"This language did not mislead or induce either the defendants or the insurance companies to alter or change their position in any respect whatever, nor influence their conduct in any way. Both the defendants and the insurance companies had the written contracts before them, and were presumed, as a matter of law, to know their legal effect and operation. What the complainant said in his testimony was a statement of opinion upon a question of law, where the facts were equally well known to both parties. Such statements of opinion do not operate as an estoppel. If he had said, in express terms, that by that contract he was responsible for the loss, it would have been, under the circumstances, only the expression of an opinion as to the law of the contract, and not a declaration or admission of a fact, such as would estop him from subsequently taking a different position as to the true interpretation of the written instrument."

In Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 337 (23 L. Ed. 927) it was said: "Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel." So in Brewster v. Striker, 2 N. Y. 19, and Norton v. Coons, 6 N. Y. 33, and approved in Chatfield v. Simonson et al., 92 N. Y. 209, 218, where it was ruled "that the assertion of a legal conclusion, where the facts were all stated, did not operate as an estoppel upon the party making such assertion."

In Brant v. Virginia Coal & Iron Co. et al., 93 U. S. 326, 23 L. Ed. 927, the headnote reads as follows: "Where the estoppel relates to the title of real property, it is essential to the application of the doctrine that the party claiming to have been influenced by the conduct or declarations of another was himself not only destitute of knowledge of the true state of the title, but also of any convenient and available means of acquiring such knowledge. Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there is no estoppel."

In the case of Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458 at page 462, 97 N. E. 879, 880 (41 L. R. A. [N. S.] 740) the court said: "A fraudulent purpose or a fraudulent result lies at the basis of the doctrine of equitable estoppel through silence or inaction. Actual or intended fraud is not an element essential to it. Neither affirmative acts or words, nor silence maintained with the fraudulent in

tention of deceiving, are indispensable elements of it. But it arises only when, relatively to the party invoking it or his privies, the omission to speak is an actual or constructive fraud. Its existence requires that the party against whom it acts remained silent when he had the opportunity of speaking and when he knew or ought to have known that his silence would be relied upon, and that action would be taken or omitted which his statement of the truth would prevent, and that injury of some nature or in some degree would result."

There is and can be no claim that the purchaser relied in any manner upon anything that the petitioner said, for he said. nothing. Nor can there be serious claim that the purchaser relied upon the failure of the petitioner to disclose knowledge which the petitioner had and the purchaser had not, and which, if the purchaser had had it, would have deterred him from purchasing the property at the price paid by him.

[13, 14] The petitioner knew nothing, then, which he concealed and now discloses, and seeks to avail himself of, to the detriment of the purchaser. The petitioner then had no knowledge of the agreement between the purchaser and O'Brien, nor of the willingness of another person to pay more than 24 times as much for the bankrupt's equity, all of which he learned later. All the other matters of petitioner's knowledge related to the legality of the sale. This is a question of law, which both are presumed to know, and their knowledge of which was apparently alike. Even if it be assumed that the purchaser knew nothing about the failure to comply with the law, petitioner was under no obligation to speak, and no benefit did or could flow to him by silence. For petitioner's silence on that subject could not, under any circumstances, have greater effect than if he had made the direct representation to the purchaser that the sale was in all respects legal. As has been shown, such a statement is but an opinion on a question of law and cannot work an estoppel.

There seems no substantial ground, therefore, on which the petitioner can be deemed to be estopped. No authorities have been cited by the learned counsel for the purchaser, and none can be found by the research of the court, in which a creditor so vitally interested as is the petitioner, and who is not guilty of laches, has been held to have waived the utter absence of legality of a sale of bankrupt's property, or has been held estopped from questioning an illegal sale by any act

The case of Lansburgh v. McCormick, 224 F. 874, was a collateral suit to set aside a sale made under judgment of the federal court on the ground that the sale was not made on the premises sold, nor at the courthouse door of the county in which the land lies, as required by federal statute. In that case the complainant requested that the decree of sale be carried out as soon as possible, advertised the sale by pamphlets, was present at the sale, and, though filing exception to the report of the sale, made no allusion to the error ordering the sale of the premises at a place other than the courthouse door.

The sale was confirmed by the court, the consideration paid, the title passed to the purchaser, and the property subsequently sold to innocent third persons before the suit was brought. The Circuit Court of Appeals, Fourth Circuit, said: "The court having jurisdiction to order the sale, the mistake of directing that it be made at a place different from that required by the statute did' not make the sale void for want of juridiction, but was an error to be corrected by appeal or by direct application to the trial court." That court held that the conduct of the plaintiff "would estop him from now having the sale annulled after the rights of third parties have become involved."

In Re Torchia (C. C. A.) 188 F. 207, certain lienholders petitioned to review an order of distribution made by the District Court on the ground that no allowance for expenses of administration could be made out of the proceeds of the sale of the property ordered to be sold free from their liens, because the fund out of which their allowance was to be made was derived solely from proceeds of the sale of the real estate upon which the judgments of the petitioners were liens at the date of the bankruptcy.

