"On the part of the plaintiffs, however, it is claimed that these men went there; that they made this joint; and that when the joint exploded they were actually working there under instructions, or at the suggestion of a man who had been sent there to take care of that joint."

This sentence, however, is taken out of its context, and when it is. read with what precedes and what follows we regard it as unobjectionable. Indeed, even if it be taken by itself, we see no reason to criticise it. Cochran was examined at length, but he was not asked the question whether he had left any suggestion for Nist and Foulds, and under the circumstances it was certainly not improbable that if they returned to the joint their return might be accounted for as the plaintiffs claimed.

The company relies mainly upon the argument that the jury should have received binding directions in its favor, because Nist and Foulds were chargeable with contributory negligence. It is contended that they took an obvious and dangerous risk, and took it of their own volition, without order or suggestion from their superiors; that they abandoned a place of safety and exposed themselves to a danger that was evidently threatening; and, since this appeared without contradiction, the request for binding instructions should have been granted. In our opinion the argument assumes too much. As we have already indicated, it is largely a matter of conjecture how they came to be where their bodies were found. All that we know with certainty is that the explosion took place, that they were in the boiler house at the time, and that they were afterwards found dead. How near to the joint they were does not appear in the record, neither was it proved how they were killed, whether by wounds inflicted by pieces of the broken joint, or by the scalding effect of escaping steam. The principal evidence on the subject is the following extract from the testimony of one witness:

"Q. When you got to the boiler house, what did you find?

"A. Found nothing but a lot of steam blowing out, was all you could see. "Q. Anybody coming out of the boiler house?

"A. Coming out, them that could get out, and doors there to let them out. "Q. Did any of you men who were there try to get into the boiler house? "A. We did try to get in, but it wasn't safe to go in.

"Q. Did you go in at all?

"A. We went in after the steam had got down so that we could get in. "Q. Did you see Mr. Nist and Mr. Foulds immediately after this explosion? "A. Seen them after the steam had let down so we could get inside to see anything at all; seen them lying side by side.

"Q. Did you see them in the boiler house, or after they were carried out? "A. When they were inside there.

"(Defendant admits that these two men were killed as the result of this explosion.)"

In addition to this, one other witness testified as follows:

"Q. Where was that joint to which you refer?

"A. Why, it was right on the steam line. The joint was right on the steam line.

"Q. Where was it with reference to where Mr. Nist and Mr. Foulds were injured or killed?

"A. Where was it?

"Q. Yes?

"A. It was on the steam line, the joint was.

"Q. Are you speaking about the joint at which Mr. Nist was killed? "A. Yes, sir.

"Q. You are?

"A. I am speaking of that joint."

But it does not appear from this incidental allusion whether the witness was testifying from his own knowledge or from what he had heard, and his answers therefore throw little if any light upon a point that cannot be considered unimportant. It may be that the situation of the bodies was so well known to counsel, the jury, and the court that the need of proving it definitely was overlooked by both sides. If this is the fact, it is a matter for regret; for we are necessarily confined to the record as we have it, and we might often go astray if we ventured to assume what is neither proved nor clearly to be inferred. Moreover, there was conflicting testimony on the point whether the leaking steam meant that the joint as a whole was in great danger, or whether it did not mean merely that the gasket (which is one part of the joint) might blow out. The latter occurrence, in the opinion of some of the witnesses, was not a very important matter, and was not likely to result in serious harm. Taking the whole situation as it was presented to the court below, we do not see how the defendant's prayer for binding instructions could have been properly granted. It was for the jury to say how the fatal injuries were inflicted, how threatening the danger was, and whether the decedents were negligent in voluntarily exposing themselves to a peril that was obvious and might result in much injury. A trial judge cannot infer contributory negligence from disputed facts. He can only pronounce upon it as a matter of law, when the facts are plain and practically uncontroverted, and the inferences cannot fairly be escaped.

In each case the judgment is affirmed.

REIZENSTEIN v. KOOPMAN et al.

GOLDSMITH v. SAME.

(Circuit Court, S. D. New York. April 14, 1909.)

PATENTS (§ 218*)—ROYALTIES-RIGHTS.

