.'", 'OvEBlU.N
NORroN
II.
nmsEl'f.
859
W:ium.
Co.' fl. EwoTT 'HICltORY CYCLE Co. 18llS.)
,Cot.'r&, D. J'QB
, " th!, isill1l(l.g oh\1atent where. ('ltter alia, the mv,entJ.c>.llh,1&8 been descrlbEld'fn."an.r.foreigD country the,date of the llivention, a bill for tntrtngeIDent of __tent Sa demurrable whioh does no'
allep
I ,1':/.: : .' _
.·
.'
'.:
In Equity. Suit by the Overman Wheel Company against the Elliott Hickory Oycle Company for infringement of a patent. Heard on demurrertO the bill. Demurrer sustained. ' .' OhatmlkrZin, White & Milh, for cotr.plainant. Williaflnt. Redding, for defendant.
CoLT, Circuit Judge. Upon inspectionofthe patent granted to A. H. \)verman, April 14, 1885, numbered 815,537, for improvements in rubber tires for wheels, I am not prepared to say that it is invalid for want of patentable novelty. Taking this view, it seems to me it would serve no good purpose to enter into a discussion of the patent at this stage of the proceedings. The first three grounds of demurrer are therefore overruled. The fourth special ground for demurrer is that the bill does not aver that the alleged invention shown and described in said letters patent had not been patented nor described in any printed publication in this or any foreign country before, the date of said alleged invention. An allegation ohbis character appears to be necessary, under the provisions of the statute, and the so held. Rev. St. § 4886j Comolidnted Bmke Shoe 00. v. Detroit Steel &; Spri:ng 00., 47 Fed. Rep. 894; C'i>0P v. Institute, ld. 899. Upon this ground lshall sustain the demurrer, with costs, with leave to the qomplainant to amend ita bill within 10 days. Demurrer sustained.
NORTON
et al.
'l1. JENSEN
(Circuit CO'Un't oj Appeals, Ni.nth. Cwcui.t. March 10, 1892.) \.
WhUe the opinions of experts in patent cases are entitled to as the juc1srIDent of perlons skilled in the partIcular IDatter under investigation. yet they are not binding upon the court, and win be rejected if they do not appear reasonable and satisfactory· It is the duty of courts to construe a patent by a reference to the langnajf8 of ita claiIDs,.and an sxaIDination of the speciftcations and drawings acooIDpanying the saIDe. B.um-OBIGINAL INVBNTOBS-INPRINGBM:BNT. OF PATENTS.
INVENTIONS-ExpBRT EVIDENCB.
...
a.
Oril¢nal inventors have the right to treat as infringers all persons who IDake devices or IDachines operatinlr on f.be saIDeprlnciple and perforIDing the same.funl> tions by analogous IDeans, or eqUivalent combinations. even though tbeinfringing IDachine may be an iIDproveIDent of the original, and patentable as suob.
86q
FEDERAL ,REfqRTER,
vol. 49.
" B,urn. It the patentee's Ideas are found In the construotion and arrangement of the sub-
sequent ,belts form, shape, or, appearance, the parties making or us,frill', it a.re d.e.e.,m.ad appropriators of t,h,e,'. patented i,n,vention, and are Infrin/{ers. 4n takes place whenever a party avaUs himself of the inventIon of'the paterltee;:JWithout such a variationascbnstitutes a new discovery. ", " '"." '
J.
When a com " Dew arrang-emeoto! old producing a Dew and us ll1UI1e may be protected by InvokingtheQ.QOtr\ne of equiv&tit.uti0A-for any particuJar elementofa,d,ilIerent ,deVice , lents, as agains. known at the dlipatent'/lis a means of performing simll,at work; and the fact that the 8ubstltute performs some additional funotions d068 nOli prevent it from being an Infringement. " / ! ' ;
B.uj:E-COMBINATION CLAIM-EQUIVALENTS.
..
There canpot a com,blnatlon claimuille8B every elemed of the combinatiOn, or II. mechanical equivalent of an oD;lltted a used.
'I.
PATENTS FOR INVENTIONS-CONSTRUOTION OF CLAUlS-PBIMAB:r INVENTION-CAN. HEADING MAOHINES. ," ,: .
Claim 1 of 8aid:pateati claims, In a can,headlDg machine, "the .comblnatlon of a device for sizinlJ the exterior of the body ,to to diameter of the oan head, and h01dlDg the same so sized whIle the head IS apphed, . "aid sizing' and Mlding having Its end enlarged to 1It the exterior diameter of the can head, so as to leave an annular spa·ce between it and the can body.for the reception of the 1Iange of the can head with a devioefor forcing the can head into said space,and thereby applying the can head. ,outside the oan body, 8ubstantially as specified." In the specifications the patentee' says that he does 'not limit his invention to the partioular mecnanism employed, and suggests varia,involving 8ame prlnoiples. Beld, .that the claim is infringed by the "Jensen mac!li,ne,"Which.ls under letters patent :N'O, and which opel'Ktes on th,'e atile, P,rinei.pIe, tliough it is so arranged that only one end is capped at. th,e ,.(lan .. i8,11111,ivered side, ise, a,nd the oan bO,d. Y endwise,toth,'e , mOld, anll thEl can body ia m,oved towards the can heaQ., while In the Norton patent both ends areca,'PPed,,'t,fie Can head is delivered eildwi'se, the can-body sidewise, and head: 'w-wards the can' body.' , '8, oW,
OF C<WStBtI'OTION.
9.
Clabp. 9 of t,he Nortonw.'tent 90vers a combinationo.f devices, with llachllle delIvering the can' bodies. to t'liemachine," and "a chute or device for dellvering the can heads to the machine." In ,theae' allutes the parts are delivered by force of gravity. HeW, that these elements were infringed by the Jensen machine, tbougb the parts did not deliver themselves, but were moved along by a traveling belt and a reoiprocating feeder, since these, being well-known davices, served merely as SUbstitutes or equivalents of the chutes.
CW-IM-;E)QuIVALENTII.
,.'
