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He had himself produced this unstable condition of the spring in the ordinary course of his work. Even in this unstable condition, the spring would have remained stationary, and the accident would not have happened, if plaintiff had not lost his balance and tried to save himself by grabbing hold of the spring. Such a contingency could not reasonably have been anticipated by the defendant company.

[4,5] There is another reason why plaintiff was not entitled to recover a verdict upon the record. He had assumed the risks of the situation. It is elementary that an employee assumes the risks ordinarily incident to his employment, so far as they are not attributable to the employer's negligence. He also assumes risks not ordinarily incident to his employment, provided he knows of them and appreciates the danger, or provided they are so plainly observable that he must be presumed to know them and to appreciate the danger. C., O. & G. R. Co. v. McDade, 191 U. S. 64, 67, 24 S. Ct. 24, 48 L. Ed. 96; Gila Valley, etc., Ry. Co. v. Hall, 232 U. S. 94, 34 S. Ct. 229, 58 L. Ed. 521; Ches. & Ohio Ry. Co. v. Proffitt, 241 U. S. 462, 36 S. Ct. 620, 60 L. Ed. 1102; South

ern Pac. Co. v. Berkshire, 254 U. S. 415, 41 S. Ct. 162, 65 L. Ed 335; Bohn Mfg. Co. v. Erickson, 55 F. 943, 5 C. C. A. 341; Crawford v. American Steel & Wire Co., 123 F. 275, 59 C. C. A. 293; St. Louis Cordage Co. v. Miller, 126 F. 495, 501, 508, 61 C. C. A. 477, 63 L. R. A. 551; Glenmont Lumber Co. v. Roy, 126 F. 524, 61 C. C. A. 506; Lake v. Shenango Furnace Co., 160 F. 887, 891, 88 C. C. A. 69; C., B. & Q. R. Co. v. Shalstrom, 195 F. 725, 115 C. C. A. 515, 45 L. R. A. (N. S.) 387; H. D. Williams Cooperage Co. v. Sams, 198 F. 852, 117 C. C. A. 494.

[6] And where the risks are variable, owing to changing conditions either in the character of the work or in the way it is performed, the employee assumes the risk of such changing conditions; and especially is this true where the changed conditions have been brought about by himself or his fellow servants. G., C. & S. F. Ry. Co. v. Jackson, 65 F. 48, 12 C. C. A. 507; Finaly son v. Utica Mining & Milling Co., 67 F. 507, 14 C. C. A. 492; Moon-Anchor Consol. Gold Mines, Ltd., v. Hopkins, 111 F. 298, 49 C. C. A. 347; American Bridge Co.

v. Seeds, 144 F. 605, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041. In the instant case the changed condition of the spring as to stability was produced by plaintiff himself in the performance of his work. The evidence above recited shows, not only that he knew of the changed condition, but appreciated the risk.

Our conclusion is that the motion for a directed verdict should have been granted, both because the evidence failed to show negligence on the part of defendant, and also because the evidence conclusively showed assumption of risk on the part of plaintiff. It is true that plaintiff testified that he thought the spring was fastened to the saddle, but this conclusion can avail nothing, in view of his further testimony, above recited, as to what he knew and what he did, and in view of the other uncontradicted testimony above recited to the same effect.

[7] It is the duty of the trial court to direct a verdict at the close of the evidence in two classes of cases: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting, but is of so conclusive a character that the

court, in the exercise of a sound judicial distion to it. Small Co. v. Lamborn, 267 U. S. cretion, would set aside a verdict in opposi248, 45 S. Ct. 30, 69 L. Ed. 587; Ewert v. Beck, 235 F. 513, 149 C. C. A. 59; Fricke v. International Harvester Co., 247 F. 869, 871, 160 C. C. A. 91; New Amsterdam Casualty Co. v. Farmers' Co-op. Union of Lyons, Kan. (C. C. A.) 2 F. (2d) 214; Walton Trust Co. v. Taylor (C. C. A.) 2 F.(2d) 342; Kintyre Farmers' Co-op. Elevator Co. v. Midland National Bank (C. C. A.) 2 F. (2d) 348. We think the instant case is within the rules stated.