On an accounting between partners in the ownership of a patent under a license contract with one of the partners by which he was authorized to grant sublicenses, accounting to the partnership for a stated royalty on each of the patented articles sold by the sublicensee, where a sublicensee paid an agreed sum for the license privilege which entitled him to sell a stated number of the articles without further payment, the partnership is entitled to the royalty on such number, without regard to the number actually sold.

[Ed. Note. For other cases, see Patents, Dec. Dig. § 218.*]

In Equity. Suits by Emile Reizenstein and Edwin M. Goldsmith, respectively, against Elias B. Koopman and another. On exceptions to master's report. Exceptions overruled.

See, also, 152 Fed. 173, 81 C. C. A. 465.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Harrison B. Weil (Eugene Treadwell and Isaac Hassler, of counsel), for complainants.

Parker & Aaron (Herman Aaron, of counsel), for defendant Koop

man.

HAZEL, District Judge. This action arose from a breach of fiduciary relations existing between the complainants Goldsmith and Reizenstein, the defendant Koopman, and others, as copartners. proven at the hearing that the defendants Koopman and Upton perpetrated a fraud upon the complainants, and accordingly the Circuit Court made its decree canceling an assignment executed by them by which in terms they assigned to the defendant Koopman, for himself and his associates acting with him, their interests in the patented invention which is the subject of this controversy, together with the gains and profits arising from a license agreement which had been made by the joint owners of the parent with John H. Brigham, who was one of the copartners. It appeared that the defendant Koopman, without the knowledge of complainants, was jointly interested in said license agreement, with the fraudulent intent to secure secretly a certain contract with Wright & Butler, Limited, of London, England, to the exclusion of the complainants, whereby $20,000 was paid for sublicense rights. 140 Fed. 616, affirmed 152 Fed. 173, 81 C. C. A. 465. The master was directed by the court to make and state an account of the number of coin holders sold in foreign countries, except Canada, by or through said Brigham, the defendant Koopman, and others associated with him, or by concerns abroad, under license, "and for the sale of which banks royalty was paid." The master found, upon the evidence before him, that there had been sold by the licensee to J. G. Rollins & Co., Limited, 729,292, and to Wright & Butler, Limited, 1,087,888, pocket banks or coin holders; that such sales were made under the license agreement to Brigham, which in substance provided that there should be paid to the owners of the patent a royalty of one cent on each bank sold. The complainants under the license agreement were each entitled to receive one-quarter cent on each bank sold.

The exceptions filed herein relate to the inclusion by the master of 57,600 patented pocket banks or coin holders claimed by the complainant to have been sold to J. G. Rollins & Company, Limited, and also to an excess of 464,808 sold to Wright & Butler, Limited. The defendant claims that pocket banks were not in fact sold to Rollins & Co., but they were merely consigned to it with the understanding that they would be sold on commission for Brigham, the licensee. It appears that the banks were insured by Rollins & Co., and subsequently, while in its possession, they were destroyed by fire. The insurance policy which was issued to Rollins & Co. was subsequently delivered by it to Brigham, the insurance money was collected by it, and the amount paid to Brigham, who secretly acted for himself and associates, to the fraudulent exclusion of the complainants. The contention now is that the defendant Koopman should not be required to account for royalties on the burnt banks, for the reason that they had not been

