps being regulated by the stops, which are arranged to pass through the top pieces, the object of the arrangement being to give the clamps the ability to have a lateral elasticity and vibratory movement independent of the roller-beds, for the purpose, as stated in the claim, of compensating for the varying thickness of the different pieces of stuff, and to keep the stuff to be sawed in a proper relative position to the saw.

Competent experts testify that the clamps in the machine used by the respondents have no lateral elastic or vibratory motion independent of the roller-beds, and that they cannot perform the functions of the clamps described and claimed in the patent set forth in the bill of complaint; and the court is of the opinion, from an examination of the models exhibited, that the testimony of the expert is correct.

Keeping in view what has already been remarked, a few additional observations will be sufficient to dispose of the questions arising under the fourth claim of the specification, in which the complainants claim the employment of an adjustable bed, with clamps as described, in combination with the saw, when the saw has a stiffening plate in line with the adjustable bed, by which the stiffened or rounded side of the saw is made the line side.

Taken as it reads, the fourth claim does not include a deflecting plate, and only a stiffening plate on one side of the saw; and, if not, it is difficult to see how the devices claimed in the combination will permit the stiffened or rounded side of the saw to be made the line side, unless the deflecting plate is added to the claimed combination. Add the deflecting plate to the combination, and it is quite clear that the claim may include parts sufficient to be operative; but when such stiffened side is thus made the line side, and the clamps embrace the saw as described, it is quite essential that the clamp on the line side should have a lateral elasticity with respect to the bed, and also the described swinging motion. Neither the clamp on the line side or the one on the opposite side in the respondents' machine have any lateral elasticity with respect to the roller-bed, or a swinging motion, and the one on the line side of the saw has no lateral motion whatever when the machine is in operation.

Differences of opinion may possibly exist upon that topic, but all must agree that the claimed combination includes the clamps, and that infringement is not proved, unless it appears that the respondents use the entire combination. Having already decided that the respondents do not use the clamps of the complainants, it is unnecessary to pursue the inquiry, except to say that it is settled law, that, where the respondent in constructing his machine omits one of the ingredients of the complainant's combination, he does not infringe the complainant's patent. Gould v. Rees, 15 Wall. 194; Prouty v. Ruggles, 16 Pet. 341; Vance v. Campbell, 1 Black, 427; Gillv. Wells, 22 Wall. 28.

Suffice it to remark, that, in view of these conclusions, it becomes unnecessary to examine the errors assigned in respect to the rule of damages.

Decree reversed, and cause remanded with directions to enter a decree dismissing the bill of complaint.

title: Dunbar v. Myers/Opinion of the Court


text: Talk:Dunbar v. Myers/Opinion of the Court

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


text:
Commissioners of Johnson County v. January

ERROR to the Circuit Court of the United States for the District of Kansas.

The case is stated in the opinion of the court.

Mr. Nelson Cobb for the plaintiffs in error.

The bonds in question derive no validity from the act of Feb. 25, 1868, as it was expressly repealed by the fourth section of the act of Feb. 27, 1869, without any saving clause as to pending proceedings. The election, ordered when the former law was in force, not having been held until after the last law took effect, was, with all the subsequent action to which it gave rise, unauthorized and void. Aspinwall v. Commissioners of Daveiss County, 22 How. 364; ''Covington, &c. Railroad Co. v. Kenton'', 12 B. Mon. (Ky.) 144. Their issue was not authorized by the act of 1869, as after its passage no election was ordered, and the county is not estopped from contesting their validity, especially when their recitals show an absence of legal authority for the doings of the board in the premises. Marsh v. Fulton County, 10 Wall. 676.

The plaintiff below was not therefore a bona fide holder of the bonds in question. This court has repeatedly held that paper otherwise negotiable, which on its face shows that which should arouse suspicion and put the taker upon inquiry, cannot be so transferred as to cut off defences which would have been available against the original holder. Fowler v. Brantly, 14 Pet. 318; Goodman v. Simonds, 20 How. 343; Angle v. North-western Mutual Life Insurance Co., 92 U.S. 330; Harshman v. Bates County, id. 569.

The subsequent acts of the county do not estop it from setting up the defences upon which it relies in this suit. Bigelow on Estoppel, p. 80; Clark v. Session, 22 N. Y. 312; Langdon v. Dowd, 10 Allen, 423; Freeman v. Cooke, 2 Exch. Rep. 644; Howard v. Hudson, 2 El. & Bl. 1; Anderson v. Lyon, 11 Allen, 349; Wells v. Truesdell, 6 Pick. 455. The only interest paid on the bonds was that paid to the plaintiff below. The delivery of the certificates of stock was necessary to complete the subscription, and was, like it, void. The registration by the State auditor on the application of the holder of the bonds was without notice or knowledge of the county or its officers. Upon neither of these facts, therefore, can the doctrine of estoppel have any application.

Mr. James Grant, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:Commissioners of Johnson County v. January


text:
Commissioners of Johnson County v. January/Opinion of the Court

This is an action brought to recover the amount of certain coupons taken from bonds issued by the plaintiffs in error to the St. Louis, Lawrence, and Denver Railroad Company, of which bonds the defendant in error was the holder.

By consent of parties the case was tried by the court without a jury. The court found the facts, and gave judgment for the defendant in error. The plaintiffs in error thereupon brought the case to this court for review.