10. BAME. In letters patent Issued March 20, 1888, toli'orton & Hodgson, olaim covers "the combination o't'the can body, clamping deVice or mold, with a chute for the can heads, a reciprocating bead 01' piston at the ,base of, said chute for automatically fselling thEl can heads' to the mouth of the mold, and applying the same to the can body. and a spring pin or device for holding the can head in position at the mouth of the mold." Beld, that this claim was infringed by the Jensen mach,iue, evidence showing that the spring-pin deVice, sometimes used therein, Opera1ied in substantially the same way to hold the can head in position at , tl\6 mouth of Ple mold, and was combined with ,the mold,pil!ton, and can-head chute. 11. SAME· . Claim 7.of the.same patent covers "the combination of the delivery chute wheel hal'ing4alf,molq.s upon ita periphery, reoiprocating half mold; chute for the can heads, piston for applying the same to the can bodies, and discharging chute 8ubstantiallyas specified." Held, that this claim is infringed ,by the Jensen machille, s,ince the evidence shows that the l'eciprocatinlt and revolving bar and fing,e.rs Qf the latter are m,erelY,an equivalent of the can-body feedin,g wbeel, and that In therelJ1 a rE!Ciprocating half mold mounted on the frame of the .
861 11. . Letters patent No. 294,065, lellned Februan- 9&,1884, to Norton & Hodgson, Is for an improv.etnent on the can-headinlf: machine, as before dellOribed, and' in claim 14. covers a combination therewith. ,of .mechanism for heading and compressing into · seam. the fiangel uniting tile can head, and body, subltantiaUl as specified." Held. that, as thil patent shows the ftrst comJ;>ined can-heading and oriIDping machine, entitled to a ij})eral conltruction, and II thereforeinfnnged by the Jensen'machme, although the latter employs a rotary crimper, while the former use a squeezing jaw crimper, both being well-known devioelk, . '. ,' . ' . .' . . 01' CLAIM.
28.' BAMll:. "
Patent No. 822,060, iSlilued July 14, 1885, to Edmund Jordan, wbich covers an improvement on the original Norton maohine, consisting mainly in the method of mO!Jnting tDe mold, and of delivering the cans and can heads to it, is also tn. fringed bY' the Jensen machine. Letters ,patent No. 807,197, issued October,28, 1884, to EdDiund JordlUl, for a canheading having" a segmental clamp-chuck, "is notinfringed by the Jensen mallhine; Whioh has many fellotures of likeness, as the evidence shows that the Jordan machine is'too slow and oumbersome in its operation to bea practical machine for heading cans of the size require!! for putting up fruits, vegetables, meats, fish, etc., and that the Jensen machine wUldo suoh work successfully and at reasonable cost. ' , BAWLBY,·Diltriot JUdge, dissenting. ,
1'- BAJB-INVBl!iTiON-SUCCESSFUL MACHI1IlIIl.
.
11.
SAME..
Letters patent No 807,491, issued November 4, 1884, to Norton & Hodgson, covers substantially the same machine as that described in patent 274,863, to the same inventors, with the additional feature that it is so arranged as to hold the can at an incline instead of horizontally, lio as to operate upon filled cans. Held, that this arrangement, and the neoossaryadjustment of the feeding devices, scarcely involved inventive genius; and, it appearing that the machin!l is only partially suocessful, while the Jensen machine, in operating on filled eSns, is completely suooeBliful, there il no infringemen't. BAWLlIY, District diSsenting.
Appeal from the Circuit Court of the District of Oregon. Bill by lj:dwin Norton and Oliver W. Norton against Mathias Jensen and·John Fox for infringement of a patent. Decree for cOIJ:!.plainant8. Defendants appeal. Modified and affirmed. a. W. Fulton and Wheaton, KaUoch & Kierce, for appellants. John lV.> Munday aud Edmund Adcock, for, appellees. Before :liANFORD, HAWLEY, and HAWLEY, .District Judge. This is a suit in equity for,the ment of certajn letters patent. The circuit court entered a decree adjudging that the defendants have infringed claims 1 and 2 of letters patent No. 267,014, dated November 7,1882, granted to Edwin Norton, fOJ' a " machine for putting on the ends of fruit and other cans; " claims 20, 1883, granted 6 ,and 7 ofletters patent No. 274,363, dated wEdwin Norton and John G. Hodgson, for a "can-ending machine;" cl!tim 14 of letters patent No. 294,065, dated February 26, 1884, and J. G. Hodgson, for a" and seaming granted to E. machine;" claim 1 of letters patent No. 307,197, dated October 28, 1884, granted to Edmund Jordan for a" can-euding machine;" claims 1, 2, 3, 8, and 9 of letters patent No. 307,491, dated Noveml:>er 4, 1884, granted to. Edwin Norton ana John G. Hodgson, for·a "can-ending machine;" and claims 1, 2, 6, 7, 11, 12, and of letters patent No. 322,060, dated. July 14, 1881'>, granted to Edmund Jordan, for a" headingmachine." The inventions specified in these letters patent were designed to produce cans having tight exterior fitting heads, and relate to operation in the manufacture of which
882 exactly ·llb the dra butmabeeil'huUt" tlmbodyiDg!,the' essential,.pripclples .outlined in 'for to 1>ne, prlmarypa eu"o,''',. :';',,:: , , A.ppelllmts clajm th,e state of the artat Norton's ,first is No. Decell,lber '21 f to·George H. ,Pierce,' for" mechanism for. placing and soldering heads and cans." This,machine to have been cop.,. 8 ted for· anenti1!8ly different. character ofworli.:from that performed appellees' ll;la¢1)il1es, and to ,essentially different in ttB,mechanism and modes ofoperation. The parent specifies a mechmaking 'cans, the body ot'#hlchis flatedolltwarplyat their ends,"in order to enable a loose inside fitting head to be dropped or pll1C1edon and within suc,ll body"aQd then soldered in But there. is 'another reasonwby the Pierce patent has no partieupon any ,ofthe invelitions or machines in controversy. The clearlyahows that NQrton's original invention was prior of time for letters patent. Norton testifies that he saw or, heard of Pierce'$ patent until after he considererl his invention, and built and used experimentally his first experimental canheading machine, which was made and used by him for the purpose of experiment alone as early as Jul, 15, 1880; thlit"his inveution of the mauhine',6s claimedinclaiQ18 1 'and 20f letters patent No. 267,014, was, in fact, made prior in time to the date of Pierce patent. and 'to the date of fiHng'oftheapplication for the Pierce patent; that. after mak. ing his experiments1 'machine, ,bin the early ,part of1881, made a complete set ot'working drawings for' the patterns/ofa machine like·the of patent No. 267,014; that before his machine was completed Mr;Hodgson and himself had mad'e fUrther improVements, as shown in letters,patent No. 274;863, and that (or this reason the first complete and work!ingautomaticmachine was made like the dtawings and specifi. cations of .said patent, instead of like the drawings in the patent No. 267,014. The first complete machine was made ahd put in public use in 1882. Norton's invention must therefore be considered as being Of a primary character, standing at the head of the art. as the first machine ever invented for applyiNg tight eXterior fitting can heads to can bodies automatically, and appellees' are entitled to a broad and liberal construot-ion of the claims ortheir patent. ",Where an Invention is one ofa prirllnry character, and the mechanical funbtitms performed by the machine nre, aaa uew, aU subsequont machines'which employ substantially tlie same means to accomplish the same restiltare infringements, although the subsequent machine may contain improvements in the separate mechanisms wQich go tomfl.keupthe machine." MachineOo.v. Lancaster, 129U. S. 273,9 Sup. 0k Rep. 299, Appellants contend that Jensen's invention was brought "bout by the necessities of the sa:Imoncanning industry; that his rnatJQDi of p,
