708
FEDERAL BEPORTER.
WILKINSON". CULVER. (Oirc'Uit fJo'U'I't,
8.
D.
lYeuJ
York.
FebruarY,7, 1888.)
PLEDGE-AGREEMENT Fon COLLECTION-EFFECT.
Defendant executed notes to a, trust company, and delivered bonds and choses in action as coUater,sl ,security, The company signed an agreement regarding the securities, which provided that the ,proceeds arising from the sale of the securities and recovered from the choses in action should be applied to payoff the notes, subject to the repayment of moneys expended by the company in prosecuting claims or sellmg seQurities. Held that, under this agreement, the company was not bound to seU the bonds in the absence of any request to sell, nor to commence suits; nor was it bound to prosecute suits at its own charp;e and risk.
At Law. Motion for new trial. This aotion was brought by George Wilkinson, as receiver of the American Trust Company, against Delos E. Culver. OJu1'tlandt Parker, for plaintiff. R. Floyd Olarke, for defendant. SHIPMAN, J. This is a motion by the defendant for a new trial of an action of debt upon judgment. The original action was upon sundry promissory notes of the defendant to the order of and owned by the American Trust Company. In this suit the defendant filed a counterclaim, in which he sought to recover damages against the plaintiff for the alleged violation by the trust company of its agreement with the defendant in regard to the property which was pledged to it as collateral security for the payment of said notes. On February 24,1876, the defendant executed and delivered to said company his five notes, amountin!! in all to $39,631.29, and also delivered to it certain railroad bonds, and assigned to it chases in action, as collateral security for the payment of said notes. The chases in action were his claims against individuals and a railroad corporation arising out of his contracts with them. The defendant drew a declaration or agreement in regard to said pledged property, which the trust company signed. This agreement, after describing the defendant's notes, and declaring that it held for his benefit certain choses in action, stock, arid bonds, which it described, contained the following clause: "The proceeds arising from the sale of said securities, and recovered from 'said choses in action, are to be applied to payoff said notes and interest, and the remainder is to be paid to said Delos E. Culver, or his legal representatives,subject to the repayment of moneys expended by said American Trust in prosecuting claims or selling the securities." Two of the claims were not prosecuted. A suit upon another claim had been instituted by the defendant, and was thereafter successfully prosecuted by the company at its expense. It is insisted by the defendant that the necessary implication of the contract is that the trust company was under an obligation to sell the securities, and to prosecute the claims, at its own risk and expense. No
ROBBINS
V.
ROBERTSON.
709
request to sell the bonds was proved. Ido not perceive that the con· tract contains, by implication, an agreement on the part of the pledgee that it would sell the bonds and commence suits, and do not think that it can be inferred or presumed from its terms that the trust company bound itself to prosecute suits at its own charge and risk. It cannot fairly be presumed, from the language of the contract, that the obligation of the company differed from those usually and naturally resting upon holders of collateral security of the same character, viz., that a sale, in the absence of a request to sell, or the commencement of suits, was not compulsory, but was to be at the discretion of the pledgee. for a new trial is denied. The
ROBBINS et al. (Oircuit Oourt, S.
'11.
ROBERTSON, Collector. York. January 19, 1888.)
n. New
CuSTOMS DUTIES-CLASSIFICATION-STEEL ORNAMENTS.
Whether articles made of cut steel, steel, brass, copper, or motber of pearl, used as ornaments for belts, dresses, and sometimes for the hair, are dutiable as "manufactured articles not specifically provided for, composed Wholly or in part of iron, steel," etc., or as "jewelry of all kinds," depends upon the meaning attached by the trade to the phrase "jewelry of all kinds," with ref· erence to which congress ill presumed to legislate in the tariff acts.
