tablishing infringement, and the range of equivalents must be measured by what is both described and claimed."

That the claim of a patent may be limited by words therein, attributing a special function to one of the elements, by reason of its form or position; and that an accused device will not be held to infringe, though it has a similar element, if that element does not and cannot produce that special function, see Gruendler Co. v. Hussman Co., 16 F. (2d) 571 (C. C. A. 8).

Does the Defendant's Device Infringe? Defendant's Exhibit 9, here reproduced, may be taken as illustrating defendant's device:

viz.: "Said pipe serving to determine the datum level and also as a passage for air to or from the chamber for restoring such level when required," these being essentials of the third element of the claim of plaintiff's patent. The datum level is determined in defendant's device by the small hole, known as the "air inlet," in the plate between the top bell and the bottom bell of the displacement chamber, in connection with the vacuum tank which operates to suck a supply of gasoline from the main tank to the vacuum tank.

Defendant's device is intended for use in automobiles employing a so-called "vacuum feed." When thus installed, the action of the device, as shown by the evidence, and which may be more readily understood by reference DEFENDANT'S EXHIBIT 9.

It is true that defendant's device has three elements of similar character to those in plaintiff's device; but it is to be noted that the first element (the displacement chamber) of defendant's device does not fulfill the requirement of the first element of plaintiff's device, viz. "the height of the air space above the fluid datum level being small relatively to the diameter of the chamber," this being one of the essentials of the first element of the claim of plaintiff's patent, and the evidence shows that the third element (the vent pipe) of defendant's device does not fulfill the requirement of element 3 of plaintiff's device,

to the figure, Defendant's Exhibit 9, is as follows:

A vacuum is created in the vacuum tank intermittently, and gasoline is thereby drawn from the main tank of the automobile through the gasoline tube, the open end of which projects into the bottom bell of the displacement chamber. The air pipe has its upper open end near the upper part of the gasoline tank, above the surface of the gasoline, and its lower open end near the bottom of the bottom bell. When the vacuum tank operates to suck gasoline from the main tank to the vacuum tank, air is sucked down through the

20 F.(2d) 583

air pipe into the bottom bell. Some of this air travels along the under side of the bell plate, and if the supply of air in the top bell has become depleted by absorption or otherwise, so that some of the gasoline has passed into this top bell through the opening in the bell plate, some of this air passing along the under side of the bell plate will pass through the opening into the top bell and force the gasoline out of the top bell, thus maintaining the supply of air in the top bell and in the connection leading to the U-tube. Surplus air drawn into the bottom bell passes through the wire gauze at the edge of the bell and bubbles up through the gasoline in the main tank.

Defendant's vent pipe, according to the testimony of Professor King, one of the witnesses for defendant, does not operate to determine the datum level. It does not act as a passage of air to or from the displacement chamber; but it is a mere safety device to protect the gauge from having its liquid either blown out at one end or sucked out at the other. If for any reason, such as filling the gasoline tank very rapidly, gasoline should be forced through the air inlet into the upper bell of the displacement chamber, it would, except for the defendant's vent tube, increase the air pressure in the air tube leading to the gauge and push the liquid out of the gauge; but owing to the presence of the vent tube, and owing to the fact that it has a cross-sectional area very much larger than that of the air inlet, this gasoline, being pushed into the upper bell of the displacement chamber, goes out through the vent tube, thus allowing the air in the upper chamber and in the air tube to remain constant. The result is that though a vent tube is present in the combination of defendant's device, yet, inasmuch as it performs neither the function of fixing the datum level, nor of allowing air to pass into or out of the upper bell of the displacement chamber, this vent tube element is not co-operatively present in producing the same result as is produced by plaintiff's device. Inasmuch as it is not co-operatively present in producing the same result, there is no infringement, since the test of infringement of a combination claim is that the accused device must employ the same elements, they must produce, when functioning, the same result, and must produce it in substantially the same way as the device of the plaintiff's patent.

The accused device in the case at bar lacks "that identity of means and identity of operation which must be combined with identity of result to constitute infringement." Kokomo

Fence Machine Co. v. Kitselman, 189 U. S. 8, 24, 23 S. Ct. 521, 47 L. Ed. 689; Werner v. King, 96 U. S. 218, 229, 24 L. Ed. 613; Anakin Lock Works v. Dillon Lock Works, 292 F. 45, 48 (C. C. A. 8); Johnson Automobile Lock Co. v. Noser, etc., Co., supra.

Furthermore, the function which the vent tube in defendant's device does perform is one which the vent tube in the plaintiff's device cannot perform. This is stated by the witness King, and the reason given is that the position of the vent tube in plaintiff's device, and the very insufficient size of the vent tube as compared with the pipe c prevents it from performing the function which is actually performed by the vent tube in defendant's device. Our conclusion is that plaintiff's patent is not infringed by defendant's device.

