conduct of the adopting parents are such as to furnish clear and satisfactory proof that an agreement of adoption must have existed, then the agreement may be found as an inference from that evidence. The decree is right, and it is affirmed.

NOTE.

Evidence of Adoption of Child.

I. IN GENERAL.

(Ill.) That Act March 9, 1867, making Mary M. the adopted daughter of a certain man and his wife, designated her as "Minnie M.," did not render the statute ineffectual, where the proof clearly showed the identity of the person sought to be adopted.-Sayles v. Christie, 58 N. E. 480, 187 Ill. 420.

(Iowa) In a suit where an adoption, consented to by the father alone, was attacked, held that under Code, § 3251, evidence as to the mother's reason for leaving the father was admissible.--Seibert v. Seibert, 153 N. W. 160.

(S. D.) The heirship of an adopted child is established by the order of the court in the proceedings adopting it.-Quinn v. Quinn, 5 S. D. 328, 58 N. W. 808.

(Tex.) On an issue as to the adoption of a child, where the adoption paper has been lost, and the probate records of the county burned, circumstantial evidence, including the acts and declarations of the parties is admissible.Moore v. Bryant (Ct. Civ. App.) 31 S. W. 223.

II. PRESUMPTION AND BURDEN OF PROOF.

(La.) The burden of proving that the adoption of a child in Massachusetts was repugnant to Civ. Code 1870, art. 214, providing for the adoption of a child where the person adopting is at least 40 years old and at least 15 years older than the person adopted, was on the party attacking the adoption.-Succession of Caldwell, 38 South. 140, 114 La. 195, 108 Am. St. Rep. 341.

(Mo.) One claiming the custody of a child as against its natural parent, under an oral adoption agreement, must show such agreement by the clearest and most incontrovertible evidence.-Beach v. Bryan, 133 S. W. 635.

(N. Y.) The fact that decedent was taken from an orphan asylum in another state when he was about seven years old, where he and a brother had been placed on the death of their parents, and took the name of the people with whom he lived, and continued to live with them until he reached his majority, being treated by them as a son, in the absence of evidence of a statutory adoption, is insufficient to raise a presumption of legal adoption.-In re Huyck's Estate, 99 N. Y. Supp. 502, 49 Misc. Rep. 391.

(S.D.) The fact that one is an Indian, and during a portion of his childhood probably resided in the family of another Indian, justifies no presumption that the former was an adopted son of the latter.-Henry v. Taylor, 93 N. W. 641, 16 S. D. 424.

(Tex.) In trespass to try title in which defendant claimed as the adopted heir of a certain person, the burden was on defendant to prove that he owned an interest in the land as an adopted heir.-Powell v. Ott, 146 S. W. 1019.

III. WEIGHT AND SUFFICIENCY.

(Ill.) A statute authorizing the adoption of children provided that the adopter might present a petition to the circuit court or county court of his or her residence, alleging the name, age, and sex of the child, and, if such person desired the name changed, stating the new name, the name of the father, or, if he be dead or has abandoned his family, the mother, and, if she be dead, the guardian, if any, and the consent of such father or mother to the act of adoption, and, if the child was without father or mother, then the consent of no person should be necessary to such adoption, etc. Held, that where defendant claimed she was adopted under a decree passed more than 38 years before, and all the files and records had been destroyed in the meantime, evidence of the attorney for the adopting parents that the petition asked for the adoption

of the child, that it contained statements of the death of the child's parents, that the petitioner had had the child since she was an infant, that C. and his wife were the child's parents, that they were both dead, that she had no guardian and asked for a change of her name to that of the adopters, and that the petition contained everything required by statute, was sufficient to show that it contained the jurisdictional facts.-Kennedy v. Borah, 80 N. E. 767, 226 Ill. 243.

(Iowa) Evidence in a partition suit held insufficient to establish plaintiff's claim that he had been adopted by deceased, and therefore was entitled to all the property in controversy.--Daniels v. Butler, 149 N. W. 265, decree modified on rehearing 150 N. W. 1081.

(Minn.) Evidence held to show that a child unrelated to intestate by blood was taken into her home under an agreement by her and her husband to make such child their heir, which agreement was evidenced by a writing subsequently lost. In re Herrick's Estate, 144 N. W. 455, 124 Minn. 85.

(Mo.) Evidence considered, and held insufficient to show an oral contract of adoption.-Wales v. Holden, 108 S. W. 89, 209 Mo. 552.

(Mo.) Promise by a husband to adopt wife's illegitimate child held sufficiently proved by proof of his treatment of the child as his son and proof of his declarations concerning such promise and concerning his intentions to leave his property to such child.-Martin v. Martin, 157 S. W. 575, 250 Mo. 539.

(Okl.) Where many years have elapsed since an adoption proceeding, and the records of the court had been destroyed, and the judge and the clerk thereof had died, testimony of a witness that he was present and heard the order of adoption and read it on the records, and evidence that the child lived from said time until the death of the adopting parent with him, and was recognized as his child, sustains a finding of adoption.-Coombs v. Cook, 129 Pac. 698, 35 Okl. 326.