Action to Recover Back Customs Duties. ,This was an action by Aaron S. Robbins and others to recover excess of duties. paid on articles made of cut steel, of steel and brass, and of mother of pearl. They were of an ornamental character, were used to decorate belts, dresses, cloaks, hats, or bonnets, and were, in some in· stances, intended to be used as ornaments for the hair. They were scribed in the invoices by various names, such as "steel buckles," "steel ornaments," "steel cloak clasps," "steel daggers," "steel pins," "mock jewelry brooches," "mock jewelry ornaments," "steel hair-pins," "bonnet pins," "dress pins," "steel head-bands," "steel and pearl buckles," "mock jewelry buckles," etc. They were assessed for duty under paragraph 216 of the tariff act of 1883, as "manufactures, articles or wares, not cially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, plati. num,. or any other metal, and whether partly or wholly manufactured," and duty at the rate of 45 per cent. ad valorem exacted. The importer claimed that they were dutiable at 25 per cent. ad valorem,under para,.. graph 459, as "jewelry of all kinds." Hartley & Coleman, for plaintiffs. Stephen A. Walker, U. S. Atty., and W. Wickham Smith, Asst. U. S. Atty., for defendant.
710
FEDERAL REPORTER.
LACOMBE; J., (omlly-chargitig jury, after ruling upon' the 6'Uffidency of certain protests.) In the earlier tariff acts of 1789,1190, and 1794, duty , was laid 'upon jewelry and paste work. In 1816 duty was exacted upon .jewelry, precious stones, :and. pearls of all kinds, set or not set, Bristol ,stones, all paste work, allarticles com posed wholly or chiefly ofgold, silver, etc. In the tariff act of 1842, August 30th, besides a duty upon gems, precious stones, and imitations thereof, there is laid a duty on jewelry composed ofgold, silver, or platina, 20 per cent.; and on gilt, plated, or imitation jewelry, 25 per cent. In the act of184{) there was a duty also laid on jewelry, real.or imitation. At that time, you will perceive, congress had recognized that there existed a distinction between jewelry and imitations of jewelry; that there was such a thing as real jewelry; that there was such a thing as imitation jewelry. When, therefore, congress undertook to legislate in 1883 by passing the tariff act under which these goods in suit were entered, there existed here a statutory distinction between "jewelry real" and "jewelry imitation." In other words, it was recognized by the statutes that both classes of articles existed,-real and imitation jewelry. The act now: before us, paragraph 459, lays a duty on "jewelry of all kinds, 25 per centum ad valorum." In view of the fact that, when the act was passed, it was known to congress that a distinction between real and imitation jewelry as two different kinds of jewelry had been made for many years in tariff acts, .Wmust be that congress intended that all jewelry, the imitation .Jewelry as well as the real jewelry,. should pay a duty of 25 per cent. That brings us to the next question in the case: what is jewelry? The word "jewelry" is generally used as including articles of personal adornment, and the word further imports that the articles are of value in the community where they are used. A belt of cowry shells, a necklace of bears' claws, a head ornament of sharks' teeth, though possessing no value in themselves, are esteemed valuable in the communities where they are worn; and ,we, therefore, constantly find them referred to in books written in the English language,-books of travel, standard works, encyclopredias, and. scientific dissertations upon sociology-we find those articles described in those books as "jewelry." The articles of value used for persona] adornment in our civilization are, and for centuries have been, the preciousmetals,-goldand silver, to which, I think, platina is now generally added,-and what are known as precious stones,-the diamond, sapphire, ruby, etc. Articles manufactured from those for the purpose of personal adornment are known, as the witnesses on the stand told you, as. articles of jewelry, and such testimony is accordant with your own knowledge as to what is the ordinary use of the t{)rm elry." , We have found, however, that besides jewelry there is such a thing as imitation jewelry. Jewelry, of course, is an expensive article, and as many people desire to wear ornaments without being able to pay the price required for real jewelry, the manufacture and the use of imitation jewelry have come into existence. Now, what is an imitation piece of
ROBBINS V. ROBERTSON.