jQPP i 9,g" the caQ"", iit:JsMn;u tted :t1Uitno
tt
truc
J868 ':"hide,le. spjclftcaliy p\ittingtbe final nab·,Or other'substance,; "that' it is the only machinerfor, heading C&1'J6 tbatcan ,practically be uSeQ'forfthis purpose; that the Nl)yton, ,machines Qannot·be successfully nsed to i&COOmplishthia result i tbdt the" Jensen ,JDQ.j)hilie carries the .can ,and' beads, .a vertical 'position,;' .that its .hn,1Qsuperiority: over all.other heading-machines is tbepeculiarity ,of its construetion, IlO as to head: cans,_ which areused,ahnost exclusively, in· the.aalmon canning business; that a.ppelletlS· have not 'been.injnred by the·Jensen maobine, because it has simply-met a Wallt could not, 8upply;rltap'pears from the that Jensen, prior' to the:coDstruction of his 'triachine, .villited,Norton's factory in San Franoisco,8lI:d saw and. ,examined his maRhines.': controversy" in the testimony 88 to 'whether 'or Dot appellee's; machines will operate! successfully upon _ cans. ·Mr., Norton ,testifies ·that the:' automatic mabhinemantt:. faetured .under, his patents., work; successfully' upon bnd-mads that, he worked upon hand..made cans for nearly tlVO years,iP'rior to building.· his automatic can-bod, machines,; and that they- worked:"with perfect SUCC8Sll'.": rrpefactthat Jenseu'smachin'e, lIsconstrooted, is au improvement,in:80me respects, upon appellees' macbines,must be admitted; 'but this does not relieve ifM the char.acterotan infringing machine. Norton being tbeoriginal inventor, he, and those claiming under him, would have the right to treat as infringers all persons who mak,e d,eviceB or machines "operating on the same principlE) and performing the, same functions by analogouB means or even though the infringing machine may be an improvement of. the original,and patentable as isuch. "McCormick .,. Talcott" 20 How. 405. See, also; Wells v. Gill; 1 Ban.:& A.77; Kendrickv.Emmwna, 2 Ban. & A. 208; TttrreU v. Spaeth,8 Ban. &'A. :468;Coltv. A1'In8 Co., 1 Fish. Pat. Cas. 108; Winana v.R4iLroad Co;, Fish. Pat. Cas. 2; Whipplev. ManujacfJuring Co.,Id. 29; lftuit Co. v · ·CUrran, 7 &wy. 270, 8 Fedo:l\ep. The real, question to be determined is; whether or not the Jensen ttl8.patent Nl>. 37G,,804 j :dated January 24, 1888, granted .toMathias,Jensen for a 'tcan'crimper and capper"--eontainstbe several invention. a.nd improvements claims ofappellees' ,patents; as heretofore enumerated, the same. Betore. proceeding' to review the. several . olaims in the respective patents :which the decree finds to have been :infringed, it is proper to notice some ,Qt, the general differences which it. is ,claimed exist between the eleIDents and Jnethods of construction in: appellees' machines from the Jensen machme. l· as to tbe mold found in all too patents. It is claimed byappellants·· that the Jensen mold: is vitally different from the mold of the Qtber.patents; that it is' not only differentin but that its mode .. aswell as constrbction, is different, and that.lt acts upon 81;ltirely different principles., On the other hand, the contention of . t.hat. the mold found in all the patents, though different in
I'EDERAL REPOR'l'EB ,\lib!.
49.
coDstmetign,;is)l'lubstahtially. identical in 'principle; that 'the mode of ·eperationisthe.same;and that the differences existing in' the Jensen mold .from, 'machines are of the most formal aDd immaterial rt1ilon the oral, argumep.t of ,this case, niodels of't he respectivemolds-asrwell as of,other portions of the machinery-were brought ltitocourt, by means of which the respective counsel were enabled to fully and clearlymustrate and explain their views as to the construction, purpose, operatioD, and effect of the different molds.· The conclusions to be arrived aUn thistcase depend,' to a great extent; upon the proper soltttionof this question, and necessaril. involve the careful consid"ration: and weighing oLthevoluminousevidence offered by the respective parties, which, in this. case, in several of its features, presents many questions of much embam-assment and difficulty. The testimony upon both sides is principally·. that of experts !lkilled in the science and operationof machinery which they were calledlipon to explain, and iIi their testimony they not only state the· facts concerning the difference in the ooDstruction of the respective machines, butgive their opinions whether oruot"there is.any difference in theoperationofthe 'machines, or in the tlffeotsproducedthereby., . Expert testimony is admissible to explain the ileveraJ c:lrawings, models, and machines that are exhibited upon the trial; their operation, purpose,> and effect, and the differences which exist in the various devices involved in their construction. The opinion of an expert is,.jn certain CJ,ses, admissible in evidence, but it is not conclusive upon the. courts.! It ieto be considered as the judgment and opinion of a person who h ll8 bad extensive practice, education,andknowledge in ralationto the ,particular subject upon which his testimony is given.,rt,If the reasons given, by the expert witness are deemed reasonable and ·satisfactol'Y,. ,the court may adopt them, but, if they,are unsatisfactory, the'/conrt will. ,discard the testimony, and act'llpon Hs· own knowledge,and judgment. It always the duty of the cdurts to construe the patentsbya :referenceto the language of'the claims and an examination of the specifications and same; It satir:lfactorilyappeal'8Arom tlie evidence that Norton discovered thatjby rounding and siZing the.. caD body by extemal pressure and by centering and I!:uiding the, can head,accurately jn line with' the can body,the en:. tirffeircumieretic8.of the can body could be entered simultaneously into the caahead by forcing its/two parts squarely His invention, which; embodied this mode of operation, consisted in a device designated as 8 mold, whiqb;was adapted,as stated by appellees' counsel, to receive and encircle: the. can body and can head, to size and true up the can boay,and to register and guide the head and body together when thus held and guided by the mold. The mold was constructed of two diameters,having.i' difference between them of the thickness of the tin; the smaller one corresponding to the interior diameter of the can-head fiangetO the exterior diameter of th(:j cap body; the larger one correspond· ing;totbat of the exterior of the can-head flange. The function of the larger diameter is to give room for the annular flange of the can head outside of thtl can body in the mold, and to center the can head ae>-
NORTON ". mNSEN.