There is no dispute between the parties as to the leading facts of the controversy. The proper authorities submitted the question to the electors of the county, whether the county should subscribe for $100,000 of the stock of the company, to be paid for by issuing its bonds to that amount. The election was ordered on the 25th of January, 1869, and took place on the 6th of April, 1869. The proposition was sanctioned by a majority of more than two to one. The bonds were thereafter executed and deposited as escrows. On the 22d of May, 1871, the commissioners made an order that they should be delivered, and they were delivered accordingly. A certificate of stock was issued and delivered by the company, and is still held by the county. It has never been surrendered, nor offered to be surrendered. The bonds were signed by the chairman and clerk of the board of commissioners, and attested by the county treasurer. There was in each one a recital 'that this bond is executed and issued by virtue of, and in accordance with, an act of the legislature of Kansas, entitled 'An Act to authorize counties and cities to issue bonds to railroad companies,' approved Feb. 25, 1868, and is in pursuance of, and in accordance with, the vote of a majority of the qualified electors of the county of Johnson, at a regular election, held on the sixth day of April, 1869.' Each one bore, also, the following indorsement:--

'I, A. Thoman, auditor of the State of Kansas, do hereby certify that this bond has been regularly and legally issued; that the signatures thereto are genuine; and that the bond has been duly registered in my office, in accordance with an act of the legislature, entitled 'An Act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads or other works of internal improvements, and providing for the registration of such bonds and the repealing of all laws in conflict therewith,' approved March 2, 1872. Witness my hand and official seal, this twenty-first day of March, 1872.'

The certificate is authenticated by the official signature and seal of the auditor.

The road was finished, and has since been in operation. The county and its inhabitants are in the enjoyment of the benefits arising from it.

There is no imputation of any taint of fraud upon either side.

The county authorities paid the interest upon the bonds for a time.

The county has received what it contracted to receive, and has paid what it contracted to pay.

The plaintiff in the suit is the bona fide holder of the bonds.

A case of stronger equity can hardly exist.

Several objections have been taken to the validity of the bonds. They have been elaborately and ably argued upon both sides. The view which we take of the controversy renders it necessary to advert to but one of the objections, and to that one briefly. Our judgment will be placed upon a different ground.

The act mentioned in the recital in the bond was erroneously referred to. That act does not affect the case, and may be laid out of view. The act of Feb. 25, 1868, was in force when the order for the election was made. It gave ample authority for making the order, and for all that was subsequently done. It is insisted that this act was repealed by the act of Feb. 27, 1869; that the order for the election fell with the act repealed, and that, consequently, the election was held without any legal authority. Such repeal, so far as regards the authority to make the order, and the continuing efficacy of the order, is strenuously controverted upon the other side.

Whatever may be the fact, we are satisfied that after the passage of the act of 1869 all the proceedings were in substantial conformity to its requirements. It was in force before the election was held and until after the bonds were issued and delivered.

This act, like the act of 1868, authorized the commissioners to issue the bonds when the requirements of the law had been complied with. They were thus constituted a tribunal for the adjustment of all questions touching the subject. They were clothed with the power and charged with the duty to decide them. No appeal or review was provided for. Their issuing the bonds was the reflex and embodiment of their judgment that it was proper to do so. It implies a prior determination to that effect. The fact carries with it this presumption. The bonds recite that they were issued in conformity to law, and in pursuance of the election held on the 6th of April, 1869. It is true they refer to the wrong statute, but falsa demonstratio non nocet. The bad here does not hurt the good. The act of the commissioners was the act of the county, and the county is conclusively bound by what they have done. As between the county and a bona fide holder, no question involving the infirmity of the securities can be raised.

The principle of estoppel applies, and it precludes the obligor from interposing such a defence.

Whether the certificate of the auditor of State, indorsed on the bonds, has or has not the same effect, is a point not necessary in this case to be considered. Taking and holding the certificate of stock, issuing and delivering the bonds, and paying the interest for a time, cured the defect as to the order for an election, if any such existed. Under the circumstances, a bona fide taker had a right to presume that every thing had been properly done which was necessary to the validity of the bonds. When this suit was instituted, the objections which have been made were too late.

The views we have expressed have been repeatedly sustained by the adjudications of this court. Supervisors v. Schenk, 5 Wall. 772; Olcott v. The Supervisors, 16 id. 698; City of Lexington v. Butler, 14 id. 283; Pendleton County v. Amy, 13 id. 298; Myers v. Muscatine, 1 id. 385; Knox v. Aspinwall, 21 How. 544; Lind v. The County, 16 Wall. 6; St. Joseph's Township v. Rogers, id. 644; Pine Grove v. Talcot, 19 Wall. 666.

We refer especially to the closing part of the opinion in the case last mentioned.

Judgment affirmed.


text: Talk:Commissioners of Johnson County v. January/Opinion of the Court


text:
Atlantic Delaine Company v. James

APPEAL from the Circuit Court of the United States for the District of Rhode Island.

The facts are stated in the opinion of the court.

Mr. William M. Evarts and Mr. A. Payne for the appellant.