The assignments of error raise the question of the effect of the adoption of the federal Employers' Liability Act (Comp. St. §§ 8657-8665) into the Constitution of the state of New Mexico. As the decision of this question is not necessary to a disposal of the present case, and as the question has not been passed upon by the Supreme Court of the state of New Mexico, so far as we are advised, we omit decision and discussion of the question.

Judgment reversed, and cause remanded, with instructions to grant a new trial.

8 F.(2d) 33

HAYES PUMP & PLANTER CO. v. FRIEND This produces a conical spray, or, as it is

MFG. CO.

(Circuit Court of Appeals, Second Circuit. June 1, 1925.)

No. 349.

termed, a finely diffused spray. By reason of such helical passage in the combination with the chamber, the whirling action of the liquid is produced, and the spray mentioned as the principal object of the patent is pro

1. Patents 328-962,946, for nozzle, held duced. void for anticipation.

The Cushman patent, No. 962,946, for a nozzle, held invalid for anticipation in the prior

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In Equity. Suit by the Hayes Pump & Planter Company against the Friend Manufacturing Company for infringement of patent No. 962,946. Decree for plaintiff. Defendant appeals. Reversed.

Drury W. Cooper, of New York City, and J. William Ellis, of Buffalo, N. Y., for appellant.

The patent shows the helical passage, and what is termed an eddy chamber formed between the plug and the cap. Claim 1, provides, in a spraying nozzle, a body portion having a tortuous channel and an axial passage, means removably inserted in the axial passage, and a cap under the body having a central discharge opening. Claim 3 differs from claim 1, in that it includes as an element a boss projecting from the body and threaded to receive a conduit, and claim 4 differs from claim 1, in that it calls for a disk arranged in front of the body portion and provided for a central opening. It includes a packing washer between the disk and the body portion. It thus appears that the difference between claims 3 and 4 and claim 1 relate to the threaded boss and the construc

tion of the eddy chamber comprising the disk with its discharge orifice and packing washer.

This patent is found in a crowded art. Samuel W. Banning, of Chicago, Ill. (Charles W. Parker, Felix E. Prochnow, and Reliance for its validity is placed largely in Barton A. Bean, Jr., all of Buffalo, N. Y., the fact that it has an eddy chamber, and it is claimed to be used principally for an orof counsel), for appellee. chard sprayer. The District Judge said: Before ROGERS, MANTON, and HAND, "On reading the specifications in connection Circuit Judges.

MANTON, Círcuit Judge. [1] This suit is for infringement of a patent for a nozzle. The first, third, and fourth claims are involved. It is claimed that appellant's spray guns embody the construction and novelty of appellee's patent. The inventor says that the invention relates to spray nozzles, and has for its principal object a nozzle of simple economic construction through which liquid may be forced and distributed in a finely diffused spray. Another object is to provide a nozzle having a minimum number of parts, so constructed that it might be readily and adjustably changed from a spray to a direct jet nozzle. A finely diffused spray is produced by causing the liquid, instead of passing straight through the nozzle, to enter at an angle from a side helical passage. Liquid entering in this way whirls within the body of the nozzle, so that when it emerges from the tip of the nozzle it is not only moving forward, but is also swirling, so that the particles tend to move laterally, as well as forward, and fly away from each other.

8 F. (2d)-3

with the claims in issue, I think the latter are limited to an orchard spraying nozzle, for reference in the specifications to a finely diffused spray and to clogging the nozzle from corrosion seems to imply the use in the nozzle of a corrosive mixture only, characteristics not present in ordinary hose or water nozzles." And he distinguishes the invention from the patents of the prior art by holding that there was no eddy chamber and no central outlet in the cap or top piece, and said that without the latter embodiment the result obtained in producing the diffused spray could not be obtained.

