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10 F.(20) 817 when the vessel starts upon the voyage, it [3] Claim of J. Aron & Co., Inc., for shortadopts and ratifies the bill of lading issued age and damage to turpentine: The shipby an unauthorized person. See, also, The ment consisted of 617 barrels, 310 of which Blandon (D. C.) 287 F. 722; The Poznan were covered by Inter-Allied bills of lading, (D. C.) 276 F. 418; The Sprott, 70 F. 327. 307 by Caravel bills of lading. On discharge [2] The facts in the present case are not the there was an actual shortage altogether of 5 same as those in Maella Atkieselskabet Bru- barrels and their contents. Twelve barrels usgaard v. Standard Oil Co. of New Jersey were delivered absolutely empty, and the re(C. C. A.) 283 F. 106. There, the freight maining barrels were leaking so badly that, due the ship not having been paid, the mas- after they were put into lighters furnished ter notified the shippers that the bill of lad- by the steamship Muskegon, enough turpening issued was without authority, and it re- tine in a damaged condition was collected to fused to adopt the bill of lading which was fill 75 barrels. The consignment consisted of unauthorized, and refused to sail with the 100 tons. Of this 100 tons, 70 tons were decargo until the matter was adjusted.

livered, 58 in good condition and 12 in damThe ship's liability having been determin- aged condition. The turpentine, or at least a ed, and it being admitted that duplicate large portion of it, was carried on the deck freight was collected as follows:

of the Muskegon. Neither the Caravel bills J. Aron & Co., Inc...

$ 4,103.69 of lading for 307 barrels of turpentine, nor International General Electric Com

the Inter-Allied bills of lading for 310 barpany

33,037.28 rels of turpentine, gave the steamship the Gaston, Williams & Wigmore, Inc. 27,483.99 G. Jaris & Co.....

5,970.00

right to carry the turpentine on deck. The
United Shoe Machinery Corporation 5,624.48 bills of lading were all clean.
Lucas E. Moore Stave Company.. 2,320.75 Mr. Justice McReynolds, in the opinion
Worthington Pump & Machinery

in the case of The St. Johns, N. F., 44 S. Ct. Corporation

1,428.64 Caldwell & Co., Inc...

1,141.12

30, 263 U. S. 119, 68 L. Ed. 201, affirming Selson Engineering Company of New

280 F. 553 (C. C. A. 2d Circuit) said: York, Inc.

969.89

By stowing the goods on deck the vessel Renzo Corinaldi Cohen.

643.24

broke her contract, exposed them to greater D. Scrivenich

291.26 W. P. Marseilles.

risk than had been agreed, and thereby diAllied Machinery Company of Amer.

rectly caused the loss. She accordingly beica

2,620.76

came liable as for a deviation, cannot escape --therefore these respective amounts should by reason of the relieving clauses inserted in be returned to them, and the various libel- the bill of lading for her benefit, and must ants are entitled to the expenses which they account for the value at destination.” were reasonably put to for watching, stor- So the Muskegon is liable for the 5 barage, etc., by reason of the failure of the Mus- rels which the testimony indicates was washkegon to make delivery as called for under ed overboard in the heavy weather encounterthe bills of lading.

ed by her, and also for the damaged turpenClaim of Lucas E. Moore Stave Compa- tine, for they were clean bills of lading. ny for shortage: The libel of Lucas E. [4,5] Claim of J. Aron & Co., Inc., for Moore Stave Company alleges that 66,307 shortage of 73 tons of scrap steel rails: The staves were shipped on board the Muskegon, bill of lading was issued April 30, 1919, and it is admitted that this merchandise was eight days after agreement between the Inloaded on the Muskegon. At Genoa, there ter-Allied Shipping Company and the Carawas an actual shortage of 1,370 staves. No vel Steamship Company had been entered indefense is pleaded or proved which would ex- to, and is prima facie evidence of their decuse the carrier.

livery. The master of the Muskegon filed at Claim of United Shoe Machinery Corpo- the custom house in New York an official ration for shortage of one case of wire and sworn manifest, which included these steel two cases of nails: The proof of this loss is rails, describing them, not as the 73 tons uncontradicted.

