United States Circuit Courts of Appeals Reports: With Key-number Annotations ...

that it fails to show the element of consent on the part of the employé (Wareham) which is the distinguishing feature of all decisions holding the employé to be estopped; and hence the citations relied on by the learned counsel are not applicable. It is scarcely necessary to add that estoppel cannot be based upon the fact (already discussed in another connection) that the company bore the expense of reducing Wareham's invention to practice, since this, as well as Wareham's disclosure of his invention to the company, was in pursuance of a proved understanding that the rights of the parties should be fixed by a subsequent written contract; it might be conceded that in the absence of this distinct condition the company would have been entitled to an implied license, a shop right, and that a contract like the one executed should have been treated as a temporary expedient, as indeed defendant claims the present one should be, though in view of the evidence it is apparent that such a question cannot arise here. Nor is the fact important that Wareham, while engaged on the road in his capacity as a commission salesagent, overran to some extent the period fixed by the contract. At most this was the result only of mutual sufferance; the acts of the parties in that period were in observance of the contract, and it is not shown that the company was either misled or prejudiced by the overtime.

One of the assignments is to the effect that the court erred in failing to consider defendant's testimony "as in the nature of a plea in bar under the old equity rules," and in stating in the opinion that defendant would not be permitted thereafter to raise "the question of validity and infringement * * of the patent in suit, which was expressly abstained from by defendant at the hearing." Although in pursuance of equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi) defendant presented this defense by answer, it is not shown that any effort was made in accordance with the same rule to have this portion of the answer separately heard and disposed of before trial of the principal case. would seem that the case was brought to trial upon all the issues. Plaintiff opened his case at the trial in the usual way, and, in view of the preliminary proofs, we think sufficiently to entitle him to relief. Defendant met the case so made by endeavoring to establish its claimed shop right, and it certainly had a full hearing upon this feature of the answer. It voluntarily refrained from offering evidence in support of the portions of its answer and amendment thereto alleging invalidity of the patent, though, as already pointed out, admission of infringement distinctly appeared.

We therefore see no sufficient reason for disturbing the decree simply because of an expression contained in the opinion that defendant would be denied a trial upon its other defense. The court perhaps had in mind the question whether defendant could split the case into as many parts as there were defenses, and try each of them separately, not only in the court of first instance, but through the appellate courts; but, whatever may have led to the expression to which the assignment of error relates, it seems certain that no application had been made to present evidence under the defense of invalidity, and hence we cannot rightfully pass upon the question.

The decree must be affirmed.

(242 Fed. 751)

ABBOTT BROS. CO. v. UNITED STATES.

(Circuit Court of Appeals, Seventh Circuit. April 10, 1917.)

No. 2437.

1. INDICTMENT AND INFORMATION ~52(2)—INFORMATION-SUFFICIENCY. An information, bearing the signature of the district attorney and to which were attached four affidavits, sworn to before notaries public, is sufficient to support a judgment of conviction, though not verified by the district attorney; no warrant of arrest having been sought, and it being assumed that the district attorney, who signed in his official capacity, acted under his oath as a governmental official.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. S$ 165, 166.]

2. INDICTMENT AND INFORMATION 196(4)—WAIVER OF DEFECTS.

Defects in the acknowledgment of the information are waived, if not raised by suitable objection before trial, and cannot thereafter be raised. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 632.]

In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Abbott Bros. Company, a corporation, was convicted of violation of the Pure Food and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 'Comp. St. 1916, §§ 8717-8728), and it brings error. Affirmed.

Norman K. Anderson, of Chicago, Ill., for plaintiff in error. Charles F. Clyne and Frederick Dickinson, both of Chicago, Ill., for the United States.

Before KOHLSAAT, ALSCHULER, and EVANS, Circuit Judges.

PER CURIAM. [1] The contention of the plaintiff in error that the information charging it with having violated the Pure Food and Drugs Act, bearing the signature of the district attorney for the Northern district of Illinois, and attached to which information and made a part of it were four affidavits sworn to before notaries public, is insufficient to support a judgment because of the insufficiency of the acknowledgement, must be rejected. Weeks v. United States, 216 Fed. 292, 132 C. C. A. 436, L. R. A. 1915B, 651; United States v. Adams Express Co. (D. C.) 230 Fed. 531.

No warrant for arrest having been sought, the information signed. by the United States district attorney was sufficient, without any verification and without any supporting affidavits. It was unnecessary for the district attorney, who signed the information in his official character, to assert in the body of that document that he informed the court upon his oath as a government official of the facts therein set forth. It will be presumed he acted on his oath as an officer of the govern

ment.

[2] Nor do we think the plaintiff in error is in a position to raise this question for the first time in this court. Defects such as are here complained of are in any event waived, if not raised by suitable objection before trial. People v. Murphy, 56 Mich. 546, 23 N. W. 215;

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Bryan v. State, 41 Fla. 643, 26 South. 1022; State v. Osborn, 54 Kan. 473, 38 Pac. 572; State v. Brown, 181 Mo. 192, 79 S. W. 1111; Johnson v. State, 53 Neb. 103, 73 N. W. 463; State v. Pancoast, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518; Hammond v. State, 3 Wash. 171, 28 Pac. 334. See, also, on waiver of informalities, Garland v. State of Washington, 232 U. S. 642, 34 Sup. Ct. 456, 58 L. Ed. 772.

Judgment is affirmed.

(242 Fed. 753)

In re HOLLINGSWORTH & WHITNEY CO. HOLLINGSWORTH & WHIT-
NEY CO. v. BOSTON et al. In re SCHMICK HANDLE & LUMBER CO.

(Circuit Court of Appeals, First Circuit. June 11, 1917.)
Nos. 1229, 1241.

1. BANKRUPTCY 117(1)-AGREEMENTS WITH RECEIVERS CONSTRUCTION. Where a claimant of timber, also claimed by the receivers of a bankrupt, agreed to dispose of it and pay over the net proceeds to the receivers or their successors, to hold as officers of the bankruptcy court, the agreement must be treated as an agreement with the court; the receivers being officers thereof.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 167.]

In such case, while the agreement remains in force, the bankruptcy court may order it complied with by either party thereto, without an independent suit brought for such purpose.