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As appears from his report, the master ascertained the profits which the complainant would have made on the sale of the two infringing machines, and declined to proceed further, holding that the right of recovery must be limited to these profits. What the master has termed profits are in fact the loss or damages sustained by the complainant. In other words, the master has ascertained the complainant's damages, and has failed to take and report the profits which have accrued to the defendant from the use of the two infringing machines. The master's finding was correct so far as it proceeded on the theory that the profits the complainant would have made on the sale of the infringing machines was the measure of complainant's damages, in analogy to established royalties or established license fees, which have commonly been held to be the measure of such damages. But the master went further, and ruled that these profits were not only the measure of complainant's damages, but of defendant's profits. In so ruling I think the master lost sight of the fundamental distinction between defendant's profits and complainant's damages. The former are "the profits, gains, savings, and advantages" which have accrued to the defendant by the use of the infringing machines, and which are recoverable on the principle that equity will not permit a wrongdoer to profit by his own wrong, while the latter are the actual damages sustained by the complainant, which are recoverable on the principle of compensation for the loss he has suffered by the wrongful act of the defendant.

It is clear, therefore, that defendant's profits and complainant's damages are distinct from and independent of each other, that they are governed by different principles, and that one cannot be said to be the measure of the other in an accounting under section 4921. The exceptions, so far as they relate to this ruling of the master, are sustained; and the case is referred back to the master for further proceedings in accordance with this opinion.

NATIONAL CASKET CO. v. STOLTZ.

(Circuit Court, S. D. New. York. May 22, 1907.)

PATENTS INVENTION-FACE PLATE FOR CASKETS.

The Hamilton patent, No. 619,567, for a face plate for burial caskets, consisting of a stretched sheet of transparent nonbrittle gauze fabric, involves much more than the substitution of such fabric for glass, and, in view of the novelty, great utility, and commercial success of the device, must be held to disclose invention; also held infringed.

[Ed. Note.-Utility, extent of use, and commercial success as evidence of invention, see note to Doig v. Morgan Mach. Co., 59 C. C. A. 620.]

In Equity. Suit to restrain alleged infringement of United States letters patent No. 619,567, dated February 14, 1899, to William Hamilton for "face-plate for burial-caskets."

See 127 Fed. 158.

Warfield & Duell (C. H. Duell, Frederic P. Warfield, and Holland S. Duell, of counsel), for complainant.

Briesen & Knauth (Hans v. Briesen, of counsel), for defendant.

RAY, District Judge. The claim of the patent in suit reads as follows:

"The combination with a burial-casket, of a face-plate comprising a stretched sheet of transparent nonbrittle gauze fabric."

In the specifications the patentee says:

"My invention relates to face-plates for burial-caskets and is designed to do away with the difficulties arising from the use of glass plates or panels commonly used therein. Where these glass panels are employed they are liable to become broken in the course of transportation of the casket and in falling deface the features of the corpse. Moreover, when such caskets are exhumed, it is often found that the swelling of the wood of which the cover is composed has broken the glass panel. My invention overcomes these difficulties; and it consists in providing the casket with a frame over which is stretched a strip of a transparent fabric-such, for instance, as silk or wire gauze. This nonbrittle fabric takes the place of the glass now ordinarily used. In the drawings, 2 represents the cover of a burial-casket, which may be of any ordinary form and preferably provided with two removable panels, 3 and 4, which are held in place by the usual catches, 5, securing them removably to the cover. Beneath the panel at the head end of the cover I provide a sliding frame, 6, which may be formed of metal or wood and is guided in suitable slots at the sides of the opening. Over this frame is stretched a layer, 7, of some comparatively transparent yielding nonbrittle fabric, such as silk or wire gauze. The frame may be slid back when desired by means of a cord, 8, secured at one end of the sliding frame. It will be understood that the face-plate may be otherwise attached to the cover than by a sliding connection. The advantages of my invention will be apparent to those skilled in the art, since the disadvantages consequent upon the use of a brittle panel. such as glass, are done away with and a transparent panel obtained, which is not liable to breakage due to jars upon the coffin or consequent upon swelling of the wood."

Other advantages flow from the use of this face plate. It admits air, permits the escape of gas, and is light and easily and safely handled. It involves much more than the substitution of a stretched sheet of transparent nonbrittle gauze fabric (of which many kinds may be used) for glass.

Within the case of George Frost Co. et al. v. Cohn et al., 119 Fed. 505, 56 C. C. A. 185, I must hold the patent valid. In my judgment what was done here involved much more of the exercise of the inventive faculty as distinguished from the ordinary skill of the calling than did what was done by the patentee of the Gorton patent, No. 552,470, held valid in the case referred to. In that case Wallace, J., said:

"It is not necessary to the patentable novelty of a device, which consists in employing a new material for an old one in constructing one of its parts, that the substitution should involve the discovery or utilization of an unknown or unexpected property of the material. This is one of the tests of patentable novelty; but it is not the only one. Whether the feature of novelty is the employment of a new material, or a change of adaptation in other respects. the inquiry always is whether what was done involved the exercise of inventive faculty as distinguished from the ordinary skill of the calling. When the substitution has accomplished a result which those skilled in the art had long and vainly sought to effect, the evidence that it involved something be yond the skill of the calling is so persuasive that it generally resolves the inquiry in favor of patentable novelty. Applying that rule to the present case. we conclude that the patent in suit, as regards the claim in controversy, is not invalid for want of patentable novelty."

Gauze fabric had been used prior to the granting of the patent in suit by tacking it to the sides of the opening in the casket to keep out

flies, dust, etc., but it had not occurred to any one to do what the patentee did, stretch a sheet of transparent nonbrittle gauze fabric on a frame and fit this to the casket in the manner described, and thus do away entirely with the heavy, comparatively expensive, and breakable glass face plate. I will not go extensively into the evidence. The patent combines novelty with great utility and commercial success. In a close case these are important and frequently decisive considerations. We have much more than the skill of the mechanic versed in the art. The case is different and stronger for the complainant than when before Judge Hazel.

Infringement is clearly made out, and on the authority cited there will be a decree for the complainant, with costs.

DYER et al. v. CRYDER et al.

(Circuit Court, S. D. New York. April 8, 1907.)

PATENTS SUIT FOR INFRINGEMENT-PLEADING.

Where a bill for infringement of a patent, in which the patentee and an alleged licensee join as complainants, is challenged by demurrer for misjoinder of complainants, and the bill does not set out the instrument of license nor allege that it is recorded, it should be produced, that the court may determine its legal effect.

In Equity. On demurrer to bill.

Redding, Kiddle & Greeley, Albert M. Austin, and William A. Redding, for complainants.

Morgan & Seabury and Joseph L. Levy, for defendants.

HAZEL, District Judge. The bill alleges that the complainant Leonard H. Dyer, by an instrument in writing, "did give and grant into your orator, Association Patents Company, its successors and signs, the exclusive right and license to make, import, sell, and use throughout the United States" automobiles embodying the invention in suit. Defendants have demurred on the ground that there is a misjinder of parties complainant, and they urge that the license specified in the bill is in effect an absolute conveyance or assignment of the patents. Complainants contend that the written instrument reserves to the patentee, Leonard H. Dyer, the ownership of the patent, and gives to the Association Patents Company merely the right to make, sell, and use the patented article, including an interest in certain profits and damages that may be recovered for past infringements. The assignment or license is not produced for the examination and inspection of the court. The bill contains no averment that the instrument is reorded, but makes alleged profert thereof in these words:

"As in and by said license or a duly authenticated copy thereof here in court to be produced will more fully and at large appear."

In the absence of an allegation that the license or assignment is recorded, it is thought that such instrument should be presented to the court either as a part of the bill or by an equivalent method which

will result in its inspection to enable judicial notice thereof. The authorities cited upon this point by counsel for the complainants (Bogart v. Hinds [C. C.] 25 Fed. 484; American Bell Telephone Co. v. Southern Telephone Co. [C. C.] 34 Fed. 803) refer to a profert of the record of an instrument as being equivalent to annexing a copy thereof to the bill. I am unable to determine from the face of the bill that the written instrument was a mere license, as claimed by complainants. Manifestly the question should not be determined simply upon excerpts from the instrument contained in counsels' brief. If it is important to consider its effect, the entire instrument should be produced for inspection or examination by the court.

The demurrer on the ground of misjoinder of parties complainant is sustained, with costs, and leave to the complainants to amend within 20 days is granted.

In re HUNTENBERG.

(District Court, E. D. New York. May 4, 1907.)

1. INFANTS-CONTRACTS-AVOIDANCE.

A contract of an infant is voidable only; the infant being entitled to elect whether or not he will avoid the contract, either during minority or within a reasonable time after he reaches majority.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Infants, § 151.]

2. SAME CONSIDERATION-RETURN.

On avoiding a contract, an infant must return the consideration, so far as it may be in his possession.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Infants, § 157.] 3. BANKRUPTCY-PREFERRED CLAIMS.

Where an infant obtained a bill of sale from a bankrupt to secure advances, and after his claim of preference by virtue of such bill of sale had been disallowed he elected to disaffirm the same because of his infancy, he was then only entitled to prove his claim for advances as a general creditor.

4. SAME-WAGES.

A claimant against a bankrupt's estate is not entitled to a preference for wages earned more than three months prior to the commencement of the bankruptcy proceedings, as provided by Bankr. Act July 1, 1898, c. 541, § 64, subd. 4, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447].

In Bankruptcy.

Isidor Buxbaum, for claimant.

Richard P. Aldcroftt, Jr., for trustee.

CHATFIELD, District Judge. In this proceeding one Henry Batter filed a claim for $1,020 cash advances made to the bankrupt between the 8th of April, 1905, and the 20th day of July, 1906, and a claim for wages for eight weeks, amounting to $104, for services rendered to the bankrupt. The advances of cash were loans made to the bankrupt while he was conducting a grocery store. On or about August 20, 1906, the bankrupt executed and delivered a bill of sale to the said Henry Batter, which was duly filed August 20, 1906, and covered the stock, chattels, fixtures, horse, wagon, etc., of the grocery business above referred to. On the 13th day of September, 1906,

Christian Huntenberg was adjudicated a bankrupt, and thereafter a receiver was appointed, who took possession of the property. A sale was had, and the proceeds retained by the receiver pending the determination of the rights of the said Henry Batter to the proceeds of the sale in place of the said store.

The record shows that the said Henry Batter filed a claim with the referee as a preferred creditor because of his bill of sale, and this claim for priority was disallowed, inasmuch as possession of the property was not given at any time prior to the bankruptcy. The claimant, Batter, was not in possession when the receiver took the property into his charge. The claimant has now obtained an order directing the trustee to show cause why the various amounts claimed by him should not be paid by the trustee, and sets up the proposition that he was and has been at all times an infant; that as such his contract, evidenced by the bill of sale, was voidable; and that he desires to exercise the privilege of an infant and to rescind the contract. This he claims renders the transaction absolutely void, and entitles him to the return of the money advanced and the amount due as wages.

Upon the return of the order to show cause the matter was referred to the referee in bankruptcy as special master, and he has reported that, of $104 claimed as wages, $96 was for a period some three months efore the bankruptcy, and that for this the claimant is not entitled to a preference; that as to the advances made the infant, Batter, having abandoned his claim of title under the bill of sale, should be treated on the same basis as the other creditors. The special master reports that the claimant testified that he had been working at the store at various periods before the bankruptcy, that he made the advances above referred to to help the bankrupt out when he was "way behind" and had to do something to "keep up," and that therefore the said Henry Batter knew of the insolvency at the time of the ill of sale, and that the said bill of sale was given to Batter for the purpose of creating an unlawful preference. The special master reports that under the bankruptcy act he finds no authority allowing an infant the right to rescind a contract and obtain priority thereby, and therefore recommends that the claimant, Batter, receive the n of $8 wages, and that as to the other amounts he should be treated as a general creditor.

The report of the special commissioner should be confirmed, and the matter disposed of as found by him, on all of the grounds, unless the infancy of the claimant allows him to obtain different treatment from that which an adult would receive. It is undoubtedly true that an infant's contract at one time was considered absolutely void; but the tendency of the law has been to regard contracts and transactions of infants as voidable only, and at the present time the infant has no more than a right to elect whether or not he will avoid the contract, either during minority or within a reasonable time after he reaches majority. Tucker v. Moreland, 10 Pet. 58, 9 L. Ed. 345; MacGreal v. Taylor, 167 U. S. 688, at page 696, 17 Sup. Ct. 961, at page +63 (42 L. Ed. 326). On avoiding the contract, the infant must

153 F.-49

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