IN BE GLENMONT.
The bill in this case'was filed to restrain the infringement oUwocertain patents granted to L. Augustus Aspinwall,one dated February 3,1880, and numbered 224,123, and the other dated September 19, 1882, and numbered 264,603,-both for improvements in potato diggers,aQd both assigned to the complainant by a deed bearing date February'24j 1883.: The bill charges the defendants with infringement' of the: Said patents, ,and prays for a decree for profits and damages. TlieilMenses set up in the answer are-F'irst, a license; and, secondly, , ,' , The li6ense :elit!imed is the same ,as that which was set up in the suit on the plariterpa,tent, ante, 697, Gustdecidedj)it being claimed under the'same,l1gree#ient, which provided for the manufacture of 100 planter machines a:rid 100 lUgger machines. I held in that case that the defendants hadexbausted the Ih)ense for the manufactUre of planters before' the of the suit, and had infringed the patents sued Qn by manufacturing in excess of the license. In the present case this has notheen done:' The defendants have not manufactured, all told, out 50 pothiOdiggerSof the :tOO which they were authorized to manufacture. According'to the views expressed in the other case, therefore, the defendants are not amenable to a suit for infringement of the digger patents. They went to large expense in getting out such machines as they di,d manufactu,rEl, and,are entitled to a reimbursement of those expenditures from the proceeds of machines to be sold; and,as the sai.d Aspinwall:Rasintel'posed every 'possible obstacle in the way of their dispOsing of machiries, it cannot be justly contended that their license will expire until they have made their full complement of 100 machines. , This disposes Of the presentcase,and it is unnecessary to enter upon the consideration 'of the :other defense, which is much the same as thesecond defense in the planter 'ease, with the exception that the instruments called IlSsignments of the digger only grant the right to make, 1;1se, and vend, (which is a mere license,) and only grant use of futl;lre the,state ofNew Jersey. What thii!limited right may amount to, shOuld the new digger machines be held to be mere improvements on the old machines, 'it is unnecessary, as before said, to consider at this time. The license is a su.fficient defense to the present bill. The is therefore with costs·
. In -: OONSTRUCTIOl'\ '"
GLENMONT.
'(Dtatrict Oourt,' D. MiTtnl8otQ,. November 1,1887.) Oil' VESSEL ,INCLUDED., ORIGIl'fAL CoN'PlACT - , MATTERS .'
,. . A month after-the hun of thesteam·boat was built, and the r>ropelling power put in, the libelant furnisbed)lljrwith stores, fuel. cbec)t·line, copper for J,lilaWJ.inery. pails for roof, bedding, etc. On the dliy 'tllfliout:lit was redei'ved the boat made her first trip. It'did not
704
FEPERAL REPORTER.
appear that the' original contract included these materials. Held, that the orIgin!!,l construction of the boat contemplated all the materials furnished to make the vessel serviceable from. the beginning, and that no maritime lien ' existed.