"steel scrap rails," as mentioned in the bill Claim of J. Aron & Co., Inc., for short- of lading, but listed them as 284,840 pounds age of 19 bags of cocoa: It is admitted that of "old steel rails,” which is a greater weight 1,298 bags of cocoa were shipped, and the than 73 tons, which tends to confirm the priuncontradicted testimony is that less than ma facie case made out by the libelant. that amount of bags were delivered; there- A bill of lading, as a receipt, may be confore there is a shortage, which should be tradicted or explained. The Isla de Panay made good.

(C. C. A.) 292 F. 723. But an examination of all the testimony and the exhibits shows a [7] Claim of Selson Engineering Company lack of convincing proof sufficient to over- of New York, Inc., for damage caused by decome the case made out by libelant. The preciation of the lire: The Muskegon arMuskegon arrived in Genoa on June 18, 1919, rived in Genoa on June 18, 1919; the loss by and her cargo was all discharged by June depreciation of the lire is based upon the 26th, but it was not until July 12th, after the payment of the purchase price in June, 1921. ship's agents had twice refused to deliver the The Muskegon cannot be held accountable for rails unless the freight was paid, and when such loss. It is too remote. finally the consignees consented to do so, that [8] Claim of D. Scrivanich for duplicate the consignees were told that the rails were freight paid: This is an obligation of the not on board; and it must be admitted that libelant for 2,338.80 lire to be paid in Italy, the testimony that the rails were not on board so that he is entitled to recover that amount at Genoa is not particularly strong, and does of lire at the rate of exchange existing at the not preclude the possibility that the rails may time of the entry of the decree herein. have been taken off, as the Muskegon un- [9] The rate of exchange to be applied in loaded her cargo upon three wharves in Gen- computing the freight claims which are aloa, and a part being discharged into lighters. lowed is the rate prevailing at the time of The ship has not produced the master, the the breach of the contract. Guiness v. Miller mate, nor any one who was present during (D. C.) 291 F. 769, affirmed 299 F. 538, C. the loading, nor the stevedores who discharg- C. A. 2d Circuit, April 14, 1924. In this ed her cargo, nor any record which contra- case our Circuit Court of Appeals said: dicts the bill of lading.

“The rate of exchange on the date of the [6] Claim of G. Jaris for damage to codfish: injury or breach of contract is the measure It is admitted that it was carried on the Mus- for transferring the indebtedness into the kegon. While the bill of lading recited, “In United States currency.

We regard apparent good order and condition,” that this rule as applicable, whether the action be does not necess

essarily mean that the cases con- in contract or in tort. Primarily the plaintained sound codfish properly cured for a sea tiff is entitled to recover a sum expressed in voyage in the summer. At the end of the foreign money. In theory, he is to be made voyage, on which there were no unusual de- whole for the injury suffered at the time. lays, the fish was found to be decayed. In The judgment which grants him the relieť the absence of all proof that the fish was in should express in our currency the rate of good condition when delivered to the Muske- exchange prevailing at the date of the breach gon, I believe that the decay was due to its of the contract or at the date of the commispoor condition when shipped. The bill of

sion of the tort." lading contained the following clause:

See, also, Birge-Forbes Co. v. Haye (C. That the carrier shall not be lia

C. A. 5th Circuit) 248 F. 636, 160 C. C. A. able for losses or damage occasioned by

heating, frost, decay, putrefaction, 536, affirmed 251 U. S. 317, 40 S. Ct. 160, 64 ,

L. Ed. 286. rust, sweat, 'change of character, of any of

The stipulated rate of exchange at the the goods, whether shipped with or without disclosure of their nature or any loss or dam- time of the breach of the contracts was 8.03

lire. age arising from the nature of the goods, and that the carrier shall not be

Accordingly, decrees may be entered for concluded as to the correctness of statements duplicate freight payments in favor of the

following libelants for the respective herein of quality, quantity, gauge, contents,

amounts: weight, and value.” In The Isla de Panay, supra, Judge Rog- J. Aron & Co., Inc..

$ 4,103.69 ers, speaking for the Circuit Court of Ap- International General Electric Compeals, Second Circuit, stated :

33,037.28 "The general rule is that, where a loss G. Jaris & Co.....

Gaston, Williams & Wigmore, Inc... 27,483.99

5,970.00 arises from an excepted peril, the ship is pri- United Shoe Machinery Corporation 5,624.48 ma facie excused, and can only be held lia- Lucas E. Moore Stave Company... 2,320.75 ble upon affirmative proof that some negli- Worthington Pump & Machinery

Corporation

1,428.64 gence on the ship's part was the efficient cause

Caldwell & Co., Inc..