Mr. C. H. Hill for the appellee.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Atlantic Delaine Company v. James


text: Talk:Atlantic Delaine Company v. James

title: Talk:Atlantic Delaine Company v. James


text:
Atlantic Delaine Company v. James/Opinion of the Court

The bill was originally filed by Charles T. James against the Atlantic Delaine Company, George W. Chapin, and Lyman B. Frieze; and, after the death of the complainant, it was revived by his administratrix. Its object is to obtain a cancellation of a release of James's interest in the capital stock of the company, together with a retransfer of the stock, and an account. The history of the transaction sought to be annulled is as follows, so far as it is necessary now to refer to it: On the second day of September, 1851, James made a general assignment of all his property, for the benefit of his creditors, to Lyman B. Frieze. Among the properties thus assigned was an interest in the capital stock of the company, for which certificates had never been issued, but which, it is alleged, in equity belonged to the complainant. The release sought to be cancelled was made by the assignee. It was dated March 2, 1853, and acknowledged on the 11th of the same month. Concurrently with it, the company executed a release to the assignee and to the complainant of all claims and demands, actions and causes of action whatsoever held by it against the complainant or his assignee, or against the assigned estate. These mutual releases were intended as a settlement of mutual claims. The company was a large creditor of General James. It held his mortgages, and among them one upon his right to the capital stock and property of the corporation; and it had other claims against him, and claims also against his assignee, as such, growing out of the assignment. On the other hand, General James had claims against the company, which passed by his deed of assignment to his assignee. An arrangement was then made between the assignee and the company, by which the latter accepted, in full settlement of the claims it held against James and his assignee, a conveyance of all the right, title, and interest which James had at the date of his assignment, and which the assignee then held, in and to the capital stock and property of the corporation; and mutual releases were exchanged. It is this transaction, and the assignee's release, which the complainant seeks to have set aside, alleging that the release and conveyance were obtained by fraud.

It is obvious, at first sight, that most of the allegations of the bill have little, if any, relevancy to that subject. At most, they are matters of inducement, introductory to the one important averment upon which alone the bill can rest. That averment is, in substance, that untrue and incorrect statements of the condition and affairs of the company were exhibited to the complainant's assignee, with intent to deceive him; statements by which he was deceived, and induced to consent to the settlement that was made, and to execute the release of the stock. Unless this allegation has been sustained by proof, the complainant's suit must fail. It is admitted in the appellee's brief that the case turns upon it.

We shall spend no time, therefore, in considering the introductory averments. Most of them are unsustained by the evidence; and, were they all true, they would confessedly be of no importance, if the principal averment is not proved.

The case exhibits but a single statement of the condition and affairs of the corporation, made or furnished to either the complainant or to his assignee, and it is that one which is now charged to have been false and fraudulent. The accuracy and good faith of that alone is assailed. The circumstances that preceded its being furnished to Mr. Frieze, the assignee, were the following: On the 5th of February, 1853, George W. Chapin, the treasurer of the company, and the trustee in the mortgages which James had given to secure the payment of $75,000 borrowed by him, and long past due, by virtue of a power contained in the mortgages, advertised for sale the property described in them, including General James's interest in the capital stock of the Delaine Company. The times appointed for the sales were the twenty-fifth and twenty-sixth days of the same month; but the sale of the stock was advertised for the twenty-sixth. On the 15th of February, Frieze, the assignee of General James, sent the following note to Chapin:--

'PROVIDENCE, Feb. 15, 1853.

'GEORGE W. CHAPIN, trustee for Hill, Carpenter, & Co., and     others, and treasurer of the Atlantic Delaine Company:

'DEAR SIR,-I feel it my duty to demand of you a statement of the condition, standing, and accounts of the Atlantic Delaine Company, so that I may be able to represent the delaine stock, &c., which you have advertised, as trustee, to be sold on the 25th and 26th instant, in its true light and value, and make it sell for what it is worth.

Very truly yours,

'L. B. FRIEZE,

'Assignee of Charles T. James.'

The note upon its face explained for what the statement was wanted. It was that the assignee might know, so far as the account would show, the value of the stock, and that he might guide his action by that knowledge. Before, however, any statement was made out and furnished, in answer to this demand, the sale of the stock was enjoined; but, on the 26th of the month, Chapin made out and sent to Mr. Frieze the following:--

Statement of the Atlantic Delaine Company, Jan. 1, 1853.

Due agents for advances on goods. 90,026.

---

$789,541.

Cash and bills receivable, on hand.$13,584.

Cost of real estate, cassimere department, and amount

paid Charles T. James's contract account. 310,006.

Due from Lyman B. Frieze, assignee. 53,314.

Wool, cotton, and supplies at mill. 190,692.

--

$789,541.

'I would state that our directors estimate that $50,000 or more of the above balance accrued from the non-fulfilment of the contract with Charles T. James, which they shall prosecute against him or his assignee.

'The above is a true copy from the books.

'(Signed) GEORGE W. CHAPIN, Treasurer.

'PROVIDENCE, Feb. 26, 1853.'

The Circuit Court was of opinion that this statement was false and fraudulent, and that it was furnished with the intent to deceive and defraud, by promoting a settlement prejudicial to General James, and more favorable to the corporation than truth and justice would admit. With this opinion we cannot concur. A careful and thorough examination of all the evidence submitted has failed to convince us that there was any substantial error in the statement, or that it did not truly exhibit the condition, standing, and accounts of the company when it was given. There are not many particulars in which it is now alleged the exhibit was untrue. We shall notice all that are alleged.

