his willingness to undertake the $100,000, adding that French had carefully gone over the figures, which he would submit, if desired. This plan was to lift the separated arms upon car floats and rejoin the draw into one piece. The representative of the counties refused to consider the plan, and nothing came of the suggestion.

At the hearing before the commissioner, Hibbard again produced French and Ripley, who then testified fully as respects their calculations and the plan. On the other hand, the counties called engineers to show that the plan was not feasible, and that the cost of proper reconstruction would be substantially greater than $100,000. The commissioner found that the plan was practicable, but that in some respects Ripley's figures were too low. These related to the cost of certain of the materials, to certain extra charges, and to an allowance for supervision by the counties' engineers. He awarded $130,000, with interest.

Burlingham, Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and P. Fearson Shortridge, both of New York City, of counsel), for Hibbard.

Hunt, Hill & Betts, of New York City (George C. Sprague, of New York City, of counsel), for the counties.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above). [1] The French plan either was, or it was not, such that the counties were bound to use it; the same is true of Ripley's estimate. The commissioner has found that the plan was practicable, and, though he has not expressly said so, his report is consistent only with the finding that it limits the counties in their damages. We start with that assumption. So far as Ripley's estimate covered the repairs, we cannot see that it makes any difference that it was not in the form of an offer. It was equally available, and the counties might not reject it, any more than any other victim of a tort may reject the best means of recoupment at hand. However, there is considerable doubt whether it covered that testing of old material which the counties' experts demanded. If it did not, Ripley would presumably not have stood by it, but would have required a larger sum. The commissioner appears to have thought that the added expense could be covered by the owner's engineering charge. That would be true, if he did the testing, and it resulted in no added loss of material; but it is not apparent that either is true. We can solve

There remains, then, only the question of what it did not cover, upon which it does not seem to us necessary to say much. Of the extras which the commissioner allowed at $4,000 we allow for the railing, painting, and bond $2,750, to which we add 20 per cent. of their cost, or $3,300 in all, making $103,300 as the basic price.

It seems to us that Hibbard has not proved that the counties' engineers were fitted to supervise the construction, which, being altogether novel, might reasonably have required close scrutiny. The customary allowance for this is 10 per cent., making the total award $113,630, instead of $129,558. As the whole estimate is plainly speculative at best, we will reduce the award by $15,000, making it $115,000, instead of $130,000. [2, 3] The commissioner allowed interest from November 22, 1922, five months after the collision, at which time the draw could have been completed. Had the bridge been repaired, this would, of course, have been proper, because by that time all the money would have been expended. However, none of the repairs were ever made, and Hibbard argues that in this circuit interest cannot be allowed in the admiralty, except upon actual repairs. We know of no such doctrine, and regard the question as determined by the same rules which apply to other forms of action, except that the award is always discretionary. The allowance of interest has in recent years been granted with increasing liberality, and the case at bar falls within our rulings in Stephens v. Phoenix Bridge Co. (C. C. A.) 139 F. 248, Demotte v. Whybrow, 263 F. 366 (C. C. A. 2), and Lehigh Valley R. R. v. State of Russia, 21 F.(2d) 396 (C. C. A. 2). Before the claim of the counties had been filed, the items now allowed by us were already fixed, or capable of easy ascertainment. Ripley's estimate had been made, the value of the extras could be learned from existing prices for such work, and the percentage for supervision was established in such cases. Perhaps the commissioner might have awarded interest from an earlier time, but, as the point is not raised, we need not consider it.

Decree modified, by reducing the award to $115,000, and, as modified, affirmed. No costs.

Suit by Percy C. Osteen against the Ansco Photoproducts, Inc. Decree for plaintiff, sustaining claim of patent No. 1,195,976, granted to plaintiff August 15, 1916, for improvement in cameras, and holding it infringed, and defendant appeals. Reversed, with directions.

Pennie, Davis, Marvin & Edmonds, of New York City (Dean S. Edmonds, of New York City, and Philip S. Hopkins, of Binghamton, N. Y., of counsel), for appellant.

Couper & Terry, of Binghamton, N. Y. (Mack W: Terry, of Binghamton, N. Y., B. P. Fishburne, of Washington, D. C., and J. Alex Neely, Jr., of Anderson, S. C., of counsel), for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge. The patent in suit relates to folding cameras of the familiar type, adapted to take photographs upon a film rolled upon reels mounted within the casing of the camera and fed from the supply reel to the take-up reel step by step as the pictures are taken. There were devices for the automatic winding of the film before folding cameras were in use, and it had long been realized that if, by reason of any carelessness, the film was not advanced after operating the shutter before another picture was taken, two exposures would be made upon the same section of the film, and likewise, if the film was advanced after taking the picture, and the operator subsequently forgot that this had been done, and advanced it again, one section of the film would be wasted.