sold to Rollins & Co. On the proofs, however, I think the banks must be considered as having been sold by Brigham, acting for himself, the defendant Koopman, and their associates. The entries in the books of the New York Introduction Company, under which name the business of selling the banks was in part conducted, and of Rollins & Co., indicate an absolute sale to the latter company, which accounted to the defendants for the banks at the rate of 52 cents per coin holder, that being the selling price and the amount recovered from the insurance company. Such being the facts, it is a fair presumption that the parties to the transaction regarded that these particular banks had actually been sold. There are journal entries showing the return by Rollins & Co. of certain other banks to the New York Introduction Company; but, as the burnt banks were accounted for upon the basis of a sale and transfer, the master properly held the defendant accountable for such sale, and the complainants are entitled to receive their share of the proceeds in accordance with the license agreement. In relation to the Wright & Butler transaction it appears that the arrangement was that the sublicensee was to pay and did pay $20,000 for the license rights and privileges enjoyed by Brigham. In addition thereto it is conceded that Wright & Butler also paid a royalty of $4,813.63 on 287,000 banks sold and delivered by the New York Introduction Company. Defendant contends that it is shown by the book entries in evidence that only 623,000 banks were invoiced or actually sold to Wright & Butler, and that the amount of $20,000 paid under the sublicense contract was not a royalty on sales, and hence the master erred in requiring the defendant to account therefor. This position, however, is not maintainable. Under the license agreement Brigham obtained the right to grant sublicenses in consideration that he would pay to the owners of the patent a royalty of one cent on each bank sold. The fair intendment of the parties was that the royalty should become payable either on actual sales or upon such as were licensed to be manufactured or sold. That such was the intention evidently was recognized in the Koopman agreement (Exhibit H) with the sublicensees, for there it is stated that the $20,000 were to be paid to the licensee for his surrender of the right to sell banks in the United Kingdom, and that the amount of $20,000 was computed at the rate of 22 cents upon the sale of 800,000 banks, which the sublicensee guaranteed to sell. In view of the conceded facts, the point that the complainant must show affirmatively that 800,000 banks were actually sold by Wright & Butler is without force. It is enough that Koopman and his associates received the sum of $20,000 upon the guaranty to sell the banks. Such amount received was a royalty within the meaning of the license agreement, for which the defendant must account at the rate of one-fourth of the royalties to each complainant, together with interest.

No sufficient reason is assigned by the defendant for sustaining the exceptions to the report of the master, and they are therefore overruled, with costs.

INTERNATIONAL CURTIS MARINE TURBINE CO. et al. v. WILLIAM CRAMP & SONS SHIP & ENGINE BLDG. CO.

(Circuit Court, E. D. Pennsylvania. February 15, 1910.)

No. 263.

WITNESSES ( 16*)—PRODUCTION OF DOCUMENTS-PUBLIC POLICY-NAVY DEPARTMENT PLANS. Where, in a suit to restrain contractors for torpedo boat destroyers containing certain turbine engines alleged to infringe complainant's patents, complainant's witnesses, who had examined the plans and specifications on file in the Navy Department, testified that the turbines called for constituted an infringement of complainant's patents, and in answer to a subpoena duces tecum to compel defendant to produce copies of the plans and specifications, defendant contended that such disclosure was objected to by the Navy Department as detrimental to the interests of the United States, in that it would divulge military secrets, while complainant insisted that the Navy Department objected merely because it was detrimental to the interest of the United States for the department to disturb the cordial relations existing between it and the contractors, and that the furnishing of the copies by defendant voluntarily or by process of the court was not objected to, the matter will be continued until a statement of the Navy Department can be filed showing the grounds of its objection. [Ed. Note. For other cases, see Witnesses, Dec. Dig. § 16.*]

In Equity. Suit by the International Curtis Marine Turbine Company and others against William Cramp & Sons Ship & Engine Building Company. On motion to produce documents. Continued for departmental information.

C. B. Fraley, Richard N. Dyer, and Frederick P. Fish, for complain

ants.

C. V. Edwards, Abraham M. Beitler, and Samuel Dickson, for respondent.

HOLLAND, District Judge. Some time in the summer of 1908 the United States government invited proposals for the building of torpedo boat destroyers provided with steam turbines for propulsion. The defendant bid and was awarded the contract to construct two of these vessels, and on October 1, 1998, signed articles of agreement with the government for the building of the same. Plans and specifications upon which the defendant submitted its bid and upon which it was awarded the contract were filed in the Navy Department at Washington, These were examined by permission of the officials in the Navy Department by the complainant's engineers and counsel; but they were not permitted to make copies of them. The conclusion at which the complainant's representatives arrived, after the examination of the plans and specifications on file, was that the defendant company, in constructing the steam turbines for the propulsion of these torpedo boat destroyers, was infringing the complainant's patents relating to elastic-fluid turbines, commonly known as "steam turbines," and thereupon this bill was filed, alleging, in substance, that the defendant offered in writing, accompanied by certain plans and specifications, to build for the government elastic-fluid turbines embodying inventions

For other cares see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes