7 F.(2d) 94 Sumner, 5 Pick. (Mass.) 59; Sumner v. Hamlet, 12 Pick. (Mass.) 76.. The whole scheme of placing the property in the hands of Gladwin, as trustee, to hold in trust for the bank as security for the payment of the note held by it, and of providing that, when the note, with interest, was paid, the property should revert to the company, plainly partakes more of the nature of a pledge than a mortgage. This was the construction placed upon it by the parties, for, when the property was retagged in January, 1924, the indenture was referred to as a "pledge," and it was so designated in the entry upon the books of the company, made when entering the receipt of the first monthly rental of $5. The delivery of possession to Gladwin, although an employee of the company, created a valid pledge. In Sumner v. Hamlet, supra, the goods claimed to be pledged were delivered to an agent of the pledgor, and the court said: "Whatever was the nature of his general relation to the proprietors of the manufactory, in this particular transaction he was constituted the special agent of the defendant, for the purpose of keeping possession for him, although in other respects the servant of Stanley & Co., and, pursuant to the power thus given him, he was both authorized and bound to retain the goods against the original proprietors, for the use of the defendant. To constitute such special possession, it was not necessary that the goods should be removed from the premises of the former owners; it was sufficient that they were so far in the custody of the special bailee that he could at all times have legal control of them, and give notice of the lien to any purchaser and attaching creditor, and remove the goods, if such removal should be necessary for the safety of the principal." [3] That Gladwin should act as trustee was agreed upon by the parties and he accepted the trust, as appears from the notice which he gave to both, and also from his act in tagging the property so that it might be identified. That he did not place tags upon it until about a week after the date of the instrument is of no consequence, as the property was already in his possession and held by him under the terms of the trust. By tagging the property he not only made its identity certain, but also gave notice that it was not in possession of the company, but held by him in trust. In doing this he was not attempting to change the nature of the transaction from that of a mortgage to a pledge, but was evidently acting in accordance with the understanding of the parties. 7 F. (2d)-7 [4, 5] As to the two engines, which were not assembled, and which were not tagged and set apart from other property of the company, there was no valid pledge. While the extent and validity of a pledge is a matter of local law, we find nothing in the decisions of the Supreme Judicial Court of Massachusetts which would not uphold delivery to Gladwin, as trustee for the bank, as sufficient to constitute a valid pledge. He thereafter had exclusive control over the property and the room in which it was stored, and under the facts agreed the company exercised no control over it, and, although employees, upon occasions, entered the room for other material not covered by the pledge, it was presumably done with the consent of Gladwin, the manager, for the special purpose of getting this material. [6] It is claimed, if a valid pledge was created, the lien of the pledgee was lost when Gladwin surrendered the key to the storeroom to the receiver in which the pledged property was stored. The record is silent as to what was said by Gladwin when he delivered the key. It was, however, admitted at the oral argument that the receiver knew the bank claimed that the engines were pledged to it when the key was delivered to him. There is nothing in the record to show that Gladwin's act was authorized by the pledgee, or that it ever ratified any release of its possession. [7] As an officer of the court, the possession of the receiver was that of the court which appointed him, and the property in his hands was in the custody of the law, to be held for the benefit of those ultimately entitled to it, and the possession of the receiver was not adverse to that of the pledgee. Porter v. Sabin, 149 U. S. 473, 13 S. Ct. 1008, 37 L. Ed. 815; Union Bank of Chicago v. Kansas City Bank, 136 U. S. 223, 236, 10 S. Ct. 1013, 34 L. Ed. 341. As there were other goods beside the pledged property in the storeroom, the receiver was entitled to the key to it, and to hold all of the property in it until the rights of the parties could be determined. The decree of the District Court is reversed, and the case is returned to that court, with directions to enter a decree that N. B. Gladwin has the right to the possession of all the property described in the exhibit attached to the indenture of trust, except the parts of the two engines which were not tagged, to hold in trust for the Manufacturers' & Traders' National Bank, under the terms of said indenture of trust; the appellant to recover costs in this court. 2. Patents 26(1)-When new combination of old elements is patentable stated. The question of the patentability of a new combination of old elements presents a more or less unique problem in each case. A novel and useful combination of old elements selected from several places is usually patentable; but, if most of the elements were already in combination, the addition of one or two, already well known, singly or in groups, as common expedients in similar situations, or the substitution for one or two of those elements of devices familiar to mechanics for analogous use, must be a very meritorious case of benefit to the art to justify a patent. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. Suit in equity by Christian J. Hug against the Lakewood Engineering Company. Decree for defendant, and complainant appeals. Affirmed. For opinion below, see 291 F. 892. Jas. L. Hopkins, of St. Louis, Mo. (Hull, Brock & West, of Cleveland, Ohio, on the brief), for appellant. A. J. Hudson, of Cleveland, Ohio (Thurston, Kwis & Hudson, of Cleveland, Ohio, on the brief), for appellee. Before DENISON and DONAHUE, Circuit Judges, and ROSS, District Judge. PER CURIAM. [1] Infringement suit based on patent No. 1,421,237, issued to appellant June 27, 1922, on a subgrading machine. Claim 1 is quoted in the margin.1 Judge Westenhaver thoroughly considered the patent in connection with the prior art, and held that it was invalid for lack of invention. With this conclusion we agree. So 1 "1. In a subgrading machine, the combination of a frame, grading blades carried by said frame, rollers supporting the frame when in operative position, a crank axle journaled transversely on said frame, wheels mounted on said crank axle, and a tongue secured to said crank axle and arranged to transfer the weight of the frame to said wheels for the purpose of transporting the machine when not in operative posi tion." much of his opinion as relates to that subject we adopt, as follows: "Defendant is and has been since 1918, making a similar subgrading machine under United States letters patent No. 1,268,925, issued to E. G. Carr, June 11, 1918, on application filed March 7, 1917. In the latter part of 1919 or the early part of 1920, long prior to Hug's application date, defendant had improved its subgrader, so that it embodied all the features found in Hug's patent, except the wheels, crank axle, and tongue, presently to be described. In 1923 defendant added wheels to the Carr device, and the charge of infringement is based specifically upon this addition. "These structures are so simple in their elements and principle of operation, and the issues lie within such a narrow compass, that no detailed description of the respective structures is required. They are so similar that it would seem Hug must have used Carr as a basis for his invention, despite his denial. If this is not true, then he, like Carr, and graders of the pre-existing_art. probably used the familiar road scrapers The only change or addition made by Hug to de fendant's commercial Carr device consists in adding a pair of wheels, a crank axle to raise and lower the grader, a tongue of the ordinary wagon type, attached to the crank axle with ordinary wagon hounds, and a retaining latch to hold the tongue in a fixed position when the wheels are lowered and the scraper is raised. The crank axle is added for its usual and normal purpose of enabling a structure to be raised and lowered by means of wheels attached to the axle. The wagon tongue and hounds are added for the usual and normal purpose for which they have been used in wagons since a time whereof the memory of man runneth not to the contrary. Normally these additions were made for the purpose only of making the grader portable. In the operation of the subgrader, they perform the same function and accomplish the same result as the pedestal and levers of the Carr device, or of their modified equivalents in defendant's commercial structure. "Subgraders in road making are operated by some form of traction, usually a traction road roller. It is desirable to turn the grader around and operate it in both directions. It is also desirable to turn it halfway around, so as to permit traffic to pass while in operation. In the Carr device, the pedestal and levers permitted both of these operations. It is claimed for the wheels of the 7 F.(2d) 98 Hug device that the subgrader may be wheeled transversely to one side of the road, to clear the other side, to permit traffic to pass, and this, on the hearing, is the only material advantage claimed for it. That this accomplishes the old result in any substantially better way may well be doubted. The presence of the traction road roller in the center of the road, and the limit upon transverse movement, due to the circumference of the wheels, the header forms, or embankments, make it very questionable whether any greater clearance for traffic can thus be obtained. If this is not a new or different function and result, then, aside from the portability obtained, I perceive no new or different result or function accomplished by Hug's addition to Carr. "Defendant contends that putting wheels under a subgrader so as to make it portable, does not involve the inventive faculty. This is undoubtedly true. Defendant also contends that the wheels, crank axle, and tongue are mere additions to a subgrader and perform no function in connection with the other elements of the subgrader, and hence a mere aggregation, and not a true combination in the patentable sense, is produced. Obviously these additions perform no function in connection with the other elements of the subgrader while it is performing its normal function of a road grader. It is no more a part of the combination making up the grader than is the traction road roller, which supplies the power to operate it. It is undoubtedly true that a mere aggregation is produced, unless it can be said that the necessity for getting the subgrader frequently and quickly out of the way of traffic is an