As this conclusion on the question of infringement disposes of the case, we do not deem it necessary or advisable to discuss the validity of plaintiff's patent. It is sufficient to say that we have assumed it to be valid, if construed with the limitations that we have pointed out.

Decree affirmed.

UNITED STATES SHIPPING BOARD
EMERGENCY FLEET CORPORATION v.
FLORIDA GRAIN & ELEVATOR
CO.

Circuit Court of Appeals, Fifth Circuit.
July 7, 1927.

No. 4690.

1. Shipping ~141(1)—Under provisions of bills of lading, vessel was not liable for delay incidental to call at particular port, except as due to its negligence.

Where bills of lading authorized vessel to call at particular port, and provided it should not be liable for any loss caused by prolongation of voyage, vessel was not liable for delay, except as due to its negligence.

2. Shipping 132 (334)-Shipper, suing for delay in delivery of corn, had burden of showing negligence (Suits in Admiralty Act 1920 [Comp. §§ 1251–12517]).

In action under Suits in Admiralty Act 1920 (Comp. St. §§ 1251-125141) against United States Shipping Board Emergency Fleet Corporation to recover damages for delay in delivery of shipment of corn, plaintiff had burden of showing that delay was due to defendant's negligence.

3. Shipping 126-Delay of vessel at port of call, due to owner's failure to furnish suffi⚫cient funds for unloading at prevailing prices, held due to owner's negligence.

Delay of vessel at port of call, due to stevedores' strike and failure of owner to furnish

20 F.(24) 683

saved. The bills of lading also provided that the ship should have liberty to call at any port in or out of the customary route to land or receive goods or passengers, and should not be liable for any loss or damage caused by a prolongation of the voyage. The corn deteriorated in value because of the long delay in transit, and the purchasers at Havana refused to accept it. On December 23 it was sold for $11,337.36, and that amount was received by the shipper, but without prejudice to its rights. At that time the market value was $1.39 per bushel.

The libel claimed the right to recover the market value as of September 20, less the proceeds of sale. The testimony of a commission merchant and merchandise broker in Havana was taken by deposition. The shipper's interrogatories called for market value of corn of the grade that was shipped on each of the days from September 15 to September 20, and cross-interrogatories on behalf of the Hoosac called for such market prices on November 17, the date of arrival at Havana, and on each day thereafter through December. The witness gave testimony tending to show that the market value was $2.07 per bushel on September 18, $2 on September 20, and $1.39 on December 28, but failed to give values on any other of the dates inquired about, stating in that connection that he had no records available for reference on which to base his answers.

The District Judge held the carrier liable for the delay after arrival at Matanzas, and that this delay caused the deterioration complained of in the quality of the corn, but that the resulting damage ought to be measured by the difference between the amount realized at the sale in December and the contract price, rather than by the difference between such sale price and the market price. Further testimony was taken to determine more definitely the contract price, and the decree based thereon represents the difference between the amount realized at such sale and the contract price, with interest at 8 per cent., the legal rate in Florida, up to the time of the entry of the final decree.

The Fleet Corporation appeals, and contends that the decree ought to have been based on the market price in Havana on the date when delivery should reasonably have been made, that such delivery could not reasonably have been required until later than September 20, the last date on which market value was shown by the evidence, until December 28, and that, assuming a market value of $1.39 per bushel on December 23,

the most that can be recovered is the differ-
ence between $11,337.36, received by the
shipper, and $13,900 the market value, or
$2,562.54.

[1-4] The bills of lading authorized the
Hoosac to call at the port of Matanzas, and
provided that it should not be liable for any
loss or damage caused by a prolongation of
the voyage. In view of these provisions, ap-
pellant only became liable for so much of the
delay as was due to its negligence. Cau v.
Texas Pacific Ry. Co., 194 U. S. 427, 24 S.
Ct. 663, 48 L. Ed. 1053. The burden was on
appellee to show that any delay in arriving
at Matanzas was caused by appellant's negli-
gence. The Lennox (D. C.) 90 F. 308. This
burden appellee failed to meet. The long
delay at Matanzas was undoubtedly attribut-
able to appellant's negligence, and it is there-
fore liable for all damages sustained after
the expiration of a reasonable time for dis-
charging cargo at Matanzas. We are of
opinion that it was error to adopt the con-
tract price as the measure of such damages.
[5, 6] The general rule is that the measure
of damages for a carrier's negligent delay in
the delivery of goods is "the diminution in
the market value of the goods between the
time they ought to have been delivered and
the time they were in fact delivered." 4 R.
C. L. 931. Special damages for such delay
are not recoverable, unless the carrier had
knowledge or notice of the special use to
which the goods were to be put. Appellee's
export declaration did not give or imply no-
tice that the corn had been sold at any par-
ticular price, or at all, but merely gave the
market value at the time and place of ship-
ment. Besides the bills of lading fixed the
liability of the carrier upon the basis of
market value at the port of destination. The
damages must therefore be based on the mar-
ket value at Havana at the time when the
goods should have arrived, which would be
within such reasonable time after September
24 as would allow for unloading cargo at
Matanzas.

