Opinion of the Court.

laden on board of the vessel, telegraphed to some of the best known dealers in England and France for quotations and offers. This manifestly was under the view that the 9635 quarters were to be carried by the vessel, and under the charter-party. But the best offer was a sum which they were unwilling to accept, and they then notified De Wolf & Hammond that they would sell the cargo on board of the vessel, at the shipper's risk, in the port of New Orleans, with the privilege of the charter. They thus still adhered to the charter as a subsisting charter with themselves. But, before they sold the cargo, and on the 6th of July, De Wolf & Hammond notified them (Gomila & Co.) that they (De Wolf & Hammond) would take out coal and make room for the balance of the cargo, and that the vessel would be made ready by the 7th of July. Gomila & Co. refused this proposal, and sold the cargo on the 7th of July. They did this wrongfully. Negotiations in regard to the matter had continued from and including the 30th of June, when the loading of the 9635 quarters had been completed, to and including the 5th of July, not only with the assent of Gomila & Co., but with their active co-operation. By the 6th of July, De Wolf & Hammond had satisfied themselves that by a rearrangement of the stowage and by taking out some of the coal and water, room could be made for more cargo, sufficient to make up the 10,000 quarters. Under the circumstances, and in view of the facts before stated, that there was no day specified in the charter-party for the commencement or completion of the loading, and no cancelling date named in the charter-party, there was no unreasonable delay in the action of the respondents or their agents. Notwithstanding this offer on the part of the vessel, Gomila & Co., on the 7th of July, sold the 9635 quarters on board of the vessel at public auction, with privilege of the charter, to A. Carrière & Sons, for $29,622.84, which was not quite 36 cents per bushel. The corn afterwards came into the hands of Forestier & Co., by a repurchase, at the price of $40,422.00, which was at the rate of not quite 49 cents per bushel.

On the 13th of July, the stowage of the vessel having been in the meantime rearranged, and a large quantity of coal and

Opinion of the Court.

water, the latter from the ballast tanks, having been taken out, she was again tendered to Gomila & Co., and to Forestier & Co., and the balance of the cargo was demanded. This was furnished by J. B. Camors & Co., and enough more corn was taken on board to make over 10,000 quarters, with which the vessel sailed on the 18th of July for her original destination. She arrived safely and delivered her cargo.

Upon the foregoing facts we are unable to concur in the conclusions of law arrived at by the Circuit Court. The vessel did carry 10,000 quarters of corn, of 480 pounds. With the exception of 365 quarters, or 3126 bushels, out of 10,000 quarters, or 85,708 bushels, this corn was the identical corn laden on board of the vessel by Gomila & Co. The only stipulation in the charter-party with Gomila & Co. which they insisted upon having inserted was, therefore, complied with, and complied with in a reasonable time, as we have seen, in the absence of all provisions in the charter-party with Gomila & Co. that the vessel should commence loading by a certain day, or complete loading by a certain day, or that the cargo should be shipped from New Orleans by a certain day; and in the absence of any written notice from the master to the libellants, as provided in the charter-party, as to the readiness of the vessel to receive cargo, in order to set running the lay days for loading; and in the absence of any notice by the libellants to De Wolf & Hammond that they considered the charter-party at an end because of a breach of the guarantee that the vessel should carry not less than 10,000 quarters, of 480 pounds, prior to the giving of the notice by De Wolf & Hammond to Gomila & Co., on the 6th of July, that room would be made for the balance of the 10,000 quarters, or prior to the sale of the cargo at auction by Gomila & Co., on the 7th of July. Not before such sale on that day, with privilege of the charter, did Gomila & Co. terminate their interest under the charter; and by such action, under the circumstances, they failed to keep the charter-party on their part, while the respondents had not at that time failed to perform it on their part, and afterwards went on and performed it. If Gomila & Co. had not made the auction sale, of the 7th of July, they might themselves, as clearly appears,

Syllabus.

have afterwards furnished the 365 quarters, and obtained all they were entitled to under their charter-party. If they lost anything by reason of their failure to carry out their contract with Forestier & Co., it was not the fault of the respondents in failing to observe any stipulation on their part in the charterparty with Gomila & Co., but it was due to the fact that Gomila & Co., accepted a charter-party which did not contain such provisions as to time and as to cancellation as would have enabled them to hold the respondents to the same terms, as to the time of shipping the cargo, which were provided for in the contract between Gomila & Co. and Forestier & Co. Those provisions were industriously left out of the charterparty after both of the parties who were to make it had had their attention called to the terms of the contract of sale between Gomila & Co. and Forestier & Co. That being so, Gomila & Co. cannot have the same benefit as if those provisions had been inserted. The court is bound to give effect to the stipulations of the contract, but not to provisions which the parties deliberately omitted to insert, after attention had been directed to them. This ruling is in harmony with the views laid down in Norrington v. Wright, 115 U. S. 188, and in Filley v. Pope, 115 U. S. 213.

