it was. Plaintiff's reliance on the bond at
the time the material was furnished does
not enlarge its obligations or the purposes
for which it was executed. Nor did an in-
cidental interest in the full performance of
the building contract change the situation,
for those who had the right to look to the
bond for indemnity are to be found in its
terms and intendment, which we think clear-
ly exclude plaintiff as a beneficiary.
The judgment is reversed.

that fact, might "have had in contemplation bond to include in its protection collateral the protection of mechanics and materialmen interests. It is not conceivable to us that who could not obtain a valid lien upon this structure," holding that it was the "evident intention" of the bond to protect them in furnishing labor and material. Lyman v. City of Lincoln et al., 38 Neb. 794, 57 N. W. 531, also involved a public building. In neither of those cases were the claims of the laborer or materialman protected by a lien law or the title or interest of the owner jeopardized by the contractor's failure to pay them; and in each case the stipulation in the bond under which the surety was held could have been inserted for no other purpose than to protect those who furnished labor and material. In this case the lien right existed, it was paramount to the interest of the owner, and, while it did not take precedence over the rights of the bondholders, its enforcement might have depreciated or impaired their security. Hence we have an entirely different case as to the intent of the bond.

The Brown-Graves Company was not a party to this bond or to the consideration inducing its execution. The covenant was to erect the building "free from all liens, except the mortgage liens on said leasehold estate," and a condition was that the building should be erected "in the manner provided in said mortgage deed of trust and in said plans and specifications, ⚫ free and clear of any and all liens and incumbrances arising from the claims of architects, mechanics, materialmen, laborers and others for labor done and material furnished in and about the construction of said building," etc. These conditions were imposed to protect the bondholders, who had a selfish interest in the completion of the building according to the plans and specifications, free of liens. Liens were asserted against the building, but they have all been discharged. The bondholders are not complaining. But, if they. were, plaintiff could not maintain this action, unless it

could be said that the bond was executed for its benefit as well as the bondholders'. As said in Simson v. Brown, 68 N. Y. 355, and approved in Constable v. National Steamship Co., 154 U. S. 51, 14 S. Ct. 1062, 38 L. Ed. 903: "It is not every promise made by one to another, from the performance of which a benefit may ensue to a third, which gives a right of action to such third person, he being neither privy to the contract, nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited." The test is whether it was the purpose of the

·

SAFETY AUTOMATIC TOY CO. v. ED-
WARDS MFG. CO. et al.

(Circuit Court of Appeals, Sixth Circuit.
July 8, 1925.)

Patents

No. 4238.

328 Greenleaf, 1,088,069, for detonating device, claim 2, held valid and infringed.

detonating device for use in automatic toy pisThe Greenleaf patent, No. 1,088,069, for a tols, claim 2, held valid and infringed; claims 1 and 4 held not infringed, and claim 5 invalid for lack of invention.

2. Patents 165-When calls of claim not given unnecessarily restrictive force stated.

When the claim calls for elements which

were old and which only provided environment for the real novelty of the device, such calls should not receive unnecessarily restrictive force.

Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.

Toy Company against the Edwards ManuSuit in equity by the Safety Automatic facturing Company and others. Decree for defendants, and complainant appeals. Re

manded, with instructions.

Howard S. Smith, of Dayton, Ohio, for ap

pellant.

Walter F. Murray, of Cincinnati, Ohio, for appellees.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DENISON, Circuit Judge. Infringement suit on patent No. 1,088,069, issued to Greenleaf February 24, 1914, for "detonating device," and practically employed in toy pistols, which use a reel of tape carrying spaced percussion caps attached thereto.