1. It is said, on behalf of the complainant, that the item on the debit side, '$410,615.39, bills payable,' includes promissory notes amounting to $76,000, given by the company to their agents in exchange for accepted drafts drawn upon the agents, on account of manufactured goods consigned to them. Admitting such to be the fact, we do not perceive that it shows any inaccuracy in the items. It is abundantly proved, and it is beyond all doubt true, that the sum of the company's notes outstanding at the time was exactly what it was stated to be, and the company was liable for them all. The notes for $76,000, equally with the others, were to be paid, either in money or out of the proceeds of the goods in the agents' hands, if, from the latter, the value of the goods would be correspondingly decreased. But it is not denied that the statement credits the company with the full value of the goods in the agents' hands, without making any deduction for the drafts drawn against them. Besides, the evidence is that the drafts, in exchange for which the notes for $76,000 were given, were not in fact drawn against the consignments. They were accommodation acceptances. It is impossible, therefore, to conclude that this item on the debit side of the statement, to which the complainant now objects, was not strictly accurate. No other inaccuracies in the debit side are alleged.

2. The next allegation of falsehood in the statement refers to the second item on the credit side, which is 'cost of real estate, cassimere department, and amount paid Charles T. James's contract account, $310,006.40.' This sum was made up of three items of expenditure, the first two not belonging to the contract with James for building the mill; namely, $13,140.60 paid for the real estate, $40,250.33, the cost of the cassimere department, and $256,615.11, the sum paid and charged to General James on his contract for building the mill. These items are admitted to have been correct. They amount to the sum set out in the statement. But it is argued the mill had cost more. It is said there was still due to General James on his contract the sum of $29,000, and he had a claim for extra work, it is said, amounting to $79,000 more. These two sums, it is argued, should have been added to the $310,006.40, to show the true value of the real estate, cassimere department, and mill. Yet it is obvious, had that been done, it would have been necessary to carry the two sums to the other side of the account, as debts due from the company, and charge them there. Thus the apparent indebtedness of the corporation would have been increased equally with the apparent increase of its assets, and the balance of the account would have remained as stated. But the objection made to the item misstates it or misapprehends it. Mr. Chapin, the treasurer, did not undertake to give the cost of the mill or its value. He had no better means for estimating the value of the mill or its cost than General James himself had, or than his assignee had. James had undertaken to build it, and to furnish it with all the machinery needed. He knew what the contract price for building it was, and he knew what extra work had been done. So did his assignee, who by the assignment had been directed to go on and complete what the assignor had undertaken to do. And when Mr. Frieze demanded a statement, it was a statement of the condition, standing, and accounts of the company. What was given in answer to the demand was not an estimate of the value of the mill (which was not demanded), but a true statement of the cost of the real estate and of the cassimere department, together with the amount paid General James on his contract for completing the mill. The statement undertook to give nothing more, and there is no just reason for saying that in this particular the statement was in the least degree either fraudulent, imperfect, or untrue.

3. It is next contended that the fifth and sixth items on the credit side were incorrect, and fraudulently so. Those items are 'wool, cotton, and supplies at mill, $190,692.17,' and 'delaines, cassimeres on hand, $149,516.74.' But we do not find any considerable error in these sums, and certainly there is no evidence that the very small error we do find was intentional. In addition to the number of cases of delaines which the company had in the hands of Day, Owen, & Co. there appears to have been a mistake of eleven cases, of the value of $1,120. This is easily accounted for without imputing fraud. It was simply a clerical omission of one column in adding, a very common error in transcribing and footing up accounts. And the error is too small and too unimportant to justify any inference that it was not accidental. Apart from this, nothing has been adduced to show that the quantity and value of the wool, cotton, and supplies at the mill, together with the delaines and cassimeres on hand, including those in the hands of agents of the company, were not truly represented in the statement furnished to Frieze. No evidence whatever has been given to prove that there was any greater quantity; and that the value was not under-estimated plainly appears in the fact that the goods were very shortly afterwards sold, and brought less at the sales by several thousand dollars than the sum at which they have been estimated. Moreover, the correctness of the items assailed is vindicated by their correspondence with the inventory of the company, taken Dec. 31, 1852. It is said that the items do not correspond with the exhibition made by the trial balance of Dec. 31, and this is true; but the fact is unimportant, for the trial balance exhibited the cost, while the statement, corresponding with the inventory, exhibited what was supposed to be the market value.

These are all the particulars in which it has been contended the statement made to Frieze, the complainant's assignee, by the treasurer of the corporation, is false or fraudulent. Unsupported as the attack upon the statement is, in our judgment, by any considerable proof, its substantial correctness is vindicated by convincing evidence. Not only does the testimony of Mr. Chapin, the treasurer of the company, prove it, but so also does that of Mr. Blodget, an experienced book-keeper, and that of Mr. Balch, an expert selected for the complainant to examine the books. Each of these witnesses affirms to the accuracy of the statement. And the complainant has produced no evidence to show that the company had more property, or property of greater value, or that its liabilities were less than represented to him.

It is true, as has been urged upon our attention, that the statement furnished concluded with the following: 'The above is a true copy from the books,' and this was not strictly correct. It was not a copy. There was in fact no such statement on the books. But most of the items were there, and the books were sufficient to enable the treasurer to make it up. If those items were correctly extracted, it was of no importance whether the statement was literally a copy or not. All that was probably meant was, that the particulars of the statement were taken from the books. Yet, if not, if the representation that the statement was a true copy from the books must be regarded as intentionally untrue, it cannot be said to have been hurtful to the complainant or to his assignee. What was asked for and what was needed was a statement of the condition and affairs of the company, to enable Mr. Frieze to estimate the value of the stock, and to take measures to have it bring its value at the impending sale. If the statement he got in response to his demand was a true representation of the condition of the company (which we think it substantially was), he cannot be said to have been deceived or defrauded by it; and his testimony in this case is that he does not think he was deceived. He submitted the statement to a judicious friend; and, acting on the advice of that friend, as well as on his own judgment, he agreed to the settlement that was made,-a settlement in which, as it seems to us now, he obtained all that the stock was then worth. It was not until nearly six years afterwards-no complaint of unfairness having been made to the defendants in the mean time that this bill was filed to undo what had been done, and to procure a cancellation of the mutual releases and of the transfer of the stock to the corporation. Cancelling an executed contract is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear; never for alleged false representations, unless their falsity is certainly proved, and unless the complainant has been deceived and injured by them. We think no such case is now presented. The fundamental averment of fraud is not sufficiently sustained by proof. The bill must, therefore, be dismissed.