865
curately line with the pan body,&sthe head and body are forced t()o gether by the piston. The function of the smaller diameter is to size and round the can.body by external pressure. The can head and the can body are both simultaneously contained in this mold, and are brought together by a square lineal' movement, by means of a piston, so that the tight-fitting exterior head is applied with precisioQ, all sides at once, the entire circumference passing to place simultaneously. The mold is then opened to discharge the headed can by a lateral separation of its segments or parts. The first claim ofletters patent No. 267,014 reads as follows: "(1) In a machine for applying to can bodies heads fitting outside the same. the combination of a device for sizing the exterior diameter of the can body to conform to the interior diameter of the can head, and holding the same so sized While the head is applied. said siZing and holding device having its,end enlarged to fit the exterior diameter of the can head. so as to leave an annular space between it and the C&lJ body for the reception of the flange of the can head, with a device for forcing the can head into said annular space, and thereby applying the can head outside the can body, substantially as specified. " The Jensen mold, though different in form, possesses all the general features of the Norton mold, which we have mentioned, and is in all respects substantially the same in principle as the Norton mold. The mode of operation is certainly the same. True, the Jensen machine puts on only one head at a time, and the plunger or piston in his ma.chine is placed in such a manner as to move the can body towards the can head, instead of the can head towards the can body, as is the case in the Norton machine. Jensen cut 8 slot or notch in the end of his mold, so that the can head could be slipped in sideways, instead of at the e,nd of the m()ld. In the Norton machine the can body is delivered into the mold laterally or sideways, and the can head endwise with the mold, while Jensen, having cut the notch in the end of the mold for the purpose of delivering the can head in laterally 'or sidewise, delivers the can body to the mold endwise. There are other minor differences in relation to the molds that were discussed by counsel, which we deem it unnecessary to here refer to in· detail. It is sufficient to state that after a careful examination of all the testimony, the specifications and drawings, and an inspection of the molds. our conclusion is tbatthe differences pointed out between the repective molds are' mostly, formal, and do not present any substantial difference in tbe principle of the operation of the respective machines. The ,patentee in his specifications refers to the fact that changes may be made in the form without departing from the essential cbaracteristics of his invention: "I have shown duplicate chutes for the can caps and pistons at each end of the molds. It will be understood that the invention may be used to cap one end at a time. or both ends, as desired. Nor do I wish to be limited to arms, e, arranged in pairs, nor to the precise of opening the molds, nor to the precise operating mechanism therefor, because these features may ot. viously be varied in many respects. - · · I do not wish to limit myself
v,49F.no.l0-55
.particular.form ,of Qf, rnold f pr rneans?f operating SBldmold to clllmp or thecan. devices for forcing the can end upont,h,e CaD body whense'curedin Raid mold, as wi these faaturesor mat be greatly varietlwUbout departing from the priw. ciple or;. essential, characteristic of my· iuvention. It may also be.observed that the,moldll may be mounted upon;a"'ffiQiprocat\Dg slide, or an endless belt or other deviCe, inst!!w of revolVing wheel shown jn the drawings;" No one canavoidlnfrlngementsimply by means of ingenious diversities of form. and- proportion, presenting simply the appearance of something unlike the patented machine. It is well settled that a copy oftha principle or mode of operation described in the prior patent is an inof it. If. patentee's. ide!1s are found in the construction and a;rrangement of the subsequent ,device, nolbatter what may be its form, shape, or appearance, the parties making or using it are deemed appropriators of the patented inven lion,' and areinfringers. An infringement place whenever a party avails himself of the invention of the sucha variation aS,constitutes a riewdiscovery. , Judge NELSON in Blan,chard v. BeerB,2 Blatchf,':416, said that"The sure test, and one the jury should be guided by in all cases of this kind, is whether or not the defendaut's machine, Whatever mar be its form or mechanical construction, has Incorpotated withirt'it the principle, or the comlJination" or the novel ideas which constitute the improvement to be found in,the plaintiff's Qlachine. If it does, then, no matter what Dlay be it!! mechanical or itil.form, it is an infringement, an appropriation of the ideas Qf another, simply in The same learned judge in Tathamv.Le Roy, 2 Blatchf. 486, said: "Formal changes are nothlnK,-mere mechanical changes are nothing; all these may be Qlade outside of the descri,ption to be found, in the patent, andyet the nlachine, at'terlt has been thus changed in its construction, is stili the machine. of the patent"e, becau,se it contains his invention, the fruits of his mind,. andembod!eB the discovery which he has brought into existence and put into practical operation." ,..... ' .. See,' also, Winans v. Denmead, 15 How. 343; PoiJ,er v. Schenck,'l Biss. 518. . " Claim, 2 of Ule Norton patent No. 267,014 reads as follows: '" "In a machine for ,applying to canoodles heads fitting'outside the same. thec()mbination of,a.cihuteordevice fQrdelivering. the can bodies to the <:hine, with a movable device for clamping the can bodY and sizing its exterior diameter"';o conform to the intt'rior diameter of the can head, said claQlplng and sizing device haVing it.s end or mouth enlarged 'to leave an annular space between the same and the can body clamped therein for the reception of the flange ()fthe head,a chute or device for delivering the can heads to the ma. chine,anda device forf()rcitlg the,cani,head into said annular space at the said clampingalld Sizing device,llubstantiallyas specified." The elements contained in this claim, in addition to claim 1, are a chute or device for delivering the can heads to the machine, and a device f()rforcing the can· head into the annular space at the end of theiclamping 'and sizing device. These elements are not limitedeithet by the claim or thespecificatiorls of the patent to a can-head feed chute, but C9ver any equivalent or form of feed device that is suitable for conveying
NORTO:l(
'V:
JENSEN.