In that case the Circuit Court of Appeals for the Third Circuit denied the petition, and in this respect the court said: "Not only did the petitioners now before the court have ample notice that the referee was being asked for an order to sell the bankrupt's real estate discharged of liens, but they made no objection thereto; and, after the order had been made, they not only took no steps to have it reviewed by the District Court, but they permitted the trustee to go on for months in the gradual execution of the order and in the 20 F. (2d)-28

The case of State Bank of Chicago v. Idaho-Oregon Light & Power Co. (D. C.) 219 F. 594, was a foreclosure of a corporate mortgage. There was no question of jurisdiction to make the sale, and there was no similarity of fact or analogy of any kind.

Rothschild v. Title Guarantee. & Trust Co., 204 N. Y. 458, 97 N. E. 879, 41 L. R. A. (N. S.) 740, does not support the purchaser's claim of estoppel. In that case the son of the owner of real property executed a forged mortgage thereon. About one year after the forged mortgage was executed, the owner acquired full knowledge of the existence thereof, but nevertheless, without protest, notice, or claim of its invalidity, made a payment of the semiannual interest thereon, and six months later made another interest payment. Interest was paid by some one for two more years without notice or protest, and the owner then died. The son in the meantime disappeared. The suit was brought by the owner's executors to cancel the mortgage. The Court of Appeals, reversing the lower court, held that the executors were estopped from questioning its validity. The court said:

"The right of seeking restoration and payment from the person who accomplished or procured the forgeries was in itself a substantial and valuable one. Caroline [the owner] could not by act or declaration diminish or thwart that right and not incur responsibility. She by making the payments recognized the mortgage and the lien it seemed to create as real and existing, extended their existence and retarded or intercepted the natural growth and development of the rights and relations between the defendant and her son, and benefited her son and, presumptively, within her contemplation, herself. She could not be permitted to thereafter repudiate the mortgage."

The other cited cases are also without analogy, and do not support the petitioner's contention here, and need not be distinguished further. The orders of the referee must be reversed, and the motion granted to set aside the sale and direct a new sale at auction in compliance with the legal requirements.

The referee's certified question, though not adequately presenting the situation, must be answered in the affirmative.

of ships with hydrocyanic acid gas, and he had given consideration to a method of making the gas safe by adding thereto a warning constituent, such as the lachrymatory gases used in the Great War. On March 10, 1920, he was appointed Chief of the Public Health Service with the title of Surgeon General, and subsequently conferred with his assistants upon the same project. Prior to August 5, 1921, he took up the matter with the Chemical War Service of the War Department as well as with the Department of Agriculture and the Department of the Interior. On October 28, 1921, he requested the Chemical Warfare Service to make an investigation at its laboratory at Edgewood Arsenal, in Maryland, of the practicability of generating fumes of chloracetophenone, a tear gas, simultaneously with the evolution of hydroeyanic acid gas. The laboratory reported results, and later a trial in practical ship fumigation was made at the Quarantine Station at New Orleans, but the process was found to be impracticable.

It was at or about this time that Houghton first began work upon the proposition. In the course of his duties as assistant chemist, he was instructed by Dr. Lewis R. Thompson, the official in charge of the Office of Industrial Hygiene and Sanitation, to study the technical literature relating to fumigation, and brought to Dr. Thompson's attention an article in a German publication entitled "Hydrocyanic Acid Derivatives for the Combating of Noxious Animals." Information was also obtained from other sources. Dr. Thompson took up with the Chemical Warfare Service an investigation of certain irritant gases, particularly the hydrocyanic acid derivatives, cyanogen chloride and cyanogen bromide, and on or about February 3, 1922, the officials at the Edgewood laboratory were directed to investigate the practicability of substituting cyanogen bromide, one of the cyanogen derivatives belonging to the same haloid group as cyanogen chloride, for hydrocyanic acid gas.

On or about March 1, 1922, the Surgeon General appointed a board, under his own control, to carry on the investigation, consisting of Dr. Thompson, as chairman, the defendant, Houghton, and Stephen Olop, an engineer in the Public Health Service. The board was directed to investigate methods of artificial ventilation of vessels subsequent to fumigation by cyanide gas, and to make studies as to the utilization of gases other than hydrocyanic acid gas, including an in

in generating hydrocyanic acid gas. It was clearly understood by Houghton at the time that the special duty of the board was to adopt a method of fumigation which would involve the use of a lachrymator as readily prepared and as toxic as hydrocyanic acid, and possessing sufficient irritating properties to serve as a warning. He also understood that cyanogen chloride was one of the lachrymators which the board was expected to investigate and consider.