Decree reversed, and cause remitted with instructions to dismiss the bill.

MR. JUSTICE CLIFFORD dissented.


text: Talk:Atlantic Delaine Company v. James/Opinion of the Court


text:
United States v. Smith (94 U.S. 214)

APPEAL from the Court of Claims.

This was a suit by the appellee to recover damages for the suspension of his contract with the United States. By the contract the parties agreed:--

First, The said Joseph Smith, his heirs, executors, and administrators, agrees to superintend or cause to be superintended, and assist the soldiers in the erection of buildings at post of Beaver, Utah, according to plans and specifications; and agrees, also, to supply or cause to be supplied all the skilled labor and material necessary for the erection of the buildings, in conformity with said plans and specifications.

Second, It is agreed that, for and in consideration of the faithful fulfilment of the above stipulations in all their parts, the party of the second part shall be paid by the United States, at the office of the A. A. Q. M., at post of Beaver, Utah, as follows, viz:--

Sixty-nine thousand one hundred and seventy-seven dollars ($69,177), provided that the United States is not liable for any amount beyond the sums appropriated for such purpose during the fiscal years in which the services are rendered. Payment to be made in instalments at completion of each separate building, or as soon thereafter as funds may be received for that purpose. The buildings to be inspected and accepted by the United States.

The Court of Claims found the following facts:--

I. On the 1st December, 1873, while the buildings were in progress of construction, the contractor was stopped by order of the post-commander, with the approval of the commander of the department, and all work under the contract was ordered to be suspended. The contractor objected to the work being stopped, and requested that he be released from his agreement, unless the work could go on. The matter was referred to the Quartermaster-General, and by him submitted to the Secretary of War. Pursuant to orders of the latter, the contractor was allowed to resume work. The period of suspension was from the 1st December, 1873, to the 3d February, 1874. The defendants have paid for the work done under the contract, but have not paid the damages occasioned by the suspension of the work.

II. On the 30th October, 1874, General Ord, commanding the Department of the Platte, referred the contractor's claim for damages caused by the suspension to the quartermaster of the post of Beaver, who had had entire charge of the work from the beginning to the completion thereof, with instructions to report as to the damages caused by 'the unexpected stoppages and delays inflicted on the contractor, Smith, by the orders from Washington and department head-quarters; the exposed and unfinished condition in which he was compelled to leave the buildings during winter storms; the remoteness of the place of building, where all skilled labor had to be provided from a great distance, and which was left sometimes unoccupied and unpaid for on the contractor's hands; the deterioration in value of material left exposed while waiting for orders to continue the work.' The post quartermaster, under these instructions, reported the contractor's losses at $8,000, and the department commander approved the recommendation. The court finds the claimant's damages for the same to be $5,000.

III. During the progress of the work the contractor furnished and performed certain additional or extra work not required by his contract. But, on the inspection of the buildings before the final payment, it was found by the inspecting officer that the contractor had omitted to furnish and perform certain work required by the contract. It was subsequently agreed between the contractor and the defendant's officers that the extra work furnished should be received and stand in the place of that omitted by the contractor, and under and in pursuance of such agreement or compromise the contractor was paid the balance remaining due of the contract price.

Upon the foregoing findings the court decided as conclusions of law,--

1. The officers of the government charged with the care and supervision of the building to be erected by the claimant had no right to hinder or delay him in the proper performance of his work: and for the suspension thereof, ordered by such officers in the supposed interest of the government, the claimant should recover such damages as were the necessary consequence of the suspension; that is to say, such damages as would place him as nearly as possible in the same condition as he would have been in if he had been allowed to proceed without such interference, excluding therefrom, nevertheless, any loss or injury to his materials, which might have been prevented by the exercise of reasonable care and prudence on his part, in the storing, custody, and preservation thereof.

2. The estimate or allowance of damages for the suspension of the work made by the post quartermaster, under the instructions of the commanding officer of the department, does not determine the amount thereof, and should be excluded by the court in making a computation of damages.

3. The extra work on the buildings done by the claimant in addition to that required by the terms of his contract, and the deficiencies under the contract, as determined by the inspecting officer who inspected the work before acceptance by the government, as provided by the contract, were proper subjects of compromise and set-off, and, having been so compromised and set off against each other before final payment, the claimant is concluded from seeking a recovery for the former.

Judgment was rendered for the claimant for $5,000, whereupon the United States appealed here.

Mr. Assistant Attorney-General Smith for the appellant.

Mr. James Lowndes, contra.

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

title: United States v. Smith (94 U.S. 214)


text: Talk:United States v. Smith (94 U.S. 214)


text:
United States v. Smith (94 U.S. 214)/Opinion of the Court

The only questions presented in this case relate to the liability of the United States for damages growing out of the suspension of the work under the contract sued upon. In effect, the contract bound Smith to furnish the materials and erect the buildings, the labor being performed by the soldiers at the fort, except to the extent that skilled workmen were necessary. There was no time specified within which the work must be done, neither was there any power reserved by the United States to direct its suspension. Under such circumstances, the law implies that the work should be done within a reasonable time, and that the United States would not unnecessarily interfere to prevent this.