867
the can head to the'Inttchine. In the Norton machine the arrimgement is such that the can bodies will move along by their own gravity. The Jensen machine contains a chute ordevice for delivering the ,can bodies to the machine arranged in such a manner that the can bodies will not themselves by their own gravity, but it contains a supplemental device for moving the oon bodies along the same. The essential fact is the existence of the chute or device in the Jensen patent for delivering the can ,bodies to the machine. This pusher found in the Jebsen machine is simply an addition to the can-head feedchrite of the Norton patent. As Norton was the first inventor to produce a machine having the combination with the can mold, having a recess or enlarged diameter at its end, and the piston with a can-body feed device, and a can-head feed device, he is certainly entitled to claim it in its entirety. The witness Dayton testifies that the Jensen machine employs the same means, to-wit: ..A chute for delivering the can heads, and a strictly equivalent m'eans foJ' delivering the can bodies. The traveling belt and a rotary or reciprocating feeder, both of which are used by Jensen to carry in the can bodies, have long been well known for such purposes, and seem to have been selt'ct,ed by Jensen from a wide range of familiar mechanisms adapted to set on the can while standing in an upright position. The addition of the feed fingers at the lower end of the can-head chute in the Jensen nlachine, for pushing the can heads into place with resppct to the clamp UloId, was also within the range of well-known mechanical means tor. such purposes." Claims 6 and 7 of the Norton & Hodgson patent No. 274,363, for a new and useful improvement in can-ending machines, read as follows: "(6) The combination of the can-body clamping devicE' or mold with a chute for the can heads, a reciprocatinl{ hpad or piston at the base of said chute lor Rutomatically feeding the can h.-ads to the mouth of the mold and applying the same to the can body, and a spring pin or devke for holding the can bead in a position at the mouth of the mold, SUbstantially as specified. (7) The combination of the delh'ery chute Wheel having half molds upon its periphery, recIprocating half mold, chute for the can heads, piston for applying the same to the can bodies, and discharging chute, substantially a8 specified. " The spring device mentioned in claim 6 constitut.es an importl11'1t element in the machine. There is some controversy with reference to its use in the Jensen machine. It is not described in the specifications or drawings of the Jensen patent, andJenSEln, in his testimony, denies that he now uses it or any equivalent device. .Norton testifies that it was in the Jensen machine which he examined. Jensen admits that it was placed il1 a few of his machines, but claims that when used, it was for an entirely different purpose from that in the Norton & Hodgson rnauhine. The action of the circuit court in finding an .infringement of claim.6 is justified by the testimony of appellees' witnesses to the effect that the spring pin or device in appellees' machine and in the .Jensen machine, when used, performs substantially the same functions, and operates to hold the can head in position at the mouth of the mold,
868
REPORTER, vol. 49.
and is combined in both machines with the mold, piston, and can-head chute. 'The action of the court in' finding an infringement of claim 7 is justified by testimony showing that t.he tepiprocating and revolving bar, F; having the fingers, H,.as shown in Fig·. 30f the Jensen patent, is an equivalent for the can-body feeding wheel of the Norton & Hodgson patent. .The testimony shows that in both machines there is a reciprocating half m.old mounted on the fra.me of the machine. Appellants contend that,'inasmuoh as the claims of this patent are for improvements upon combillation claims, the patentees should be restricted to the particular form of their improvements, and that they are not entitledtp ,invoke the doctrine of equivalents. This same contention is relied upon as f1.nanswer to the charge of infringement to most of the claims in all of the subsequent patents. Mr. Justice CLIFFORD, in delivering the opinion of the court in Imhaeuser v. Bue'rk, 101 U. S. 655, clearly stateS the principles of law upon this subject, as follows: "Equivalents may be claimed by a Jiatentee of an invention consisting ofa combination of eM elements or ingredients',as well as of any otper patented improvement, provided the arrangement of the parts composing the invention is new, and will produce a new and useful result. Such a patentee maydoubtlesS invoke the'doctrine of equivalents, as against an infringer of the patent: but'the term ·eqllivalent,' as applied to such an invention, is special in its signification, and'somewhat different from what is meant when the term is applied to an invention consisting of a new device or an entirely new machine." " In explanation of the term "equivalent," after citing illustrations, he says: "Patentees of an invention. consisting merely of a comhination of old ingredients are entitled to equivalents, by which is meant that the patent in respect to each of the respective ingredients comprising the invention covers every otheringredient )Vhich,in the same arrangement of tbe parts, will perform the same functio'n; if it was well known as a proper substitute for the one described in the specification at. the .date of the patent, Hence it follows that a party wb!> merely substitutes another old ingredient for one of the Ingredients of the patente\IcolObinatlon is an infringer if the substitute performs the same function as the ingredient for which it is so substituted, and it appears that it was well known at tbe date of the patent that it was adaptable to that use." The mechanical substitute "may perform some other functions, but this does not prevent it from being an infringement." Norton v. Can 00.,
45 Fed. Rep. 638. , In Carter v. Baker, 1 Sawy. 516, Judge SAWYER defines an "equiva-
lent" in the following language: "When, in mechanics, one device does a particular tbing, or accomplishes 8 particUlar result, every other device known and used in mechanics, whicb Ilkillflll and experienced workmen know will produce the same result, or do the llaIne particular thing, is a known mechani<lal substitute for the first device mentioned for doing that thing or' accomplishing that result, altbough tbe first device may never before have been detachea from its work, and the Ilecond one put in its Plac('l. Ris sufficient to constitute known mechanical substitutes that, when askiI,ltul mechanic sees one device doing a particular
NORTON V. JENSEN.
869
thing, be knows the other whose use he Is acquainted with, will do the same thing. " . See, also, Seymour v. Osborne, 11 Wall. 556; Machine Co. v. Murphy, 97 U. S. 125; Wiclce v. Ostrum, 103 U. 8.469· .. Keeping in view these principles Of law, and also bearing in mind that there can be no infringement of a combination claim unless every element, or a mechanical equivalent of an omitted element, is used, we proceed to a consideration of the claims in the subsequent patents. Claim 14 of the Norton & Hodgson patent No. 294,065, for a new and useful improvement in can-ending and seaming machines, reads as follows: . , "(14) The combination, with a can.body clamping mold, of a chute or device.for delivering the can bodies thereto, a chute or device for the can beads at the mouth of said mold, mechanism for applying the can head to the can body, and mechanism for bending and compressing into a seam the 1langes uniting the can head and body, substantially as specified." This patent shows the first combined can-heading and crimping machine which operated to automatically apply the can heads to the can bodies and to crimp the same. The patentees are, therefore, certainly entitled to claim the combination of the devices which enabled them to accomplish these purposes, as set forth in the claim under consideration. The can-heading device in this patentis substantially the same as ill appellees'other patented machines, with the mechanical addition iug for crimping the heads while the can is still held in the clamping mold. Tbecan-body chute is also substantially the same as in the other patents. The drawings Qccompanying this patent have the squeezing jaw form of crimper. The Jensen machine employs the rotary form, and for this reason, among others, it is claimed that it does not infringe claim 14; but the testimony of both parties shows that both forms ofcrimpers are old and well known, and could readily be used one for the other. As the substituted device in the Jensen machine is well-known mechanical equivalent of the device used in this patent, the combination remains the same uuder the law, and the use of the substituted device must be treated as an infringement of the prior ttJa'" chine. Claim 1 of the Jordan patent No. 307,197, for an improvement in can-ending machines for automatically putting the ends of sheet-metal cans onto the bodies, reads as follows: "(1) In a machine for automatically putting the ends of sheet-metal cans on the bodies, a segmental clamp-chuck, and mounted, to be capable of performing the following operations: First, to receiVe and retain a can end; second, to grasp .and hold the body of the can in a proper position; third, to force the end of the can on the body Of the same; fourth, to release the end and body of the can when these operations are completed, combined with suitable means for actuating the same to effect these operations." Appellants earnestly argue that this claim has not been infringed by them. They contend that, whatever views may be entertained as to the claims of certain other patents, this· claim for 1he segmental clamp-
870
FEDERAL REl'ORTER,
·chuck or 'D101d'niust belitriited to the partieuJar form.