To solve these inevitable difficulties arising from carelessness of operation, it had

been an invention of long standing to provide a spring motor in box cameras for winding off the film step by step, and to release the spring motor each time the shutter was operated. The United States patent, No. 506,210, to R. G. Barrill, issued October 10, 1893, illustrates an automatic wind connected

In this

with the shutter in a box camera. patent, when a lever is pressed lengthwise, a dise known as the shutter leaf is revolved, followed by the operation of a spring motor to wind off a section of the film. The still earlier patent, No. 417,871, to H. Laney, issued December 24, 1889, shows a lever in a box camera, the depression of which allows a spring to rotate the shutter. The shutter

during its rotation operates a second lever,

to release a third lever that drives the film.

When the box camera was succeeded in popularity by the folding camera, it was to be expected that the general features which had been discovered to be advantageous in box cameras would be employed, so far as practicable, in the folding camera.

By folding camera is meant a camera with an opening in its front wall in which a rectangular platform, known as the hinged front, is pivotally mounted. This front may be turned upon its hinge to a horizontal position, and the shutter may be drawn out over the platform thus provided; the bellows expanding as the shutter is so moved, to maintain the light-tight passage from the shutter back to the film.

Osteen, the patentee in this case, sought to apply an automatic wind for the film under the control of the shutter to a folding camera. He proposed to use a spring motor for feeding the film, as had long before been done in box cameras, and proposed an operating connection between shutter and motor, as others had done before. But not only was the application of these ideas to box cameras well known, but, when attempting to apply them to folding cameras, Osteen entered a field already crowded. When he attempted to apply these old elements to a folding camera, he had to make some provision for folding the parts connecting the shutter and motor, as the hinged front of the camera was pivoted into a closed position.

But the Johnson patents, Nos. 1,083,743 and 1,166,763, had already disclosed pneumatic means for operating the shutter and governing a spring motor to wind off the film in a folding camera. These connecting means were foldable, and mounted in part upon the platform and in part upon the casing of the camera.

The German patent, No. 274,841, to Beyerlen, and United States patent, No. 866,877, to Moore & Saffold, had likewise already disclosed devices for operating the shutter in a folding camera and releasing a spring motor for winding off the film, under the control of the shutter mechanisms, but employing flexible wire-operating devices, instead of the pneumatic devices already mentioned. These flexible wires were folded into the space about the shutter when the camera was closed.

The third Johnson patent, No. 1,103,418, granted July 14, 1914, not only related to a folding camera having an automatic motor wind under the control of the shutter mechanism, but employed rigid mechanical connections, instead of pneumatic tubes or flexible wires, to furnish interconnecting parts. It may be seen from the drawings that the forward end of shaft 44 has universal joint 45. This collapsible shaft served to operate the shutter mechanism and was connected with the spring motor. The telescopic and universal joints made it possible to move the shutter out from the platform to the operative position and back into the casing to fold the camera. The universal joints are for the same purpose as the ruler joint of Osteen's lever, and the shaft is mounted partly upon the hinged front or platform and partly upon the casing.

There was, lastly, in the prior art the patent to Brauner & Rosen, No. 1,253,205. The application for this patent was nearly a year before Osteen's patent was applied for, so that it was prior art, under Milburn v. Davis-Bournonville Co., 270 U. S. 390, 46 S. Ct. 324, 70 L. Ed. 651. This Brauner & Rosen patent shows a sliding rod operating in a guide and projecting along the front of the folding camera. It is connected through the medium of a gear and associated elements with the flexible wire which leads to the shutter mechanism. The sliding rod connects the flexible wire with a reciprocating bell-crank lever that operates the mechanism to release the spring motor so that the film is wound upon the take-up reel. In this patent the mechanism connecting the releasing means with the shutter are foldable, and they are carried partly by the body of the camera and partly by the hinged front.

Such being the state of the art in respect to devices in folding cameras for an automatic wind for the film under the control of the shutter, Osteen obtained his patent on August 15, 1916, and has secured a decision from the District Court that claim 2 is valid and infringed. This claim reads as follows: 27 F. (2d)-44

"In a camera, a body, a hinged front therefor, a shutter supported on said hinged front, a film-receiving spool rotatably mounted in said body, means normally tending to rotate said spool, means to lock said spool against rotation, means for releasing said locking means, and foldable means carried partly by said body and partly by said hinged front connecting said releasing means with said shutter for actuating the latter."