1,141.12 of the loss."

Selson Engineering Company of New See, also, The Konigin Luise (D. C.) 173 York, Inc....

969.89

643.24 F. 811; The Koranna (D. C.) 214 F. 172; E. Renzo Corinaldi Cohen.

W. P. Marseilles...

60.29 Tolibia & Co., Inc., v. S. S. Orion (C. C. A.) Allied Machinery Company of Amer290 F. 379.

ica

2,620.76

pany

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10 F.(20) 823 -and in favor of the libelant D. Scrivanich its sworn bill of complaint contained alleged for 2,338.80 lire, at the rate of exchange ex

erroneous statements concerning extent and isting at the time of the entry of the decree such matter not being material.

character of its business in patented article; herein; awarding the various libelants, in accordance with the above, the expenses they 3. Patents em 255—Patentee, by advertising re

placement of worn parts by replacement of were reasonably put to for watching, storage,

assembly unit, held not to have licensed pub. etc., by reason of the failure of the Muske- lio to make such unit. gon to deliver the cargo as required by the Patentee of electric ignition device, by ad. bills of lading, with reference to a commis- vertising the ease with which contact points sioner to ascertain the amounts thereof; and complete breaker plate assembly, held not to

could be replaced by removing and replacing Awarding the libelant J. Aron & Co., Inc.

, have invited or licensed public, without conthe value of cocoa short-delivered and the sideration, to make such breaker plate assembly loss and damage to 617 barrels of turpentine unit. short-delivered and damaged, and the value 4. Equity Em 24-Forfeitures not favored in. of 73 tons of steel rails short-delivered, with equity, and enforced only where necessary to reference to a commissioner to ascertain the sustain rights of another. amounts thereof; and

Forfeitures are not looked on with favor Awarding the libelant United Shoe Mach- in equity, and will be enforced only in clear

cases, where necessary to sustain rights of inery Corporation the damages caused by the another. shortage of one case of wire and two cases of nails short-delivered by the steamship 5. Patents am 283 (1)-Language of patenteo's

advertising construed to vitalize, and not to Muskegon, with reference to a commissioner

paralyze, invention. to ascertain the amount thereof; and

Where patentee has made an admitted adAwarding the libelant Lucas E. Moore

vance and contribution to the art involved. Stave Company its damages caused by short- language of his advertising should be construed age of 1,370 staves short-delivered by the to vitalize, and not to paralyze, the invention. steamship Muskegon, with reference to a

6. Patents On 255—Difficulty in making repair, commissioner to ascertain the amount there- arising from patentee's form of manufacture,

does not entitle user to make replacement,

if repair is possible. Awarding the respective libelants interest on all sums due, with the costs in their suits; it difficult, costly, or inconvenient for user to

That patentee's form of manufacture makes and

make a repair, easily accomplished by replac. Dismissing the claim of G. Jaris & Co. ing an assembly unit, does not give user right for damage to codfish.

to make the replacement, so long as he is not
prevented from making the repair.
7. Patents en 255—Patentee, by advertising

replacement of assembly unit, held not to

have' fixed its legal status as a repair part, CONNECTICUT TELEPHONE & ELECTRIC when in fact it was replacement. CO. V. BROWN & CAINE, Inc.

Patentee of electric ignition device, by ad(District Court, N. D. Illinois, E. D. January repaired by removing and replacing complete

vertising that worn contact points could be 25, 1926.)

breaker plate assembly unit, held not to have No. 4750.

legally fixed the status of that unit as a repair

part, when in fact it was a replacement. 1. Equity m65(2)-Plaintiff, in patent infringement suit, held not to have come with 8. Patents 255-Patentee may make and unclean hands, due to representation of prior user may repair patented device as desired, adjudication.

but user cannot replace elements not worn

out. In patent infringement suit, plaintiff held not chargeable with having come into equity

Patentee has right to make device as he with unclean hands, because it procured order

sees fit, and user the right to replace a wornto show cause why preliminary injunction

out element with a new, in any way he chooses, should not issue on representation of prior ad- except that he must not replace elements of the judication, when in fact prior litigation re

device that are not worn out. sulted in entry of consent decrees only, where

9. Patents 328. true facts were timely brought to court's attention.

Wilcox & Lawton patent, No. 1,113,850,

claim 6, for double leaf spring to co-operate with 2. Equity m65(2)-Plaintiff, in patent in. breaker arm of igniting device, held valid and infringement suit, held not to have come with fringed. unclean hands, due to alleged erroneous repre. sentation concerning extent of business. 10. Patents Om 328.