In accordance with these views, the decree of the Circuit Court is reversed, and the case is remanded to that court with a direction to enter a decree dismissing the libel, with costs to the respondents in the District Court and in the Circuit Court.

CRESCENT BREWING CO. v. GOTTFRIED.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA.

No. 35. Argued October 19, 22, 23, 1888. - Decided November 5, 1888.

Claim 1 of letters patent No. 42,580, granted May 3d, 1864, to J. F. T. Holbeck and Matthew Gottfried, for an "improved mode of pitching barrels," namely, "The application of heated air under blast to the interior

Statement of the Case,

of casks by means substantially as described, and for the purposes set forth," is a claim to an apparatus, and is void for want of novelty.

The process carried on by means of the apparatus was not new, as a process.

The case of Lawther v. Hamilton, 124 U. S. 1, considered and explained. In respect to the apparatus, the patentees, at most, merely applied an old apparatus to a new use.

Claim 2 of the patent held not to have been infringed.

THIS WAS A SUIT IN EQUITY, brought in March, 1881, in the Circuit Court of the United States for the District of Indiana, by Matthew Gottfried against the Crescent Brewing Company, founded on the alleged infringement by the defendant of letters patent No. 42,580, granted May 3d, 1864, to J. F. T. Holbeck and Matthew Gottfried, for an "improved mode of pitching barrels."

The specification, claims, and drawings of the patent were as follows:

"Be it known that we, J. F. Th. Holbeck and Matthew Gottfried, both of Chicago, county of Cook, and State of Illinois, have invented a new and useful improvement in pitching barrels, etc.; and we do hereby declare that the following is a full, clear, and exact description thereof, reference being had to the accompanying drawings, making a part of this specification, in which

"Figure 1 is a longitudinal section taken in a vertical plane through the centre of the apparatus which we employ in the operation of pitching barrels, etc. Figure 2 is a horizontal section taken in the course indicated by red line x x in figure 1. Figures 3 and 4 are views of the tabular closing-guard which is applied to the barrels or casks in the operation of heating them. Similar letters of reference indicate corresponding parts in the several figures.

"Before filling casks with spirituous or volatile liquids, it is necessary to render the casks impervious to air, the most common and probably the cheapest method of doing which has been to flow melted pitch or other substance into the pores and joints of the casks while they are in a heated state; but the difficulties hitherto attending this process arise in consequence of a want of some economical means of heating the

Statement of the Case.

casks without burning or seriously charring their inside surfaces.

"My invention has for its object the preparation of casks for receiving pitch or other melted substance suited to the object in view, by subjecting said casks to blasts of highly heated air by means of an apparatus which will be hereinafter described. To enable others skilled in the art to understand our invention, we will describe its construction and operation. "In the accompanying drawings we have represented one mode of carrying our invention into effect, which consists of a furnace constructed of masonry, as represented by A, figures 1 and 2. This furnace is of a rectangular form, and has a vertical central opening, A', through it. Near the base of the furnace is a grate, a, beneath which is the ash-pit, b, and above which is a fire-chamber, c, which is covered by a lid, c', as shown in figure 1.

"An opening, d, is made through the side of furnace A, which forms an external communication with an internal chamber, A', either below the grate or above this grate, as shown in figure 1. This opening, d, communicates with a fancase, B, arranged outside of the furnace, and furnished with a series of rotary wings or fans, e e, which may be rotated by any convenient motive power.

"The fans e e create a blast of air through the furnacechamber A'; this air, rushing through the opening d and through the fire which is built upon the grate a, is allowed to escape through the passage d' near the top of the furnace.

"Between this passage d' and the cask which it is desired to heat I form a communication by means of a detachable pipe, E, which connects with a short pipe, E', that is secured around the passage d', as shown in figures 1 and 2.

"The removable pipe E may be made conical, as represented, so that the opening through the head of the cask D need not be very large, and this pipe is provided with a bow handle, g, by means of which the pipe can be removed or adjusted in place without liability of burning the hands. The contracted end of pipe E enters a short tube, h, which passes through and is suitably affixed to a covering plate, i, that is