essential function of a practical road grader. If Hug's additions are not merely a double use of old elements, it certainly follows that the question of patentability is brought down to an exceedingly narrow basis, and that Hug's patent claims can be sustained, if at all, only for his specific construction. "My opinion is that, in view of the prior art, no invention can be found in the Hug device. As already stated, all of its elements are found in, if not copied from, the Carr patent and defendant's commercial structure, with the exception of the crank axle and wheels, and the wagon tongue and retaining latch. These elements are all old in the prior art, and were used for the same purpose. In Baker's treatise on Roads and Pavements, published in 1916, at page 101, is illustrated a wheel scraper with a crank arle for raising and lowering the scraper The yoke of the handle or lever is attached to the crank axle in the same manner and position as is Hug's wagon tongue. "In United States letters patent No. 659,867, dated October 16, 1900, issued to F. A. Hetherington, are found a crank axle and wheels in a paving tool, with means to raise and lower the paving tool. It is true the wheels are removed when the paving tool is in use, and applied only when it is not in use, and portability is desired. In United States letters patent No. 80,155, dated July 21, 1868, to E. B. Driskell, is found an improved road scraper, with wheels, a crank axle and handles to raise and lower the scraper. The wheels are not removable, and the handles perform the lever function of raising and lowering the scraper. In United States letters patent No. 358,179, dated February 22, 1887, issued to T. Willsea, for a ditching machine, are also found wheels, a crank axle, handle, and lever means for raising and lowering the ditcher. "In United States letters patent No. 941,929, dated November 30, 1909, issued to W. Kaiser, for a road and land leveling machine, are found wheels, a crank axle, and tongue or lever for raising and lowering the scraper. It has a retaining latch, the substantial equivalent of Hug's retaining latch, used to perform precisely the same function. The lever means for raising and lowering the scraper are more similar to defendant's present construction than to Hug. In all of these several disclosures, the function and purpose of the wheels, crank axle, tongue, and levers are the same as in both Hug's and defendant's devices. "In view of the teaching and disclosures of this prior art, no invention was required to transfer therefrom-the wheels, crank axle, tongue, lever attachment, and retaining latch to Hug's subgrader. They perform no new or different function in Hug's combination. They were adopted and used for precisely the same purpose, and accomplished substantially the same result." [2] The criticism made by appellant is that the trial court put too much stress upon the fact that each element was old, and not enough upon the principle that a new combination of old elements may be patentable. Each case involving these questions presents a more or less unique problem. In one class the patentee makes a selection of old elements from several places and puts them into a novel and useful combination; this will not usually be found to be unpatentable. In the other class he finds most of the elements already in combination, and 3. Trade unions 4, 9-Local union required to inform applicant with transfer card, who had been refused once, that subsequent offer to accept him was unconditional; instruction in suit for refusal of admission to local union held erroneous. Where member of international labor union had been refused admission to local union, and had filed claim for damages with general executive committee, local union, in subsequent ly offering at meeting to consider claim to accept member on his procuring another transfer card, had duty of advising member that offer was unconditional, and would not constitute waiver of right to obtain redress for previous wrong, and instruction to jury to that effect, relative to duty of mitigating losses, was not city to live held not to have duty to abandon his home and go to another city to find employment to mitigate his losses. In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. Action by Stephen J. Nalty against Local Union No. 65 of the Amalgamated Sheet Metal Workers' International Alliance. Judgment for plaintiff, and defendant brings error. Affirmed. The The Amalgamated Sheet Metal Workers' International Alliance is a union of men engaged in the sheet metal workers craft throughout the United States and Canada. It is made up of local unions, among which are Locals No. 12 of Pittsburgh, Pa., and No. 65 of Cleveland, Ohio. Nalty, the plaintiff below, was a member of the Pittsburgh Local in March, 1921, and secured from it a transfer card on moving to Cleveland to reside. He presented his card to an officer of the Cleveland Local April 3, 1921, for the purpose of identifying himself with the organization in that city, and with the expectation of procuring work as a union man. application was referred to the executive committee, which four days later refused to admit him to membership. Subsequent applications were rejected, and in the meantime the Pittsburgh Local, at Nalty's request, filed a claim against Local No. 65 with the general executive committee for losses resulting, as Nalty claimed, from the refusal of the Cleveland Local to recognize his card. On September 21, 1921, a member of that committee came to Cleveland, met with