If the terms of this claim be taken as they read, the plaintiff is confronted with the fact that it is anticipated by Johnson and by Brauner & Rosen. He consequently seeks to exclude "pneumatic means" in interpreting the words "foldable means," so as to avoid the first Johnson patents, and in the same way to exclude "flexible means," in order to escape the Beyerlen and Moore patents. Having thus limited himself by exclusion to a rigid mechanism, he is met by the shaft of the third Johnson patent, with its universal joint, and by the rod and bell-crank lever of Brauner & Rosen. To avoid this prior art the patentee must practically confine himself to the structure specifically disclosed in his patent. But, if he does this, the defendant does not infringe. Its device follows United States patent, No. 1,268,805, to Topliff, G. Bornmann, and E. C. Clark. The lever which it uses is not foldable, for it has nothing like the ruler joint of the patent in suit on which it may fold itself, but has a solid lever pivoted on the body of the camera. therefore, does not fold, but swings as a whole, and likewise is not "carried partly" by the hinged front, as claim 2 specifies.

It

Claim 2 was originally claim 8 in the patentee's application, and was rejected by the Patent Office upon the Beyerlen patent.

This patent showed a flexible wire connection for operating the spring motor, carried solely by the body portion of the camera. Claim 8, which before the amendment had read "means connecting said releasing means with said shutter for actuating the latter," was changed so as to read "foldable means carried partly by said body and partly by said hinged front, connecting said releasing means with said shutter for actuating the latter." After obtaining the allowance of his claim by the insertion of these new elements, the patentee cannot now be heard to insist that the "means" need not be foldable, and need not be carried partly on the hinged front.

Furthermore, the claim reads so closely on the Brauner & Rosen device that there

would seem to be no room for invention. Even if the third Johnson patent, in view of the already crowded state of the art, be not regarded as fatal to plaintiff's case, Brauner, as well as Osteen, has a flexible wire extending through a flexible woven tube in order to operate the shutter. The only difference between them in this respect is that Osteen has the flexible wire extending first to the shutter and then beyond to a junction with the other parts, forming the connection between the shutter and the spring motor; whereas, in Brauner, the flexible wire extends first to this junction with the other parts of the mechanism, and then on to the shutter. In Brauner the reciprocating rod 12, and in Osteen the rocking member 57 move upwardly when the shutter is operated to effect the release of the spring motor. The difference is that Osteen's lever is a long one, pivoted to the platform at 64, and Brauner's has a short stem having a pivotable connection 59, with a bell crank lever 10 fulcrumed at 11. In Osteen the ruler joint 65, and in Brauner the pivot 59, afford means for folding the mechanism. The fact that in Brauner's camera the part 8 reciprocates, instead of turning about a pivot is unimportant. The two patents disclose merely different forms of levers. In the Brauner patent a reciprocating rod is carried by the front and the bell crank by the body; whereas, in the Osteen patent, the portion of the lever to the right of the ruler joint is carried by the front and the rear portion by the body. There seems to be a complete anticipation of claim 2 by the Brauner patent, and in any event the substitution of such an obvious equivalent as a bell-crank lever device for the pivoted lever of Osteen is insufficient to indicate invention.

It is, moreover, to be noted that no cameras have ever been manufactured under plaintiff's patent, and he seems to have shown no adequate experience in such matters. He testified that, when he took out the patent, he was in the "barber business," and at the time of the trial was "in the theater business." The rough device, which he made in 1915, he testified was not made in accordance with the drawings of his patent. It is quite unlikely that a man with such experience could have contributed a meritorious invention to a technical and complicated art, and, at least so far as the claim in suit is concerned, there would seem to be no evidence that he ever did.

The decree is reversed, with directions to dismiss the bill, because of invalidity and noninfringement.

In re KARDOS et al. Circuit Court of Appeals, Second Circuit. July 9, 1928.

1. Bankruptcy

No. 356.

140(8)-Claimant, depositing bonds as margin with bankrupts, held not entitled to preferred claim, where bonds were repledged before claimant began trading, and later surrendered.

Where claimant delivered bonds to brokers,

later becoming bankrupt, as margin for trading account, and brokers converted bonds by repledging them before claimant began trading operations, and bonds were surrendered to receiver in bankruptcy after bankruptcy proceedtled to preferred claim to redelivery of her ings were commenced, claimant held not entibonds.

2. Bankruptcy 140(8)-Facts showing sales of stock by brokers, where no deliveries were made, were nullities.

In bankruptcy proceeding, facts held to show that sales of claimant's stock by brokers, later becoming bankrupt, where no deliveries were made, were nullities.

3. Bankruptcy 140 (8)-Claimant delivering stock to bankrupts to be sold could reclaim proceeds of sale traced into certain account, where another purchase was not made as directed.

Where claimant delivered stock to brokers, later becoming bankrupt, to be sold, with instructions to purchase other stock, and brokers did not make sales in fulfillment of orders,

but turned stock over to other brokers, who sold same for account of bankrupts, and bankrupts did not purchase other stock as directed, performance, and reclaim proceeds of sale which

claimant could rescind contract for failure of

were traced into account of bankrupts with trust company, since proceeds of sale could only be used to purchase other stock, and, whether sales through the other brokers were regarded as made under claimant's order or as wrongful conversion, proceeds were his in either event. 4. Bankruptcy 140 (8)-Claimant, directing bankrupts to purchase stock, held entitled to preferred claim, where bankrupts purchased stock through other brokers, but did not pay for same.