Plaintiff, in patent infringement suit, held Wilcox & Cavanagh patent, No. 1,204,104, not to have come with unclean hands, because claims 1, 2, 3, 4, 6, 7, 8, 9, and 11, for breaker

of; and

assembly replacement unit in igniting device. fectly, and, if the impairment is considerable, held valid and infringed.

the contact points must be renewed. 11. Patents Om 328.

The issue in this case centers upon the Johnson patent, No. 1,266,811, claims 1 and right of the purchaser of a Connecticut igni3, for skeletonized formation of breaker arm tion system to recondition the apparatus by of igniting device, held valid and infringed. a renewal of the points. It is physically 12. Patents 328–1,221,239, claims 1, 2, and mechanically possible to introduce new and 3, for slip terminal plug for electrical points into a Connecticut igniter in any one connection, valid and infringed.

of three different ways, and the defendant asStahl and Cavanagh patent, No. 1,221,239, serts that it is within its legal rights in claims 1, 2, and 3, for slip terminal plug af: choosing the method whereby the Connectifording electrical connection for igniting device, held valid and infringed.

cut breaker mechanism may be reconditioned,

namely: In Equity. Patent infringement suit by (1) By supplying the contact points septhe Connecticut Telephone & Electric Com- arately, to be fitted into place in a genuine pany against Brown & Caine, Inc. Decree Connecticut breaker assembly. for plaintiff.

(2) By furnishing movable contact Banning & Banning and Samuel W. Ban- points, already mounted or secured to & ning, all of Chicago, Ill., and George H. Mit

breaker arm. chell, of New York City, for plaintiff.

(3) The substitution of the complete Brown, Boettcher & Dienner, of Chicago, breaker assembly, including the base plate, Ill., for defendant.

pivot stud, breaker arm, double leaf spring,

movable and fixed contact, terminal conCARPENTER, District Judge. This suit nections, cam roller, and lever pin, which eninvolves Wilcox & Lawton United States gages the lever in the housing. patent No. 1,113,850; claim 6 being in dis- The right to make this entire substitupute. The claim is directed particularly to tion of parts is insisted upon by the dethe double leaf spring which co-operates with fendant. Here is the crux of this lawsuit. the breaker arm of the igniting device de- The Connecticut ignition system of plaintiff scribed. It involves Wilcox & Cavanagh involves what is well known in the art as United States patent No. 1,204,104; claims an igniter-a timer mechanism alternately 1, 2, 3, 4, 6, 7, 8, 9, and 11 being in dispute. to close and open a battery circuit by the These claims are directed particularly to the meeting and spreading apart of contact breaker assembly replacement unit, which points. It is an instrument of precision, carries the parts in permanently assembled requiring perfect functioning of parts, esarrangement, and constitutes a unit of re- pecially the contact points. construction, replaceable when the contact The plaintiff's patents relate especially points become worn or burned out. Plain- to a slip terminal plug, a two-leaf spring, a tiff, in addition, relies upon Johnson United form of movable breaker arm, and what is States patent No. 1,266,811, claims 1 and 3 herein designated as a breaker arm assembly, of which are directed to the special or pe- The main contention here is upon the breakculiar skeletonized formation of the breaker er arm assembly, as a removable unit, and arm; and Stahl and Cavanagh United States whether a sale of such a unit constitutes lepatent No. 1,221,239, claims 1, 2, and 3 of gitimate repair for a damaged or worn-out which are directed to the slip terminal plug, part of the igniter, or is replacement. affording an electrical connection for the This removable breaker assembly unit is igniter.