It is argued in the brief of counsel that the thing that makes patentable the appellee's device is the structural requirement in respect to the provision of an eddy chamber and the means in the claims which are directed to the features of construction which, in combination, afforded an eddy chamber. We think a nozzle which is used for lawn spraying, as found in the prior art, may well be considered in the art of orchard spraying, even though in lawn spraying water only is used, and in orchard spray

ing insecticide solutions. Water sprayed through nozzles for lawns is substantially like liquid watery insecticide solutions used in spraying orchards. The clogging or corrosion referred to by the appellee does not depend upon the construction of the spraying device, but rather upon the preparation of the spraying solution. When the spraying device becomes dirty, it can be sufficiently disassembled to clean it. There is more or less sediment in waters that are used that would require the cleaning of nozzles, as in the case of liquid watery insecticides.

There are patents of the prior art which indicate that there was nothing novel in appellee's accomplishment, nor was there a new result obtained by the use of appellee's nozzle. The Parker patent No. 356,372 of the prior art shows a nozzle producing a very fine, wide spray or a more contracted direct passage. The nozzle is provided with lateral helical passages, in which the liquid is given a whirling motion. When the whirling motion alone is desired to give a fine spray, the central passage is closed by a cylindrical member, which then leaves only the lateral or helical passages for the water to pass through. Whenever it is desired to have the character of the spray more powerful, the body of the nozzle is turned, and the cylindrical member is backed out from the central passage. This leaves a clean central passage in addition to the helical side passages, in the same manner as when the screw plug is removed from the patent in suit. This produces a change from one type of spray to another, and can be made at any moment when the nozzle is in use, by rotating the body of the nozzle. Intermediate positions may be created, so as to produce an intermediate type of spray. When the plug or cylindrical member is inserted, a whirling motion is given to the spray, and it is widely disbursed, and when the plug is partly removed from the Parker nozzle, some of the liquid passes directly through the central passage, so that the column of the spray is more contracted and driven to a greater distance. If the plug is taken out entirely, the spray will be ejected further than when it is partly out.

The difference between the patents is that the patent in suit in construction differs from the Parker, in that, when the screw of the patent in suit construction is only partly out, there would be no change in the form of the spray. The screw must be in place to close the opening, or it must be entirely removed from it. If it is partly removed,

it will still close the opening, so that no change could be made in the operation of the nozzle. Demonstrations made in the use of this nozzle show that the spray is practically the same as that thrown by the spray guns of the appellant. An eddy chamber is described as in recess or space or chamber in which a solution rotates after leaving the feeder apertures or tortuous channels. Parker substantially has this. In the German patent, No. 71,453, the body of the nozzle is provided with side passages, which enter at an angle, so as to cause a whirling motion of the liquid in the chamber of the nozzle, and it is also provided with a central opening, through which the liquid can enter the whirling chamber direct. The liquid may enter the side passages into the central whirling chamber of the nozzle tangentially, so that it is caused to whirl within the chamber be fore it issues from the tip of the nozzle.

Much is made by the appellee in argument of the fact that water is caused to enter the whirling chamber or eddy chamber at right angles. The central or axial passage permits a direct stream of liquid to enter and mingle with the whirling liquid, so that a result is brought about similar to that produced by the patent in suit in the appellee's nozzle when the screw plug has been removed. This German patent does not show a plug for closing the central passage, but the specifications state the central jet may be eliminated by closing the opening. The idea of an eddy chamber is present in this German patent. The eddy chamber of Hull's 1907 patent and the eddy chamber of the patent in suit are not formed precisely the same in every detail as is the eddy chamber of the Parker and German patents. However, the tapered nozzle of the German and Parker patents are identical, having at each of the outlets a restricted opening, and being provided with the helical passages and the central axial passage, which necessarily produces the whirling, atomizing eddy reaction of the liquid forced through them.