the executive officers of the local committee, and at a hearing held sustained the several actions of the local committee. It was proposed, however, to Nalty at the meeting that, if he would procure another transfer card from the Pittsburgh Local and present it, he would be accepted. He and Coulter, who represented him at the hearing, said that the proposed acceptance was conditioned upon his waiving his claim for losses ensuing from the previous refusals. Witnesses for the defendant testified that the offer was unconditional. In October, 1921, the general executive committee considered informally Nalty's claim, denied it, and confirmed the action of Local No. 65. In July of 1922 a rehearing was held in New York, plaintiff, with others, appearing, at which the committee finally disposed of the matter by an affirmation of 7 F.(2d) 100 its former decision. While these matters were pending Nalty continued to reside in Cleveland. The opportunities for employment in sheet metal work in that city were practically limited to members of the Cleveland Local. Nalty sought employment during the time, but, not having a card in the local, was unable to procure it, except for a period of two months. After the general executive committee had reaffirmed the rulings of the Cleveland Local, he instituted this suit for damages. Luther Day and Wm. J. Dawley, both of Cleveland, Ohio (Day & Day and J. Paul Thompson, all of Cleveland, Ohio, on the brief), for plaintiff in error. W. K. Stanley, of Cleveland, Ohio (Stanley & Horwitz, of Cleveland, Ohio, on the brief), for defendant in error. judicial, and a court of equity will not lend itself to efforts at restoration. Where no right of property is involved, this is generally true. Kearns v. Howley, 188 Pa. 116, 41 A. 273, 42 L. R. A. 235, 68 Am. St. Rep. 852. We are not concerned with those cases. This is an action at law for damages in redress of a wrong, and the general rule is that one who has been wrongfully suspended or expelled from an association may abandon his claim to membership and resort to an action for damages for the wrong done. Lahiff v. Benevolent Society, 76 Conn. 648, 57 A. 692, 65 L. R. A. 92, 100 Am. St. Rep. 1012; Brennan v. United Hatters, 73 N. J. Law, 729, 65 A. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698. The right exists independently of the ex haustion of remedies in the order. Plaintiff exhausted every reasonable means at his com Before DENISON, DONAHUE, and mand to procure within the order the rights MOORMAN, Circuit Judges. MOORMAN, Circuit Judge (after stating the facts as above). [1] The Constitution of the Amalgamated Sheet Metal Workers' International Alliance provides: "The transfer card of a member of a local union attached to this International Alliance shall be recognized by the union in which he desires to deposit it, upon the payment of the difference, if any, of the initiation fee of the local union to which he belongs and the union in which he desires to deposit it, accompanied with an official receipt, except in localities where strikes or lockouts exist." This provision is mandatory save "where strikes or lockouts exist." It is suggested, however, that the exception applied, as the negotiations with the employers for an adjustment of the wage scale, pending when plaintiff's application was first presented, were the equivalent of a lockout. We do not think so. Besides, the wage scale was settled in June, and thereafter the Cleveland Local repeatedly refused to accept the transfer, and its rulings were approved by the general executive committee. [2] To the insistence that the decision of the union cannot be reviewed by the courts a complete answer, it would seem, is that the decision was not in accord with the union's constitution. In such case the member who has been wrongfully denied his rights is not bound by the action of the union. There are cases, cited by defendant, holding that in suspending or expelling a member the acts of the association are quasi to which he was entitled before resorting to this action. Defendant withheld them. He is not without remedy for the wrong. Independent Order v. Wilkes, 98 Miss. 179, 53 So. 493, 52 L. R. A. (N. S.) 817. As there is no provision in the constitution or bylaws that a member of the order must resort to its tribunals for redress, nor any that, having done so, both are bound by the decision, we need not consider whether the presence of such provisions would lead to different results. [3] Complaint is made of that part of the charge which told the jury, in effect, that it was the duty of defendant, when it offered on September 21st to accept a transfer card if plaintiff would procure a new one, to advise him that the offer was unconditional, so that he would not be put to the risk and hazard by accepting it of waiving his right to redress for previous wrongs, if any had been committed. The objection would be forceful if the negotiations of that date had related exclusively or in their major purposes to membership in the local union. But they did not. The meeting was called to consider the claim that plaintiff had filed with the general executive committee. The Farties were conferring about it. The proof shows that it was discussed in connection with the offer, though as to what was said there are different versions. From these facts it is fair to assume that the offer was incidental to the purposes of the meeting. The connection in which the offer was made and the purposes for which the imposed condition was considered by the jury |