7 F.(2d) 92

Claim 2 of the patent will be found in the margin,1 and is all that need be quoted. The substantial merit claimed for the invention is that, by mounting all the operating parts upon a flat plate, and by turning over the edge of the plate as a right-angled flange, a most convenient and economical assembly is provided, the integral top flange serves for part of its length as a backing for the ammunition tape which is being fed towards the hammer, and for part of its length as an anvil upon which the hammer strikes and the explosion takes place, while the whole is specially adapted to be mounted in an inclosing case in the form of an automatic pistol, and thereby prevent any sparks flying except out of the open nozzle of the case.

[1] It is hardly denied that, as stated in this form, the device was novel.2 Its utility is amply evidenced by large sales, and by the fact that defendant has copied it, so far as it is described by the above statement. If the matter were merely one of convenient assembly, by using a carrying plate which could appropriately be mounted in an inclosing pistol-shaped case, not only would it be directly anticipated, but it would be doubtful whether, even if novel, invention was involved. The matter is not so simple. It was a happy thought to utilize this carrying and mounting plate, so that a right-angled flange thereon would serve the double purpose of an anvil and a backing for the tape co-operating in the feeding, and without providing special parts for those purposes. When considered in connection with its undoubted simplicity and economy of manufacture and efficiency, giving in form and operation a good imitation of a real pistol, the thought and its embodiment are entitled to the protection of the patent law.

Claims 1 and 4 are substantially similar to the quoted claim 2, but carry the additional limitation that the turned-over flange on the plate should carry a depending ear or guide, which restrains and directs in its true

1 Claim 2-A detonating device, adapted to be employed in conjunction with an ammunition band, and including a plate provided with a flange, a portion of such flange serving as an anvil, a hammer movable relatively to the anvil, a trigger mounted for rocking movement and for endwise movement, the rocking movement of the trigger serving to retract the hammer away from the anvil, and the endwise movement of the trigger permitting the same to co-operate with the flange to impart feeding movement to the band relatively to the anvil, when the trigger is rocked in one direction.

path the edge of the tape opposite to the main plate as the tape is carried forward. Passing the question whether this additional element patentably distinguishes claims 1 and 4 from other claims, it seems clear that the defendant does not infringe, because it does not use this depending ear or guide. What defendant does is to fit its inclosing case up tight against the free edge of the flange, and thus make the case perform the guiding function of the patentee's depending ear; but the patentee had both the case and the ear, and, without regard to the effect of the Patent Office proceedings, the best that he can say is that he voluntarily inserted the limitation calling for the ear as a separate element, and with reference to a specification which described both the ear and the surrounding case. This, in our judgment, does not leave him at liberty to say that the general and necessary and always surrounding case is the equivalent of the omitted and specially designed depending guide. Indeed, he escapes anticipation by Bailey by showing that Bailey had his case integral with his plate, and did not have the two separate elements.

Claim 5 depends upon the placing of the plate and operating parts within the inclosing case, having the muzzle opening in a specified relation to the anvil, and having a grasping handle given a particular location upon the case. We do not see that this claim can be sustained, against the objection that no invention was involved in the relatively slight rearrangement made of familiar elements. We content ourselves with stating this conclusion, as the facts are such that a detailed study of the claim would not be of general benefit.

We come, then, to the question whether defendant infringes claim 2. The only difference between the patented structure and the defendant's form lies in the manner in which the motion of the trigger is made to feed the tape and in its return motion. In the patented form the plate-carried pivot for the trigger passes through a longitudinal slot therein. The trigger can therefore be rocked, and also will slide endwise-vertically. As the hammer-cocking motion is begun, the hammer resistance forces the trigger to slide up while it is rocking on its pivot, and thus the upper end bites against the ammunition tape, backed against the horizontal flange, and slides forward, carrying the tape with it. When the hammer is released, the mounting

2 In Bailey there is no plate separate from is such that the trigger drops down, the pivot the walls of the inclosing case.