The appellee's device is a nozzle, and the appellant's device is a spray gun. The appellant's spray gun has a removable plug, which is constructed as shown and described in appellee's patent; but appellee's plug is physically taken out of the conduit, and out of the axial passage, and later inserted therein with no intermediate positions, allowing a partial control of the liquid, while in the appellant's spray gun the plug is always in the conduit, either wholly or partially inserted in the axial passage or entirely out of the passage, but still within the conduit, and, as

SF.(2d) 35

shown by the exhibit, the appellant's spray 2. Corporations 479-Mortgage trustee's guns have an elongated conduit, constructed right to reimbursement for taxes paid as afso as to form a handle or rod by means of fected by receivership, defined. which the gun is manipulated; also the central plug is elongated, so that it can be easily retracted. The set screws of the appellee's device have been modified to assume the form of a spiral track or tread, which cooperated with the plug to advance or retract the plug, and the helical passage of the patent in suit assumes the form of a plurality of such passages. The axial passage is found in both the German patents as well as in the Parker, and a screw has been placed into it by the appellee.

[2] We do not think it patentable to close with a plug the axial opening which is similar to that shown in the German patent. The patent in suit shows a combination of axial opening and the atomizing by whirling injection. Both of these features are found in the prior art. To produce a patentable invention requires the discovery of some new and useful art, machine, manufacture, or composition of matter, or some new and useful improvement thereof, and it is not enough that a thing shall be new in the sense that, in the shape or form in which it it produced, it shall not have been known before. Hill v. Wooster, 132 U. S. 693, 10 S. Ct. 228, 33 L. Ed. 502; Penn. R. R. Co. v. Truck Co., 110 U. S. 194, 4 S. Ct. 220, 28 L. Ed. 222.

We think the patent in suit was anticipated by the prior art. Therefore the decree will be reversed.

Decree reversed.

HAMMOND et al. v. CARTHAGE SULPHITE
PULP & PAPER CO.

UNITED STATES MORTGAGE & TRUST
CO. v. CARTHAGE SULPHITE PULP
& PAPER CO. et al.

(Circuit Court of Appeals, Second Circuit.
May 21, 1925.)
No. 363.

1. Corporations 477(1) Mortgage cover-
ing real and personal property held valid as
to real estate.

A mortgage given by a New York manufacturing corporation to secure an issue of bonds covering both its real and personal property, and recorded as a real estate mortgage, held not invalid as to the real estate described therein because of provisions excluding the raw material acquired or taken from its lands and used in its manufacturing, and permitting the corporation, prior to any default, to sell its products and retain the proceeds.

Where a decree foreclosing a mortgage on the property of a corporation, for which a receiver had been appointed in a creditor's suit, directed payment of taxes from the proceeds of the sale, the mortgage trustee was merely a contract creditor of the corporation for the amount paid for taxes levied before the receivership, which were unpaid through default of the mortgagor, but those levied after ap pointment of the receiver were expenses of the receivership, and the trustee was entitled to reimbursement from any funds applicable to

such expenses.

3. Corporations

478-Claim in suit by mort

gagor passes as "chose in action."

A claim in suit by a corporation when it executed a mortgage held included in the property mortgaged under a clause covering "choses in action."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Chose in Action.]

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[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Real Property.]

5. Fixtures 22-Unrecorded conditional sale contract held void as against subsequent mortgagee.

An unrecorded contract for conditional sale of boilers, to be attached to a building held void as against a subsequent mortgagee of the realty in good faith, under Personal Property Law of New York, § 62, as it stood in 1921 (Consol. Laws N. Y. c. 41), when the mortgage was ex

ecuted.

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

Creditor's bill by Reginald F. Hammond and others and foreclosure suit by the United States Mortgage & Trust Company, trustee, against the Carthage Sulphite Pulp & Paper Company. From the final decree, Hammond and others, as unsecured creditors, and the Union Iron Works and the United States Mortgage & Trust Company, appeal. Modified.