In Clark's Case, 6 Wall. 546, it was decided that the United States were liable for damages resulting from an improper interference with the work of a contractor; and in Smoot's Case, 15 id. 47, that the principles which govern inquiries as to the conduct of individuals, in respect to their contracts, are equally applicable where the United States are a party. The same rules were applied in the case of the Amoskeag Company, 17 id. 592. Here the work was stopped by order of the United States. Smith asked to be released from his contract, unless he could go on. This was refused until the expiration of sixty days, when he was allowed to resume. As between individuals, certainly, this would be considered an improper interference, and damages would be awarded to the extent of the loss which was the necessary consequence of the suspension. The United States must answer according to the same rule. In this respect, we cannot consider this case different in principle from that of Clark, supra.

The Court of Claims has found the amount of the damages to have been $5,000; that is to say, that sum, in its opinion, from the evidence before it, was necessary to place Smith in the same condition he would have been in if he had been allowed to proceed without interference, and not allowing any thing for loss or injury to his materials, which he might have prevented by the exercise of reasonable care and prudence.

This rule of damages, as an abstract proposition, is clearly right. Unless, therefore, there appears in the record some error growing out of the estimation of the amount, the judgment below should be affirmed.

By our rules in reference to appeals from the Court of Claims, rule 1, sect. 2, that court sends here its finding of facts as 'established by the evidence, in the nature of a special verdict.' The evidence is not sent up. This finding is conclusive, unless impeached for some error in law appearing in the record. Here, in effect, the error complained of is, that the court refused to state the items of its account of damages. This we have not required; and while, under the practice we have established, liberal provision should be made for the review of questions of law, it seems to us that in this case the claim of the United States goes beyond any thing we ought to grant. The court might with propriety have been asked to state in a finding whether a particular item of claim or of damage was included in its estimate, and, if so, what amount. To such a finding exception might in proper form be taken, and then we could be called upon to decide whether such an item was legally the subject of compensation in an action for damages. The United States can be required to make compensation to a contractor for damages which he has actually sustained by their default in the performance of their undertakings to him; but this is the extent of their liability in the Court of Claims. More than compensation for damages actually sustained can never be awarded against the United States.

In this case the United States asked the court to find (1) the amount of damage done to the building on account of exposure to the winter storms in its unfinished condition; (2) the amount resulting from the retention of the skilled labor, &c.; and (3) the deterioration in the value of materials. All these were legitimate subjects of inquiry by the court in making up its final estimate; but we know of no rule of law or practice which requires a court or jury to specify the elements of the calculation by which it arrives at its final result. In this case the court was not asked to say whether it included this or that supposed element of compensation in its judgment; but the only effort seems to have been to ascertain the items of calculation so as to determine whether the proof supported them. The whole contest evidently was as to the sufficiency of the evidence, not as to the liability of the United States if the facts as claimed were established by the proof.

In the estimation of damages the Court of Claims occupies the position of a jury under like circumstances. Damages must be proved. The court is not permitted to guess any more than a jury, but, like a jury, it must make its estimates from the proofs submitted. The result of the best judgment of the triers is all that the parties have any right to expect.

As the record presents the case, we see no error in the court below.

Judgment affirmed.


text: Talk:United States v. Smith (94 U.S. 214)/Opinion of the Court


text:
The American Journal of Sociology/Volume 04

Articles

 * .Trades Unions and Public Duty
 * .The Movement for Small Playgrounds
 * .The Movement for Vacation Schools
 * .The Social and the Extra-Social
 * Bliss, H. L.Eccentric Official Statistics: IV
 * Ellwood, C. A.Prolegomena to Social Psychology: I
 * Ellwood, C. A.Prolegomena to Social Psychology: II
 * Fairchild, E. M.Ethical Instruction in School and Church; The Need and a Method
 * Göhre, Paul.Social Objects of the National-Social Movement in Germany
 * Politics in Public Institutions of Charity and Correction
 * Johnson, Alexander.Concerning a Form of Degeneracy: I
 * Johnson, Alexander.Concerning a Form of Degeneracy: II
 * Kelley, Florence.The United States Supreme Court and the Utah Eight-Hours' Law
 * Criminal Anthropology in its Relation to Criminal Jurisprudence: I
 * Criminal Anthropology in its Relation to Criminal Jurisprudence: II
 * Kimble, R. G.Contributions to the Comparative Study of Association: I
 * MacLean, Annie Marion.Two Weeks in Department Stores
 * .The Significance of the Church to the Social Movement
 * Milliken, O. J.Chicago Vacation Schools
 * Millis, H. A.The Relief and Care of Dependents: V
 * Millis, H. A.The Relief and Care of Dependents: VI
 * .Profit-Sharing and Cooperation: I
 * .Profit-Sharing and Cooperation: II
 * Perry, H. F.The Workingman's Alienation from the Church
 * Powers, L. G.Some Inequalities in Land Taxation
 * Ratzel, Friedrich.Studies in Political Areas: III
 * Shearman, T. G.The Single Tax: What and Why
 * .The Persistence of Social Groups III
 * Sanity in Social Agitation
 * Seminar Notes: Methodology of the Social Problem: I
 * Seminar Notes: Methodology of the Social Problem: II
 * Seminar Notes: Methodology of the Social Problem: III
 * Sex in Primitive Industry
 * Sex in Primitive Morality
 * .The Delusions of Durkheim's Sociological Objectivism
 * Vandewalker, N. C.Some Demands of Education upon Anthropology
 * .The Barbarian Status of Women
 * .The Beginnings of Ownership
 * .The Instinct of Workmanship and the Irksomeness of Labor
 * Vincent, G. E.A Retarded Frontier
 * Yarros, V. S.Taxation and the Philosophy of the State
 * Zueblin, Charles.Municipal Playgrounds in Chicago
 * Zueblin, Charles.The World's First Sociological Laboratory


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United States v. Phisterer

APPEAL from the Court of Claims.