Appellee's evidence as to market value relates to dates that were past when liability is shown to have attached. The time reasonably necessary for unloading at Matanzas is not shown, and should be fixed, so that the market value at the correct date can be determined. Appellant seems to concede that the Hoosac should have been unloaded at Havana by the 1st of October. If the market price was higher at the time when the goods should have been delivered than it was in December, appellee is entitled to the benefit

of such higher market price. When the District Court adopted the contract price as the basis for ascertaining damages, appellee was excusable for its failure to submit further proof of market value. In the present state of the record, in view of our conclusions in regard to the proper measure of damages, appellee would have to be content with the market value in December, which it may be was much lower than it was during the last part of September or the first part of October. Under all the circumstances, opportunity will be given to each of the parties to submit still further testimony to the District Court on the question of market value of corn at Havana covering the relevant period between September 24 and December 23, 1920.

[7] Appellant also contends that it was error to allow interest at 8 per cent., the legal rate in Florida, from the date the liability became fixed to the date of the final decree, and insists that interest is fixed by statute at the rate of 4 per cent. per annum before as well as after the date of the final decree. On the other hand, appellee contends that interest at a higher rate, particularly that prevailing in the state where suit is brought, may be allowed, as damages for the detention of money, up to the time of final decree. The decree does not specify the rate of interest which it shall draw. These conflicting contentions are based on section 3 of the Suits in Admiralty Act (Comp. St. § 12514 b), the pertinent part of which reads as follows: "A decree against the United States or such [fleet] corporation may include costs of suit, and when the decree is for a money judgment, interest at the rate of four per centum per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based. Interest shall run as ordered by the

court."

[8] The only rate of interest mentioned, in the absence of contract, is 4 per cent. It is true that such rate of interest is provided until the decree is satisfied, but whatever argument may be advanced to the effect that interest accruing prior to the date of the decree was not intended to be included is made to lose its force by the concluding sentence: "Interest shall run as ordered by the court." That sentence doubtless was inserted in recognition of and for the purpose of continuing the well-known practice in admiralty of allowing interest or not prior to the entry of the decree, according as the court in its discretion might determine. The first portion

of the language quoted confers upon the courts at least the power to include interest after the date of the decree, and the last sentence confirms a like power to allow interest before the date of the decree.

The only interest provided, in the absence of special contract, is at the statutory rate of 4 per cent., regardless of the interest rate prevailing in the state where suit is brought. The context shows that the word "interest" in the concluding sentence means interest at the rate fixed in the first sentence. A given rate of interest having once been provided, and there being no mention of any other rate, a different rate will not be implied, but the same rate is to be understood, in any subsequent reference to interest.

The decree is reversed, and the cause remanded, with directions to give appellee an opportunity to take further testimony on the question of the measure of damages, and for further proceedings in conformity to this opinion.

1.

WALSH et al. v. E. G. SHINNER & CO.,
Inc.

Circuit Court of Appeals, Third Circuit.
July 5, 1927.

No. 3617.

Landlord and tenant 195(2)—Under law of Ohio, landlord, re-entering after vacation of premises by tenant before end of term, must mitigate damages by re-renting to suitable and available tenant.

Under the law of Ohio, as shown by the reported decisions of its courts, a landlord, who has re-entered and regained possession of premises vacated by tenant before end of term, must mitigate damages for breach of lease by re-renting if suitable tenant is available, and this rule is applicable law in a federal court in an action involving an Ohio lease. 2 Courts

of

109-"Syllabus rule" of Ohio applies only to its Supreme Court.

The law of Ohio, which limits the authority

decisions of its Supreme Court to points stated in the syllabus, does not apply to other appellate courts of the state.

[Ed. Note.-For other definitions, see Words and Phrases, Syllabus.]

In Error to the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge.

Action at law by James F. Walsh and Vincent A. McGuire against E. G. Shinner & Co., Inc. From the judgment, plaintiffs bring error. Affirmed.

Speaking of the plaintiffs below, plaintiffs in error, as the landlords, and the de