Where claimant directed brokers, later becoming bankrupt, to purchase stock, and brokers purchased same day through other brokers, but did not pay the other brokers, who were carrying this and other securities for their that Stock Exchange deliveries were ordinarily account, and claimant sent check the same day made, and the other brokers, in liquidating their account with bankrupts, sold stock and turned over proceeds and other cash and securities ruptcy, claimant held entitled to preferred claim. which survived liquidation to receiver in bank

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

In the matter of the bankruptcy of Louis M. Kardos, Jr., and John Burke, individually

and as copartners, composing the firm of Kardos & Burke, in which L. Barton Case was trustee. Katherine Wilson, Howard O. Crusey, and Alice R. Ablett filed claims. From portions of an order determining a so-called omnibus reclamation proceeding in the bankrupt estate of Kardos & Burke, Katherine Wilson, Alice R. Ablett, and the trustee appeal. Order modified.

See, also, 17 F. (2d) 706.

David W. Kahn, of New York City, for appellant Case.

McKerchner & Link, of New York City (Herman M. Pogul, of New York City, of counsel), for appellant and appellee Wilson. Saul S. Myers, of New York City (Earl B. Barnes, of New York City, of counsel), for appellant Ablett.

Francis R. Holmes, of New York City, for Crusey.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge. The bankrupts were stockbrokers doing business in New York. They did not trade directly on the New York Stock Exchange, but transacted their Stock Exchange business through certain Stock Exchange houses, among them Marks & Graham. They took orders from their customers to buy or sell securities listed on the New York Stock Exchange, and transmitted the orders to Marks & Graham (or other Stock Exchange firms), without the knowledge of the customer, and without disclosing the customer's identity to Marks & Graham. So far as the books of Marks & Graham showed, the bankrupts were marginal customers of that firm. When the failure of the bankrupts occurred, Marks & Graham were both short and long of a large volume of securities in the bankrupts' account, and thereafter proceeded to liquidate the account and turn over to the estate the surplus cash and securities remaining after the payment of the indebtedness owing to them.

Claim of Katherine Wilson.

[1] This claimant delivered to the bank rupts on January 30, 1922, two bonds of the Tacajo Sugar Company, having a par value of $2,000. The bonds were deposited as margin for a trading account, which Miss Wilson proposed to open with Kardos & Burke. They at the same time gave to her a receipt, in the form commonly given to their margin customers, whereby they were authorized to repledge all securities held for the account of their customer for sums due thereon, or for

any greater sums. On February 1st the bankrupts delivered these bonds to their brokers, Marks & Graham, by whom they were credited to the account of the bankrupts, which was a brokerage account for the buying and selling of securities.

On February 2, Miss Wilson began to buy and sell securities through the bankrupts, continuing these operations until February 23, when the bankruptcy occurred. Thereafter Marks & Graham liquidated their account with Kardos & Burke, and there remained over a surplus of cash and securities, which were surrendered to the receiver. In such surplus securities were contained the two Tacajo Sugar bonds, which had not been sold, because they had not a sufficient market.

The claimant filed a petition in the omnibus proceeding to recover her two bonds. The trustee in bankruptcy contended that they were subject to the burden of the loan of Marks & Graham to Kardos & Burke, on the ground that the claimant was in the same position as their other margin customers, and should, therefore, share in the proceeds of the loan with them; and the master so held. The District Court, however, reversed the master in respect to this claim, and found:

(a) That the bonds were converted by the bankrupts on February 1, 1922, when, they put them up as additional collateral with Marks & Graham, because at that time the claimant had not begun to trade with Kardos & Burke, and the latter had no right to use her bonds as collateral prior thereto;

(b) That, in view of this conversion, the rights of Miss Wilson to the excess collateral turned back to the trustee in bankruptcy must be "determined from the standpoint of a wrongful and illegal use by the bankrupt of her property, as against an authorized use of the property of the other claimants";

(c) That in these circumstances she had a preferential claim to the redelivery of her bonds.

The District Judge added:

"The fact that the claimant herein actually traded with the bankrupts after the conversion, and at the time of the bankruptcy was indebted to them, does not change her status as a preferred claimant."

There can be no reasonable doubt that, when Kardos & Burke delivered the bonds to Marks & Graham, with whom they had a trading account, they did this to furnish additional collateral against which they might have a credit, and that such an act was an exercise of dominion over the bonds which brought about a conversion. It by no means follows, however, that the conversion in all