Mr. Assistant Attorney-General Smith for the United States.

Mr. Halbert E. Paine, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: United States v. Phisterer


text: Talk:United States v. Phisterer

title: Talk:United States v. Phisterer


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United States v. Phisterer/Opinion of the Court

The present case is one of a class of which several are now pending in this court, and many more, it is understood, are before the Court of Claims.

The claimant was a captain of infantry in the United States army, and on the seventh day of January, 1870, by special order from the Adjutant-General's office, at his own request, was ordered home to await orders. This was done by virtue of the Consolidating Act of March 3, 1869. The claimant proceeded from Fort Bridger, Wyoming Territory, where he then was, to his home in New York City. On the 28th of February, 1870, he reported as waiting orders at that place, and afterwards as waiting orders at Littleton, N. J., which was then his home.

The claim now made is for mileage in travelling from Fort Bridger to New York, and for commutation for quarters and for fuel while thus awaiting orders. orders.

The Court of Claims allowed the petitioner both for his mileage and the commutation for quarters and fuel during the period mentioned. The questions will be separately considered.

1. As to mileage.

Comment is made upon the circumstance that the claimant reported himself to the department as awaiting orders at the city of New York, on the 31st of January, 1870, specifying that place as his home, and that on the 31st of March following he reported himself at Littleton, N. J., specifying that place as his home. We see nothing in this that should prejudice the claimant's right of recovery. New York may well have been his home in January, and Littleton his home in March. It is not extraordinary nor a ground of suspicion that an officer should change his place of residence. Whether he resided in New York or in New Jersey could make no difference in his position in the army, or in his liability or readiness to respond to any orders given to him. It was indeed important that he should keep the department advised of his residence, that he could be called upon when it was desired. This he did. The department made no objection to this change of residence at the time, nor does it place its refusal to pay the mileage upon this ground. We think the circumstance quite unimportant.

The effect of the order to proceed to his home and there to await orders, and the difference between this status and that of an officer 'absent from duty with leave,' was considered by this court in the United States v. Williamson, 23 Wall. 411. That decision secures to the officer his full pay while thus awaiting orders, and we find no occasion to correct any thing contained in it. We are still of the opinion that the officer was not absent on leave, but that he was awaiting orders at his home. It results also from this decision, that, in thus proceeding to his home, he was travelling under orders.

The provision relating particularly to the case we are considering is found in sect. 1109 of the Army Regulations, authorized and confirmed by the act of July 28, 1866. It is there provided that 'an officer who travels not less than ten miles without troops, escort, or military stores, and under special orders in a case from a superior, or a summons to attend a military court, shall receive ten cents mileage.' This means that he shall be entitled to an allowance of ten cents for each mile thus travelled. It is hardly denied that the claimant was travelling within the meaning of this regulation.

But it is contended that, under regulation, sect. 1117, the department was justified in withholding the allowance. That regulation is in these words: 'When officers are permitted to exchange stations, or are transferred at their own request from one regiment or company to another, the public will not be put to the expense of their transportation. They must bear it themselves.' If A. at one station and B. at another desire to exchange stations or regiments or companies with each other, and prefer a request to that effect, the provision assumes that the commanding officer may, in his discretion, grant it; but, as no public interest is advanced by it, and it is consented to for the advantage or pleasure of the two officers, they must bear their own expense of transportation in making the exchange. This is just and reasonable.

We are inclined to think that it would be too narrow a construction of this provision to hold that it required that two officers should be concerned in the exchange. An exchange from one station to another station by the same officer at his own request, if found compatible with the public service, would be within the words of the rule, and apparently as much within its spirit as when the exchange was made by and between two officers.

But we are of the opinion that Captain Phisterer did not make an exchange of stations within the meaning of this regulation. In other words, although he left a military station at Fort Bridger, his home at New York, to which he went, did not become, and is not to be deemed, a military station. In the broadest use of language, no doubt the word 'station' means a place or position; and it may be said that wherever a man, in pursuance of orders, stays or remains, he is stationed, and that if he is a military man, such place becomes a military station. This word (station) has a recognized and a different meaning under different circumstances. It is a technical word in church regulations, in the science of ecclesiology, in the civil law, in surveying, in railroad language, and in military science. See Richardson and Worcester Dict.

A 'military station' is merely synonymous with the term 'military post,' and means a place where troops are assembled, where military stores, animate or inanimate, are kept or distributed, where military duty is performed or military protection afforded,-where something, in short, more or less closely connected with arms or war is kept or is to be done.

In the Army Regulations the two terms are often used convertibly. Thus, in the regulations of 1847,--

If a post or station should prove unhealthy, the troops may be removed, &c. 11, par. 57.