coming further up in the slot, and the upper

trigger end will therefore pass backward while down and free from the ammunition tape, and will be ready for another bite and forward push upon the next cocking motion. In defendant's form there is no slotted mounting; so far as concerns the main trigger and pivot, there is a rocking motion only. However, the upper end of the trigger is in connection with a horizontally inclined plate which is given the proper spring tension to bear against and feed the tape. This plate has a hole through which the upper end of the trigger freely passes, and as the device is operated this plate rises and falls upon the trigger stem. In a certain fair sense the endwise sliding function of the trigger is transferred from the pin and slot at the lower end of the trigger, as the patentee shows, to a post and slot at the upper end of the trigger. In other words, we observe that the trigger in the patentee's form is in function a two-part structure, the lower part of which elevates the hammer, and the upper part of which feeds the tape, and that the defendant uses a structure two-part in form as well as in function, which parts serve the same purposes as in patentee's form. We see, also, that it is only the upper or feeding portion which needs to rise and fall, and that defendant gives this motion to this part of its compound trigger, leaving the lower part vertically motionless.

ment"; and we conclude that there is infringement of the second claim. This conclusion finds support, under circumstances of more or less analogy, from our decisions in (e. g.) Schiebel Co. v. Clark, 217 F. 760, 770, 771, 133 C. C. A. 490, Jones v. General Co., 254 F. 97, 100, 165 C. C. A. 507, and Edwards Co. v. National Co. (C. C. A.) 272 F. 23, 26.

Since, upon this appeal, the appellant prevails as to matters which may, with regard to other structures, be hereafter material, it will recover costs of this court; but, since the relief by injunction and accounting will be the same as if all claims were sustained, there is no occasion to disturb the award of costs in the court below. The record will be remanded, with instructions to enter a new decree for the plaintiff in accordance with this opinion, finding infringement as to claim 2, invalidity as to 5, and noninfringement as to 1 and 4.

1. Chattel mortgages 8-Whether instrument is mortgage or pledge is dependent on intent of parties.

In determining whether an instrument is a mortgage or pledge, intent of the parties is to

be considered.

2. Chattel mortgages 8-Indenture providing for possession by trustee held to create pledge, rather than mortgage.

[2] Whether this escapes infringement depends upon the scope to be given the claim. It calls for "a trigger mounted for rocking movement and for endwise movement." We consider this an appropriate situation in which to give some force to the criterion suggested in D'Arcy Co. v. Marshall Co. (C. C. A. 6) 259 F. 236-240, 170 C. C. A. 304; and applied by us to give a liberal construction, in (e. g.) Bundy Co. v. Detroit Co., 94 F. 524, 538, 36 C. C. A. 375. It appears that both forms of double function trigger, that used by the patentee and substantially that 3. Pledges 11-Failure of trustee under in

used by defendant, were well-known alternatives at the time of the patent. Greenleaf made no invention in the double function trigger. His sole meritorious invention was characterized by the flanged plate, and the hammer and trigger and tape devices were no more appropriate to his flanged plate than they were to other and older forms of toy pistols. They provided the environment in which his rather novel thought found application. Hence we may not, and should not, give an unnecessarily restrictive force to the call of the claim for "a trigger mounted for rocking movement and for endwise move

An indenture of trust, by which debtor transferred to its manager, to hold as trustee for a creditor, certain marine engines; held to create a valid pledge, rather than a mortgage, in view of intention of the parties, especially as indicated by their conduct.

denture creating pledge to tag property covered until week after execution of indenture immaterial.

Where indenture, operating as pledge of marine engines to secure a loan, appointed sion for creditor, that trustee did not place manager of debtor as trustee to hold possestags on engines, indicating his claim thereto, until a week after date of instrument, held of possession, held by him under terms of trust. no consequence; property being already in his

7 F.(2d) 94

held not to effect valid pledge of engines, which were not assembled nor tagged and set apart from other property of the debtor.

Nelson B. Gladwin under date of July 25, pose of the same, as he has to other similar 1923." personal property of National Motors Cor

The old tags were also allowed to remain poration in his possession as receiver, with on them.