improvement in t):1e machine as shown in the drawings accompariyil'lg the pat1lpt;tl:).at,appellees this claitn, invoke .. the .doctrine of equivalents; that the maMio\:l itself hltS nev.er been used, and is imprinciple of the Jensen, machine is; in every respect, ElBsentially,differentfrom this patent, and does not, in any respect,a(lQomplish its.wprk,by thesam,8 mode of operation; that the elemeo,ts of each machilleltre essentially different, and the mode of operatiQnclearlydistinct·. >A: n1ajority of the members oLthis court are of opiniQn that this, claitnhas not been infringed, for the, reasons given by them in a separate opinion. I shall therelore, with reference to this expreSS views. Xhe contention of appellants with. reference to the .limitation of this claim.isdil'ected, to some extent, to the particular method of mounting the mold as shown and.·described in theJordanpatertt, by which the mold is made to swing first to one side and then to the other, so that the can .heads and can bodies may be delivered into it. This particular feature of the Jordan patent, as to .the vertically moving and horizontally swinging manner of mounting the mold, is covered by claims 2 and 3 of the Jqrdan patent,which are i)otclaimed to hM'Q.been infringed by the Jensen machina., The essentil'l1 improvement of the Jordan patent covered by claimlis in the construction of the mold itself. This claim, it ,will be observed, is not limited to any particula.r method of mounting the mold. The claim is for "a segmental clamp-chuck, and mounted, to be capable of performing the following operation," etc. By an examination of the specifications, it will also be seen that the patentee did not limit himself to the particular method of mounting the mold, as shown in the drawings accompanying the patent: "At pi'psent, my inve.nlion relates to and Is employed in a machine, the features of whl.ch are fully shown in .tneaccompanJingdrawings. and de8cribed In this specification, but Is adaptell to ami can be operated in a press or machineof construction." Under the rules already announced, it is clear to my mind that the patentee is e.ntitled to.the doctrine of equivalents. Norton testified that he had one of the Jordan machines in one of his factories fitted up for several sizes of cans; that,it was not .at present running, but that it had run and successful and operating machine. This testimony, in my opinion, disposesofthe objections raised as to the alleged impracticability of the machine. . What is the proper to be..given to the patents under. consideration? Do the molds'of each machine, notwithstanding their dW ference in construction, perform substantially the same function, in substantially the surne way, to obtain the Sl1me result, or do they perform different functions, or operate in a diff,¢tent way, producing substantially 8 different result? In Machine Co. v. Murphy, 8upra, as well as in the other cases heretofore quoted from, or referred to, the supreme court of the United States tery clearly lays down the rule by which all courts should be governed in determining questi6n:s i of this character. It is there deI
NORTON f1. JENSlm.
871
elared that in all exCept where form is of the essence of theinvention. it is not"Safe to give muchbeed to the fact that the corresponding device in two machines, organized to accomplish the same result, is different in shape or form the one from ,the other, as it is necessary in every such .Investigation to look at the mode of or the way the· device works, and at tIJe result, as well as at the means by which the lnquiriesof this kind are oftl-'D attendl'd with dilliculty, but if special attention is given to such portions of a given device as really does the work, so as Dot to give undue importance to other parts of the same which are only used as a con\'enient mode of constructing the entire device, the difficulty attending the investigation will be greatly diminished, if not entirely overcome.. Oahoon v. Ring, 1 Cliff. 620. concur that the 8ubstantiaUll)uivalent of Ii thing, in the sense, of the patent law, lsthe same as the thing itself; so that if two devices do the same work in substantially the same way, and aCcomplish stantially the same result, they arll the same, even though different in name, form, or shape. Curt. Pat. 310." Jensen, after speaking in relation to the differepce in the mounting of, the respectiVe !polds, w."ich has. been already npti,ced, that the can mold in his machine also differs fromtbe., segmental clampchuck in the Jordan machine, ill this: that it is so constructed that it has one passage for receiving the can head, and another passage for receivingthe can body, so that the can head may be entered therein, while the can body is shaped and rpunded,guided and forced, into the can head with one an,a the same stroke,without any per(ornuUlce whatever with the cnnmQld, as all these operations take place while the can mold is closed and at rest, and that his 1Uachine differs from the combination in claim 1"of the Jordan patent, in having omitted the segmental clampchuck with but one passage. These differences, in addition to others previously noticed, are reliedupon to establish the 'fact that there has been no of this claim. ., . The testimony upon th&part of appellees is very lengthy, and in some respects materially in conflict with the testimony of Jensen. From an examination of all the tellthnony bearing upon the question under consideration, and the principles of law applicable thereto, my conclusion is that Jensen obtained the idea and copied the feature of feeding or inserting the' can head in the recessed mouth of themol<1before the can body is inserted in the mo1d,. and of forcing the body endwise or )ongitudinally into the mold, alter the mold has been closed to support the can head in the recess of the mold, from the Jordan patent. That he likewise copied the feature of beveling or tapering the lower mouth of the mold so as to facilitate tbe endwise insertion of the can body in its !'Iizing or. clamping mold. That these features of the machine are covered by the claim under 'consideration,and that the element of this claim is found in the Jensen machine. That, although the clamp-chuck in .the Jordan patent is divided into six parts or segments, and the moId in the Jensen machine is only divided into two parts, the molds in both machines open and close substantially in the same manner and for substantially the purpose. 'I'hat the purpose of the Jensen mold,
812
FEDERAL REPORTER,vOl.