(Pa.) A will under seal which mentions a legatee as an adopted child cannot be taken as conclusive evidence of prior adoption, where the extrinsic evidence in the record is sufficient to warrant a finding that the fact of adoption was not proved. In re Phillips' Estate, 17 Pa. Super. Ct. 103.

(S. D.) The statement of a witness that he was adopted by a certain other person when a child is of no probative force, in the absence of any production of an order of adoption in proceedings under the statute, or any evidence to show that legal steps were taken or the record lost or destroyed.-Henry v. Taylor, 93 N. W. 641, 16 S. D. 424.

(Tex.) In a probate proceeding, where petitioner claimed as heir by adop tion of deceased, evidence examined, and held insufficient to show heirship.McColpin v. McColpin's Estate, 75 S. W. 824.

(222 Fed. 506)

TRUSSED CONCRETE STEEL CO. v. GOLDBERG et al.
(Circuit Court of Appeals, Sixth Circuit. May 4, 1915.)

No. 2585.

PATENTS 328-INFRINGEMENT CONCRETE FLOOR CONSTRUCTION. Claim 4 of the Buente patent, No. 681,870, for fireproof floor construction, consisting of concrete joists, reinforcing trussed structures therein, and hollow refractory centers between the trussed structures, and the Kahn patent, No. 768,284, for a combined steel and concrete beam, as limited by the prior art, held not infringed.

Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.

Suit by the Trussed Concrete Steel Company against A. L. Goldberg and others. From a decree dismissing the bill, complainant appeals. Affirmed.

E. N. Pagelsen, of Detroit, Mich., for appellant.

C. P. Byrnes, of Pittsburgh, Pa., for appellees.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN, Circuit Judge. Suit for infringement of United States patent No. 681,870, September 3, 1901, to Buente, on fireproof floor construction, and United States patent No. 768,284, August 23, 1904, to Kahn, on combined steel and concrete beam. The District Court held neither patent infringed, and accordingly dismissed the bill.

The structure of Buente's patent in suit consists, broadly, of a series of concrete joists, metal reinforced, having hollow tile or refractory centers between joists; the concrete not only inclosing the reinforcement which helps form the joists, but completely filling in the space between the tiles. The floor was designed to be constructed "in place," as distinguished from a factory construction. In building floors of this general nature in place, it had been customary to use temporary supports or "centering" for sustaining the weight of the wet and heavy concrete structure during the setting and drying process. The first of the three objects of the invention stated in the specifications was to dispense with these temporary supports. Buente accordingly provided a wooden sleeper connecting the main floor beams (or extending from the floor beams to the wall), represented by the numeral 2 in Fig. 1 of the patent drawing here reproduced, being a partial vertical section. taken at right angles to the main floor beams.

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

The drawing shows a series of plates 3 projecting beyond the sides of the floor joists, each plate provided with a depending support 4 having a clip 5 secured at its lower end, the clip supporting the tile. "A truss wire 6 preferably secured to angle bars 7 at the ends of the sleeper extends through these clips, forming a trussed structure." Supplemental truss wires or rods 8 (inclined in opposite directions on opposite sides of the center of the sleeper) extend from the end of each plate 3 downwardly to and secured in the clip at the lower end of the next rod 4. Fig. 4 below is a partial side elevation of the "trussed floor sleeper" of the patent.

7

Fig.4.

2

8

VANN

Fig. 2, below, is a broken cross-section at right angles to Fig. 1, and shows one form of construction disclosed, including the tile 9 and the shoulders 10 resting on the clips 5.

Claim 4 is the only one involved, and reads as follows:

"4. In fireproof flooring, a series of concrete joists containing reinforcing truss structures and hollow refractory centers between the trussed structures, substantially as described."

The claim thus covers three elements in combination: (1) The concrete joists; (2) reinforcing truss structures therein; (3) hollow refractory centers between the trussed structures.

The defendant's alleged infringement consists in their use, in their own building, of the so-called Gabriel trussed bar, as reinforcement for concrete in a tile and concrete floor. A section of the bar partly inclosed in the concrete is shown below.

The important defense is that the claim in suit, if so construed as to cover defendant's structure, is invalid in view of the prior art.

The theory of reinforcement of concrete is that the upper part of a beam under load receives compression, while the lower part is subject to tension; that concrete strongly resists compression stresses, but only slightly resists tension strains; steel, which has strong tensile resistance, when inserted below the neutral axis of the beam, reinforces the concrete by supplying the element which the latter lacks.

Buente was by no means a pioneer in the art of metal reinforced concrete (or cement) and tile floor construction. For example: As early as 1877, 24 years before the patent in suit, Hyatt (British, No. 289) disclosed metal-reinforced cement or concrete beams supplemented by hollow tile construction, capable of being made either in factory or in place. Lee (1894, No. 522,426) showed a floor "formed of tile blocks cemented together and tension rods cemented in the base of the floor." This general form of construction was extensively commercially manufactured previous to Buente. Crawford (1899, No. 621,446) showed a metal joist in the form of an I-beam embodied in concrete, with hollow tile between the joists, surrounded by concrete except on the lower side of the beam. McCarthy (1891, No. 461,960) had disclosed, in connection with tile construction, wire tension supports inbedded in concrete, although not as a part of the joists.

Nor was metal reinforcement in truss form unknown when Buente entered the field. The familiar theory of the truss is that the tension