Whenever a military post or station shall be abandoned, the property should be turned over, &c. 11, par. 58.

Commanding officers of forts and stations on the sea-coast to aid in quarantine regulations. 11, par. 61.

The military force at any post or station in the Indian Territory shall be employed, &c. 17, par. 91.

Whenever an officer is ordered from one station to another, or for the performance of any duty, not being with troops, he shall proceed by the most direct route without unnecessary delay; nor is he under any pretence whatever, except that of sudden illness, to apply for leave of absence from the time he quits the station at which he receives the order until he has arrived at his place of destination. 45, par. 227.

Whenever such officer shall appear to have made unusual or unnecessary delay, he shall immediately report the cause to the commanding officer of the post. 45, par. 228.

It is a misuse of language to designate as a post or a military station a cottage in a country village, in no way distinguishable in its use or appointments from every other residence in the village, because one of the persons who lives in it is an officer in the army. There was no exchange of stations by Captain Phisterer, and, therefore, nothing to except his case from the general law which allowed him mileage for his travel in proceeding to his home.

2. The claim for commutation for quarters and commutation for fuel while at New York and New Jersey is to be considered.

Among the army regulations established by the act of March, 1863, are the following, under the head of quartermaster's department: Sect. 1064. 'This department provides the quarters and transportation of the army,. . . fuel, forage,' &c. 'Barracks and quarters.' Sect. 1066. 'Under this head are included the permanent buildings for the use of the army, as barracks, quarters, hospitals, storehouses, officers' stables.' Sect. 1068. 'The number of rooms and amount of fuel for officers and men are as follows:. . . Captain, two rooms, one as kitchen; cords of wood, three-fourths or three per month, according to the season of the year.' Sect. 1071. 'No officer shall occupy more than his proper quarters, except by order of the commanding officer, when there is an excess of quarters at the station.'. . . Sect. 1073. 'Fuel issued to officers or troops is public property for their use; what they do not actually consume shall be returned to the quartermaster, and taken up on his quarterly return.' Sect. 1077. 'An officer may select quarters occupied by a junior; but, having made his choice, he must abide by it, and shall not again at the fort displace a junior, unless himself displaced by a senior.' Sect. 1080. 'When public quarters cannot be furnished to officers at stations without troops, or to enlisted men at general or department headquarters, quarters will be commuted at a rate fixed by the Secretary of War, and fuel at the market price delivered.'. . . Sect. 1083. 'Officers absent from their appropriate duties for a period exceeding six months, either with or without leave, shall not receive the allowances' mentioned. Sect. 1084. 'Officers and troops in the field are not entitled to commutation for quarters or fuel.'

The claimant bases his demand upon sect. 1080, above set forth. To maintain this claim, it must be held that Captain Phisterer, while at his home in New York and in New Jersey, was at a station without troops. That he was without troops is plain enough; but that his home on these occasions was not a military station, we have undertaken to show when considering his claim for mileage. The same construction of the word 'station,' which gives him his mileage, cuts off his claim for commutation.

We think the regulation we have referred to was not intended for a case like that we are considering; that is, where an officer is at his own home awaiting orders, and having no public duty whatever to perform.

Quarters are expected to be furnished by the government to its officers; when it cannot thus furnish, it allows them to be obtained otherwise, and pays a money compensation therefor, called commutation. This is upon the assumption, first, that the officers are actually engaged in the public service; and, second, that such quarters are necessary to the discharge of their duty. It is upon the latter idea that commutation for fuel and quarters is not allowed to officers when in the field. The duty there is public not only, but of the most necessary character; still, apartments, kitchen, and offices are not there necessary, and cannot be commuted for.

We are of the opinion that the claimant was not at a station, in the sense that he is entitled to public quarters, or to a compensation in the form of commutation for rooms and apartments or fuel, obtained or supposed to be obtained in lieu of those expected to be furnished by the government. In making this allowance, we think the Court of Claims erred.

The briefs submitted contain suggestions of what would be the result in various cases, which, it is said, may arise under these regulations. Our judgment is intended to be given upon the precise case before us, and upon no other. Should other cases be presented, the Court of Claims will give them the attention required, as will this court, should they come here. Both courts have business enough to occupy them, without anticipating cases which may never be presented.

Judgment reversed, and cause remanded with directions to enter a judgment awarding the claimant mileage, and denying him commutation for quarters and fuel.

NOTE.-In United States v. Chilson, Same v. Rheem Same v. Lynde, cases in which the claims for commutation for fuel and quarters by officers ordered to their homes, under the act of March 3, 1869, were allowed by the court below, and which were argued by the same counsel as in that case, MR. JUSTICE HUNT delivered the opinion of the court, reversing the judgment of the Court of Claims. At the same time and by the same counsel as in the preceding cases was argued United States v. Mears. It involved the question whether an officer ordered to his home, under the act of March 3, 1869, was entitled to his mileage. Mears, a paymaster, paid mileage to an officer so ordered. The government disallowed the item in his accounts, and he brought suit to recover the amount. The Court of Claims found in his favor; whereupon the United States appealed to this court. MR. JUSTICE HUNT, in delivering the opinion of the court, remarked: The officer was entitled to his mileage, and the payment was rightly made.

Judgment affirmed.


text: Talk:United States v. Phisterer/Opinion of the Court


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Cammeyer v. Newton

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

Mr. Thomas P. Howe for the appellant.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Cammeyer v. Newton


text: Talk:Cammeyer v. Newton

title: Talk:Cammeyer v. Newton