mounted upon a plate, and comprises a fixed The plaintiff is engaged in the sale of au- and a movable contact point, a two-leaf tomobile ignition systems, which embody and spring, a slip terminal plug, a special form contain the features defined and claimed in of movable breaker arm; the movable conthe patents in suit. The entire device is tact point being mounted on the end of the designed to control the operation of the elec- breaker arm. With the exception of the trical contact points. It is essential that spring and the contact points (which latter when closed the points shall be in perfect frequently become damaged and require recontact, and that when separated there shall newal), the life of the several elements menbe a perfect separation. If the points be- tioned would ordinarily extend throughout come worn or pitted by burning, due to the life of the device as a whole. electrical causes, so that the area of contact The plaintiff admits that any one may reis reduced, the device will operate imper- move the breaker assembly unit, remove the

a

10 F.(20) 823 damaged contact points, or a broken spring, vice, and is plaintiff thereby estopped from substitute new ones, and replace the repaired maintaining a suit to restrain an infringeassembly unit; that this is mechanically pos- ment of that character? There seems to be sible, and requires but a few minutes. The no precedent on this precise question, and plaintiff, however, for reasons of its own, the answer must be reached by application of which the defendant charges to be mala fides, general principles to specific facts. has riveted or otherwise so fastened the sev- [1,2] The charge that plaintiff does not eral parts of the assembled unit that it is come into equity with clean hands, and therein fact difficult to make the substitution of fore is estopped from seeking redress in a new or damaged part, without endanger- equity, is based upon the allegations by deing the nicety of adjustment, and without fendant that an order to show cause why a considerable expense. The result is that us- preliminary injunction should not be granted ers generally remove the assembly unit, pur- was secured upon a representation of prior chase a new one complete from plaintiff, and adjudication of the patents in suit, when in install it in the igniter, instead of repairing fact the prior litigations had resulted in the the old and removed unit. The defendant entry of consent decrees only; and that in makes and sells a complete breaker plate the sworn bill of complaint plaintiff made assembly as a unit, for use in the Connecti- alleged erroneous statements concerning the cut igniter; also several of the separate ele- extent and character of plaintiff's business ments, such as the breaker arm, the double in the patented article. There is no allegaleaf spring, the slip terminal plug, and a tion that plaintiff has made any improper substitute stud bearing..

use of the consent decree in the trade to inIt is urged by the defendant that the fluence the public or the trade as to the plaintiff, having no claim to the individual validity of its patents, but only that its true, elements, and no claim to the breaker assem- but perhaps misleading, statements were bly, but only to the assembly as a subcombi- used in this litigation as an apparent basis nation of certain of his patented claims, for the show cause order and the injunction therefore the defendant has a right, not only prayed for. to make and sell the separate items above No rights of the defendant are asserted noted, but also the assembly unit as a whole, to have been violated, or any of its legal defor and as legitimate repairs to a Connecti- fenses impaired. The true state of facts, cut igniter. The defendant insists that plain- however, was called to the attention of the tiff is estopped in equity from maintaining court with sufficient promptness to prevent this action (a) because plaintiff does not any inadvertent or summary action by the come into equity with clean hands; and (b) court. On a motion for an order to show because in certain literature to the trade, cause, the fact of prior adjudications, whethto induce sales, plaintiff has instructed the er on the merits or by consent decree, is public how to do the very thing here com- not necessarily controlling. As a matter of plained of, has invited the public to make fact, the character of the prior decrees was the repairs, and has, in effect, licensed the disclosed to the court by plaintiff's counsel, doing of the acts complained of; and par- and such admission absolved plaintiff of any ticularly so because plaintiff has given no charge of coming into equity with unclean notice of any patent monopoly in so doing, hands. nor made any assertion or reservation of The statements with respect to the extent any exclusive rights in this regard.

and character of plaintiff's business, in plainThe real legal question raised this: tiff's sworn bill, asserted by the defendant Does a patentee, by making statements in to be shown to be erroneous, are the usual bis patent and trade literature concerning general allegations of bills of this character. the ease with which, and a method by which, The extent of plaintiff's business at the time the patented device sold may be repaired of filing the bill is not material to the issues upon the wearing out of one of its parts, involved; the fact that its once large business and without reserving the sole right to

is shown to have been curtailed is no more make the repair by that specific method, and relevant than the fact that plaintiff has no by using certain mechanical arrangements business at the present time. The issue is which make it difficult, although not impos- not whether the plaintiff is engaged in mansible, for the user to substitute a new part ufacturing the patented devices, but whether for the part worn out, grant an implied li- or not the defendant has violated plaintiff's cense to the public to use his particular exclusive rights. method of reconditioning the patented de [3] The second ground upon which estoppel

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