On March 27, 1922, the members of the board visited Edgewood Arsenal and conferred with technical employees and chemists of the Chemical Warfare Service, who had already been investigating the problem. Subsequently it was arranged that Houghton should conduct experimental tests in toxic and lachrymatory gases at the arsenal, where facilities were available. He arrived on May 8, 1922, and was informed as to all that had been accomplished in the meantime. Prior to his arrival, certain suggestions had been made as to the manner in which cyanogen chloride might be generated. After his arrival, the investigation was pursued jointly by him and three employees of the laboratory, to wit, H. C. Knight, J. F. W. Schulze, and C. P. Shingler. They experimented as to the amounts of the several reagents, the mode of manipulation, and composition of gas. It was finally decided that a plan suggested by Houghton was the only practicable one. It consisted of the use of sodium chlorate, sodium cyanide, and dilute hydrochloric acid, and it was found that the gas produced was a mixture of hydrocyanic acid and cyanogen chloride. During the progress of the experiments, Houghton continually reported results to Dr. Thompson, and received orders from him for experiments and investigations. The problem was finally solved on or about June 28, 1922. The result was eminently satisfactory. Thereby a practical fumigant possessing the lethal qualities of hydrocyanic acid gas was obtained, together with a warning gas which was properly diffused throughout the mixture and remained in place as long as, but no longer than, the poisonous constituent.

While it is admitted on all hands that certain other officials of the government cooperated in the investigation, it is not contended that Houghton is not entitled to credit for the discovery. Nor is it denied that the new fumigant constitutes a patentable invention. It is claimed, however, that the discovery, when made, was the property of the

United States, and that the United States has also the equitable title, and by the decree in this case should be granted the legal title, to the patent granted to Houghton over the protest of the government.

Upon these facts, the decision in Standard Parts Co. v. Peck, 264 U. S. 52, 44 S. Ct. 239, 68 L. Ed. 560, 32 A. L. R. 1033, is controlling. By a written contract in that case, Peck, the employee, agreed with his employer to devote his time to the development of a process and machinery for the production of a spring. He succeeded in inventing a device which became the subject of a patent. Suit was brought against the employer by the assignee of the patent for infringement, whereupon the employer defended on the ground that the invention belonged to it under the terms of the contract, and prayed that it be adjudged to have title to the patent. The Supreme Court said:

"By the contract Peck engaged to 'devote his time to the development of a process and machinery' and was to receive therefor a stated compensation. Whose property was the 'process and machinery' to be when developed? The answer would seem to be inevitable and resistless of him who engaged the services and paid for them, they being his inducement and compensation, they being not for temporary use but perpetual

The Supreme Court approved the rule, enunciated by the District Court (295 F. 740), that if an employee be employed to invent a device or improvements in the machines with which he is connected, his patents therefor belong to his employer, since in making such improvements, he is merely doing what he was hired to do. The decision of the Circuit Court of Appeals, reported at 282 F. 443, was reversed. That court applied the rule, very generally accepted theretofore, that under a general contract of employment requiring an employee to devise such improvements as he can in the employer's machines, processes, or product, any patentable invention belongs generally to the employee, while the employer has a license to use it, unless there is an express agreement that the invention shall belong to the employer, and the court further held that this general rule should apply, although the employment was to devise or improve a specific thing subsequently discovered and patented. All that can be said for this rule was said by the Circuit Court of Appeals in its opinion; but the Supreme Court took the view that the law had been otherwise well settled by the cases

of Solomons v. U. S., 137 U. S. 342, 11 S. Ct. 88, 34 L. Ed. 667, and Gill v. U. S., 160 U. S. 426, 16 S. Ct. 322, 40 L. Ed. 480. In the former case the rule is stated as follows:

"If one is employed to devise or perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after successfully accomplishing the work for which he was employed, plead title thereto as against his employer. That which he has been employed and paid to accomplish becomes, when accomplished, the property of his employer. Whatever rights as an individual he may have had in and to his inventive powers, and that which they are able to accomplish, he has sold in advance to his employer."

In the latter case the same rule was reaffirmed as follows:

"There is no doubt whatever of the proposition, laid down in Solomons' Case, that the mere fact that a person is in the employ of the government does not preclude him from making improvements in the machines with which he is connected, and obtaining patents therefor, as his individual property, and that in such case the government would have no more right to seize upon and appropriate such property, than any other proprietor would have. On the other hand, it is equally clear that, if the patentee be employed to invent or devise such improvements his patents obtained therefor belong to his employer, since in making such improvements he is merely doing what he was hired to do."

It is not necessary to decide in this case whether the employer acquires title to inventions made by an employee in the course of a general employment to improve the machinery or process of the employer, for Houghton was directed to solve a specific problem. It is conceded that he was officially called upon to discover and develop a fumigant that would answer the purpose of the Public Health Service.

The only way in which the defendant distinguishes his case from Standard Parts Co. v. Peck is on the ground that, whereas Peck was expressly employed to develop a particular process, Houghton was employed generally as a research chemist, and was subsequently assigned to work out a particular problem. It has been held by recent decisions of the District Courts in Texas Co. v. Gulf Refining Co., 13 F. (2d) 873, and Goodyear Tire Co. v. Miller, 14 F. (2d) 776, that the setting of a general employee to do a specific work will not create a title of his invention in his employer, in the absence of an agreement to that effect.