as weRasthe segmental clamp-chuck in the Jordan patent, is-First, to hold and retain the can head in the- recess of the mold; ,qecond, to grasp .111> the can body; third, to fQrce the can body longitudinally into tiqd the mold, and apply the head to it; and, fourth, to release the end and body of the can. That the Jensen, mold is specially adapted to accomplish thetl.e plirposes, and is combined with suitable mechanism for operatlng it, so as to bring about the results above mentioned; and that, notwithstanding the differences in the mode of constrnction, the dissimilar cont).'ivancesalld devices for actuating the parts in the two machines, and the improvements in the Jensen machine, as testified to by the respective witnesses, and pointed out by counsel in the oral argument, it contains the invention of Jordan as set forth in claim 1, and therefore, under the principles of the law as hereinbefore announced, infringes the " same. ·... Claims 1,2,8,8, and 9 of the Norton &Hodgson patent No. 307,491, for a new and useful improvement in can-ending machines, read as follows: . a reciprocating piston or device for applying the head or cover thereto while held in such inclined position, substantially as specified. (2) The combina"(1) Combination of an inclined clamp or mold for holding the can, with
tionpf an inclined clamp or mold for bolding the can with a plate or support for the bott()m of the can to rest against. and a reciprocating piston or device for forcing the head upon the can. substantially as specified. (3) The combInation of an inclined clamp or mold with a plate or support at the lOWEll' end of said mold, an inclined chute for deli v-ering the can heads at the mouths of said mold. and a reciprocating piston for applying said heads to the can. substantially as specified.. (8) The combination of an inclined device for holding the can with an chute for dEllivering the cans theretQ in an inclined position, and a, device fQr applying the cover or head to the can While held in such InclinM as (9) '£he combination of an Inclined deVice for holding the can with an inclined chute fot delivering the cans thereto in an inclined position. and a device for applying a cover or head tothe can while held in such inclined position. and a spirally twisted or curved discharge chute to recei ve the can in an inclined position, 8J;ld deliver iUn a horizontal position to the carrier, substantially as spec. . Iii
The maohine, described in this patent is substantially the same as the machine in patent No. 274,363, withthe exception that it is so arranged as to hold. the. can at an incline instead of horizontally, for the purpose of operating on filled cans. It will be noticed that each of the claims refers to the incline. This patent, with"these improvements, stands at the head of the art, as providing for the first machine to automatically put the final head upon a filled can. The essentials of a machine to accomplish this purpose are-Jilir8t, some means for taking the can into the machine and into the mold in such an upright position as that the contents of the can will be retained; second, a mold for applying the head to the can while in this position; and, third, some suitable means for discharging the can after it is headed, which will cause. it to turn down into the proper position to roll· through' the with the head applied underlpost. These elements are solder
873
found' in both machines. The only point seriously urged against the infringement of the several claims in this patent is that the Jensen ma.chine holds the can at an angle of 90 deg., while in the machine described in this patent the can is held at a less angle. With reference to this patent, a majority of the. members are of opinion that the claims thereof have not been infringed. My individual views, briefly expressed, are that, if the inclination is sufficient to prevent the spilling orthe contents of the can, it does not make any essential difference in what particular angle it is employed. If the angle employed in the Norton and Hodgson machine safely accomplishes the result of preventing the spilling of the contents of the can,-and the testimony of appellees' wit· n,esses is that it does,-then it seems to me clear that appellants cannot avoid infringement upon the ground that their machine operated at a greater angle. Claims 1, 2, 6,7,11,12, and 13 in the Jordan patent No. 322,060, for a new and useful invention in heading machines for automatically, applying the heads on the bodies of sheet-metal cans, read as follows: "(1) In a can-heading machine. the combination, with two reciprocating part molds. of a reciprocating device for conveying the can body to a position between ,'laid part molds, and holding it there while said molds move ward to clamp the can body, substantially as specified. (2) Tbe combination. with two part molds. of a reciprocating device for covering the can body to a position between said part molds. and holding it there until clamped thereby, substantially as specified. (6) The combfnatiolJ. with a pair of molds. for clamping the can body, of a plunger head and a slide to adjust the can head opposite the mold. snbstantially as specified. (7) The combination, with a pair of can·body clamping molds. of a plunger head, R reCiprocating slide to move the can head opposite ,the mold. and a chute for delivering the can heads' to said slid!'. substantially as specified. (11) The combination, with a pair of can-body molds, of a chute for tbe can heads. a slide for movingthil can head opposite said molds, and a lever and can for operating said slide. sUbstantially as specified. (12) The combination, with two part molds. of a can-head chute. a slide to move the can head opposite the mold. a lever and can for operating said slide. a pJunger and plunger head, and a can and lever for operating said plunger. substantially as specified. (13) The combination, with two part molds, of a reciprocating' conveyer to convey to and hold the can body between said molds, and a can and lever for reciprocating said conveyer, substantially as specified." This patent is simply for an iIl(provement upon the original Norton machine. The mold is substantially the same in both patents, the principal difference between the patents being in the manner of mounting the mold, and in feeding the bodies and heads of the cans to the mold. If we are correct in the conclusions reached as to the infringement of the other patents, it necessarily follows that these claims have been infringed, and it would serve no useful purpose to again discuss the points, and reiterate the reasons for our conclusion. In my opinion, the decree of the circuit court should be affirmed. HANFORD, District Judge, (concurring.) The opinion in this case, written by Judge HAWLEY, is concurred in by Judge MORROW and my-
874-
nDERALREPORTER, vol.