In Admiralty. The libelants, Hanson & Linehan, of Dubuque, Iowa, c1l:!-im a maritime lien against the Glenmont for fuel, tiller-line, check-line, copper wire, packing for machinery, pails for roof, beds,and bedding, etc., furnished to enable the vessel to perform her .intended voyage. The boat was built at Dubuque, and was finished on April 23, 188p, by the outfitting above stated, and on that day started on her first trip to Stillwater, in the state of Minnesota. The owners of the boat were,Roman, of Camanche, Iowa, and Gillespie & Harper,of Stillwater, Minnesota, and on August 17, 1885, they sold her to the claimants', Laird & Norton, of Winona, Minnesota. The libelants urge that a maritime lien exists for the articles furnished. The claimants insist that the materials designated were furnished in the original construction and equipment of the Glenmont, for which there is no maritime lien. Several other defenses were interposed. The suit was decided upon the first detimse. Dan W. Lawler, for libelants. Clark, Eller tic How, for claimants. NELSON,J. The libel is filed to enforce a lien claimed for equipment of the steam-boat Glenmont, after the hull was launched, and before any trip. The hull of the steam-boat was built, and the propelling power put in, under a contract, as I understand the evidence, a month or mora before the materials, for which a, maritime lien is claimed, were furnished. The terms of the construction contract are not disclosed, 'but . the original'contract did not include the materials and outfit, a lien for which is now asserted. The question presented for determination, and the only one, in my opinion, is whether the materials furnished are a part of the original construction to complete the structure, and make it a vessel serviceable for the navigation contemplated, or was the steam-boat entirely complete and adapted for the intended use at the time the materials were furnished by the libelants. I cannot doubt that the materials furnished were necessary, according to the original design, and the steam-boat would not be suitable for the navigation intended without the tiller-rope, check-line, bedding, etc., included in the libelants' bill of items. The original construction of the boat contemplated all the materials furnished to make the vessel serviceable from the beginning, and no maritime lien exists. The question presented was settled in Ferry 00. v. Beer8, 20 How. 393; Edward8 v. Elliott, 21 Wall. 532; Roach v. Chapman, 22 How. 129; Morehead v. Enequist, 23 How, 494. See The Pacific, 9 Fed. Rep. 120; The Norway, 3 Ben. 163; The Count de Lesseps, 17 Fed. Rep. 460. The Eliza Ladd, 3 Sawy. 519, is not in harmony with the above cases. The libel is dismissed, with costs, and a decree so ordered.
WRIGHT V. SCHNEJDER.
705
WRIGHT V. SCHNEIDER.
:(Oircuit Oourt, E. D. Missouri, E. D. November 26.1887.) COURTS-FEDERAL JURISDICTION-CITIZENSHIP.
Plaintiff was born in New York, but removed to New Jersey, in 1868. where he married, in 1877, and continued to reside until the death of his wife in 1880. He then took his children to Scotland. On his return he located in New Jersey, and lived there, boarding, until 1884, when hewent to St. Louis. His business was contractiag for street work, and he secured many important contracts there for granite paving. He also formed a'partnership with defendant for quarrying granite. He then closed out his business in New Jersey, and moved such of his machinery as he could not sell to St. Louis. After living there for two years. part of the time in a hotel and part with relatives, he sued defendant in the federal court for dissolution of partnership,. alleging that he was a citizen of New Jersey. Held, that the facts set out established I/o residence in Missouri, and that they were not overcome by a secret purpose of plaintiff to return to New Jersev when his business in Missouri was concluded at some indefinite future period.
In Equity. On plea to jurisdiction. John M. Dickson, for complainant. Hitchcock, Madill & Finkelnburg, for defendant. THAYER, J., (orally.) The case of John G. Wright against Philip W. Schneider is submitted ona plea to the jurisdiction. Wright, the complainant, representing himself to be a citizen of the state of New Jersey, files a bill against Philip W. Schneider for the purpose of winding up a copartnership alleged to exist between the parties, and to secure an accounting as to copartnership transactions. The defendant, Schneider, files a plea to the effect that Wright is not a citizen of the state of New Jersey, but is a citizen of the state of Missouri; and that is the sole question to be determined. I have looked through the testimony bearing upon that issue, and the following facts may be said to be practically undisputed, that is to say: It appears that the defendfl.J1t was born in the state of New York, and went to reside. as a single man, at Orange, in the state of New Jersey, in 1868, and continued to reside there until the year 1877. In the year 1877 he was married, and after his marriage he removed to Newark, New Jersey, and resided and kept house there for about three years, and until his wife died. Subsequently, in the year 1880, he took his two children to Scotland, and left them with relatives to be reared and educated. On his return to this country he located again at Orange, New Jersey, but from that time forward boarded at a hotel, and continued to board until he came to St. Louis, in the winter of 1884, or 1885-January, 1885, I think the testimony shows. During the entire period of his residence in New Jersey, the complainant's business appears to have been that of a contractor for street work, such as street paving, etc. Shortly after his arrival in St. Louis he took at least eight contracts for reconstructing streets with granite. The execution of the contracts would require a very considerable period of time, and, according to his own statements as contained in v.32F.no.12-45