The suit first above entitled is a general creditors' bill, under which a receiver was appointed for the affairs of the Carthage Company.

The court having thus taken jurisdiction, the suit next above named was brought by the United States Mortgage & Trust Company to foreclose a mortgage given by Carthage Company about three years before the filing of the creditors' bill.

Carthage Company is a corporation of the state of New York; the mortgage in question was a corporate mortgage, intended in the usual way to support an issue of bonds, United States Mortgage & Trust Company taking the mortgage as trustee.

The mortgage specifically covered numerous parcels of realty situate in Jefferson county, N. Y., and it is admitted that it was well filed as a real estate mortgage in that county. The mortgage also specifically hypothecated by name certain shares of stock in certain corporations, and then continued in the habendum clause to transfer to the trustee

"All of the incomes, interest, dividends, revenues, contributions, receipts, and returns, contracts, leases, claims, accounts, demands, choses in action, books of account and contract rights of all kinds belonging to the corporation, now owned or hereafter acquired.

"Also all stores, repair parts, stock in trade, materials and supplies, and all other property, rights, privileges, franchises, licenses, easements and permits of any and every kind and description, real, personal and mixed, of the corporation, wheresoever the same may be situated and not hereinbefore specified or referred to, whether now owned or hereafter acquired, with the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.

"It being intended that all property, real, personal and mixed, of any and every kind and character, which the corporation now owns, and all property which it may hereafter acquire, and howsoever acquired, shall be subject to the lien of this indenture, with like tenor and effect as though now owned by the corporation and as though covered and conveyed hereby by specific and apt descriptions.

"Provided, nevertheless, that (except as hereinafter provided in article III hereof), no pulp, wood pulp, or other raw material or material in process of manufacture, repair parts, repair material, supplies, commodities constituting the whole or any part of any stock kept for sale, accounts, notes or bills receivable, cash, obligations or securi

ties other than such as are actually pledged hereunder and delivered to the trustee, or by the terms hereof are required to be so pledged and delivered, shall, prior to the occurrence of any of the defaults hereinafter specified in section 1 of article VI and the continuance thereof for the time therein specified, be deemed included in this mortgage."

The article III referred to declares that: "Until some default shall have been made in the due and punctual payment of the interest or of the principal of the bonds hereby secured, the (Carthage Company) its successors and assigns shall be suffered and permitted to retain actual possession of the mortgaged property (except any shares of stock, trust receipts or voting trust certificates representing shares of stock and bonds pledged hereunder) to cut, quarry, mine and remove timber, stone, coal or other raw materials from the same in the course of its business, and to manage, operate and use the same and every part thereof, and to collect, receive and take the tolls, earnings, rents, issues, profits, dividends (except stock dividends) interest and other income from all of the mortgages and pledged property; to use, dispose of and consume the raw materials in storage, in process of manufacture belonging or owing to the corporation, supplies and stock in trade."

The defaults referred to in section 1 of article VI are those usual in corporate mortgages, and the particular default there mentioned and constituting ground of foreclosure was default "in the payment of any interest on any bond or bonds secured by this indenture" and the continuance of such default "for a period of sixty days."

The bill of foreclosure was dated March 6, 1924. The decree of foreclosure and sale passed on March 27, 1925. By that decree the extent of the lien of the mortgage was declared as follows:

(1) It was declared valid as to the realty, and the unsecured creditors have appealed, alleging said mortgage to be "in its entirety fraudulent, illegal, and void."

(2) At date of decree there were due and unpaid certain state, county, town, school, and village taxes for the years 1923 and 1924. Those for the year 1923 had been assessed prior to the time when the court below, through its receiver, took charge of Carthage Company's property. Taxes for 1924 were levied and assessed after the appointment of a receiver. The court below directed that all these taxes should be paid

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