self, and adopw.di all!the: opinion of the court as to the principal in"en. tion for putting on the ends of fruit and other cans," and; the eeveral improvements and combinations of the parts, of said 'machirie'\vith additional deVices for doing all the work of bring. inK together cylindrieal,canbodies, :and the disks or caps for closing the ends thereof, ana joining them by' series of harmonious automatic .the several patents issued to E.Norton, Norton movements, & Hodgson, and rEdmund Jordan, respectively, and numbered 267,· 014,274,363, 294,065, and 322,060. We are of the opinion, how· ever, tMt for some kinds of work the .machine contri"edby the appellant Jensen is an1improvement upon any machine previously constructed, and a very useful invention; and that it is not an infringement of any rights of the appellees under the patent issued to Edmund Jordan, No. 307,197, or the Norton & Hodgson patent No. 307,491. Whil" we are willing to protect ,the complainants to the full extent of their lawful patent laws, we hll.ve· not failed to notice that, by his ,claims under· own testimony, Mr. Norton has manifested a disposition to restrict the :use of his patented Ina<lhinery to the heading of cans D;lanufactured by :aparticular corporation, thereby imposing a grievous burden upon imlportant industtial enterprises, from' which they .cannot escape unless ·other machinery can be lawfully empl'oyed. For this reason we are not linclined to enlarge their rights by any stra.ined construction of the law. their fayor facts not ,clearly proven by legal evi,nor by !dence. We hold that the Jordan "can-ending machine" patent No. 1307,197, by i'easo,n of being cumbersome and slow in its operations, is :not a practicable machinafor putting heads on tin 'callS of the size reqtiired for use in putting up fruits, yegetables, meats, fish, and similar ImaterialS forindividual and family uSe; and ther,efore it cannot be injfringed by theus!3 ola different machine, which wjll do such workwell, at a reasonable cost. ' It is. true that Mr. Norton hastestified that a Jor. :dan machine set up in his factory has been operated successfully. But ,this is only the conc1usi,on of an interested witness. It states no particulars as to the time dtirlng which" operation of themachine continued, nor the ilumber of cans, whether one or a dozen or more, that were· successfully operated. Qpon; and he does not say whether was or was not the or not the expense attending the successful caUSe of discontinuing and.. besides this, same witness admits that this machine is too slow in its 'operation to be profitably employed in heading cans of the size required in the largest numbers. The most :that he claims for it is that it is a splendid working machine for put· iting covers on gallon or other large cans, a class of work for which, so far as the evidence discloses the facts, the Jensen machine has not been 'used.' Mr. Jordan is not the inventor of the mold or discoverer of the :principle of the segmentalc1amp described in the specifications for his patent. His invention consists of a new use of these appliances in com.bination with others to produce certain results. This is a sufficient reason for limiting the patent to thepanicular use mentioned in the specifications. The" can-ending machine "described in patent No. 307,491 I
is simply the machine covered by the patents Nos. 267,014, 274,363, and 322,060, tilted up, by being beddednpon a table the top of which is an inclined plane of about 45 deg. from an horizontal, combined with a spirally twisted discharge chute, so constructed as to receive cans in the inclined position in which they are held by the clamp when the heads are applied, and deliver the same in an horizontal position. The object of setting the machine in such inclined position is to make it operate upon filled (Jans. It is obvious that to move and operate upon well·'6lled cans, especially of liquid or semi-liquid substances, the CRns must be in true vertical positions, and the movement must be so free from jarring or concussion as to not disturb the contents; whereas one of the essentials of the "can-ending machine" is a carrier or feeding chute so constructed as to bring the cnns into such a position that, by force of gravity, they will drop into the half molds upon the periphery of the intermittently revolving wheel. The machine will not operate upon filled cans in an upright position without some additional device or substitute for gravity to force the cans into the revolving half molds, for the clamp or mold has no attraction for the cans or means of seizing them without the aid of an extraneous force. The contrivance of setting the can-ending machine in an inclined position, and the adjustchutes to work with it in that position, ment olthe feed and can scarcely be considered to involve the exercise of inventive genius, or anything more than ordinary mechanical skill; and being, at best, but partially. successful in the accomplishments of its object, we cannot, under the law as we understand it, hold that any rights of the patentees have been infringed by the Jensen machine, which the evidence shows to be in its operation upon fillt:d cans a complete success. The patent laws.were not designed lor the benefit of the man who attempts to originate a useful thing, but rather to reward the one who first achieves suecess in the production of it. It would be a perversion of the law to hold a machine which can do certain kinds of work to be an infringement of a patent for a different machine, which cannot do the same work. The decree of the circuit court should be so modified lIS to declare that the patents NOB. 307,197 and 307,4\:H are not infringed by use of the Jensen machine, and in all otber respects afiirmed, and it is 80 ordered. Coats of the appeal are awarded to Ule alJlJWll&uta.
J'EDEBAL.
KINSMAN V.Cs:INA MUT. INS. CO. (lXBWIct Court, D; Mas8achmetts. IL\BIMI l'BBlJlUlIIOB-INBURABLIll INTEREST-TOTAL
December. 7, 1891.
Loss. it appeared that libelant had an insurable interest in a vessel by reason of advances exceeding the amount of the policy sued on, and that the vessel had sustained damage from perila of the sea, and' could not be made seaworthy except at an expense exceeding .her value when repairE'd. thus a total loss, within the meaning of the policy, h.eZcl, that libelant was entitled to recover against the insurance company the amount' of the polioy.
In Admiralty. Libel to recover on policy of marine insurance. E'/!-gene P. Carver, for libelant. John, D. Bryam, for respondent. NELBON,Distdct Judge. The libelant" as managing owner, had, at the date of ,the, ,policy of insurance, an insurable interestin the barque Elba White, by reason of his advances made on acco,unt of the vessel. TheprQtest"ofthe master and mate and the surveyor's certificates are c.ompetentevidence in the case, and, with the testimony of Darling, are sufficient to :prove that the injury suffered by the Eliza White from perils·Qf the. sea,' previous to her arrival at, Nassau, a port of distress, were so great that she could not be repaired so as to make her a seaworthy vessel, except at an expense exceeding her value when repaired, and this constituted a case of actual total loss, within the meaning of the policy of insurance. The testimony of the libelant is sufficient to prove that his advances .exceeded $1,000, the amount insured by the policy, and that the defendant had notice of the loss in September; 1883, and waived all further proof of the loss. Decree for the libelant for $1,000, and interest from December 1, 1883, and costs.
THE FROIlNlm. GULLICKSEN 11. CHICORA FERTILIZER
Co. fit ale
CDi8trIct Court. D. South Carolina. February 23, 1899.) II'UIG!lT-CABGO "INTAKEN"-AlIfOUNT-INTENT OF PARTIE&.
Where a charter-party provides for a certain rate of freight on "about 1,500 tons" of Iron ore "Intaken, "-the original word "delivered," in the charter-party, being stricken out, and the word "intaken" written in,-and the master, at the port 01 loading, being without opportunity of weighing, demanded 1.575 tons, which amount was promised him, and a bill of lading made out therefor, and assurance given the master that he had that amount, and the ship, after a safe voyage without incident, delivered only 1,500 tons, no question of short delivery being raised, but only the question whether freight should be paid on 11575 tons or on the amount delivered, h.eld\ that the parties had agreed at the port 01 loading as to the number of tons on whicn freight should be paid, viz., 1,575 tons.
In Admiralty.
Libel to recover balance of freight.