711
jewelry? It need not necessarily be a counferfeit,-that is, it need not be an exact simulation of a particular article which it is intended to take the place of. If by a pleasing combination of appropriate materials, by an attractiv.e arrangement of parts, an article is produced bearing a general resem blance to real jewelry ornaments, and suitable for similar uses, it may fairly be called imitation jewelry. Nor does the fact that the original jewelry of which it is an imitation has become obsolete prevent its being considered, in the ordinary use of the English language, as imitation jewelry. We all know from our reading that three or four hundred years ago articles of jewelry were used to ornament the head-gear, and to ornament the dress. If their use has entirely ceased to-day, that fact would not make articles now reproduced in imitation of them any the less imitation jewelry because real jewelry of the same kind is not now worn. If, therefore, we had to deal only with the ordinary use of the terms, of the English language in disposing of this case, I should leave no question to you for your consideration. That, howeyer, is not all that has to be determined in disposing of the cases brought under the tariff acts. The tariff acts deal with· the trade and commerCe I)f' this country. They are produced by congress upon elaborate and exhaustive investigations into the condition of that trade and commerce, and in. fUll familiarity, we ,must assume, with the terms used in such tradellrnd commerce. It is therefore a rule which has been laid down by the supreme court, in repeated decisions, that descriptive terms applied to articles of commerce shall be understood according to the accept&tion given to them men in our own ports at the time of the passage of the act by in which they are found. It matters not, therefore,herewhat may be the ordinary meaning of the words "imitation jewelry," or the ordinary meaning tpe words "jewelry of all kinds," if you arrive at the conclusion, from the testimony introduced before you, that those words have in the trade and commerce of this country acquired a distinct meaning different from their ordinary If they have acquired such meaning, and these goods are not within the scope of thaflileaning, then they cannot be considered as jewelry, although, were it not for that custom of trade and system of trade nomenclature, they might be so considered. You. perceive, therefore, that you will have to determine,from theevidel?:ce before you, first, whether there was any general, well-known, wide-spread meaning in trade, and commerce-that is, in the trade lll\d commerce that dealt in articles of jewelry and articles of this kindwhich gave word "jewelry" a meaning different from what it bad in ordinaryJanguage. If you arrive at the conclusion that there: was some speciaJ trade definiti<iln of, the word "jewelry," thllt dealers in the article .always used it as meaning a particular kind of goods, then I charge you that congress must be assumed to have legisUited with knowledge of that meaning, and that the wordjs ;used in the act in the same sense in which it is used in the trade. If you atriveattheconclusion thatthere is an existing trade meaning, you are to determine whether
712
thesearlic1as,d;r any of them or all of them, are or are n6t within the definition of the word "jewelry" as you find it in the trade· . The jury found a verdict for the plaintiffs for $200.20 principal, $44.11 in. terest froD;l; the date of es,ch payment; total, $244.31.
KIDD '11. HORRY.
Uo'Urt, E. J). .Pennsylvania. January 16, 1888.)
1.
PATENTS FOR INVENTIONS-INFRINGEMENT-GAS APPARATUS.
The essential parts (so far as here involved) of the device in letters patent No. 247, 925, for an "apparatus for enriching gas," or heater, are a chamber provided with a.series of corrugations, and a disk or partition for causing a circulation Of gas through the chamber, dividing it into currents, the only means, as was supposed, of thoroughly heating the gas, and feeding the hydro-carbon sufficiently. Held, not infringed by a device for heating, where the gas is confined in the pipe,.in its ordinary form, and is heated by surrounding this pipa'with a 100se-1;itting tube, or cover, into which heat from the illuminating burner is collected, and thus thrown upon the pipe; the column ()fgl\$ not being divided into currents, and not heated throughout, the fact that the heat is sufficient to fuse the hydro-carbon being unimportant, since the supposed necessity of heating the gas thoroughly,and the device for regulating the heat, are obviated by the deVice. In this case, although the drawings flIed show another form of heater, as well as the one for which letters patent issued, as there is no ambiguity, and nothing left for construction, the drawings of the patent should not be referred to in construing its claims.
2.
SAMI!l-CONSTRUCTION 'OF-DRAWINGS.
SAME-INVENTION-DBTA.CHING PART OF DEVICE.
A patent issued fora device to render. detachable a part of a machine, by SUbstituting a screw for the original fastening, will not be sustained. On bill'for injunction.
Francia Rawle and A. Q.' Keasby, for complainants. E. Olinton Rhoada andF. Garroll Brew8ter, for respondent. PER CuRIAM. The bill charges infringement of letters patent No. 247,· 925, for "apparatus for enriching gas," dated October 4, 1881; and of No. 333,862, for "carbureting attachment for gas-fixtures;" dated January 5, 1886, issued to Joshua Kidd; . The first of these letters is. for an hnprovement on the invention of Livezey and Kidd, patented a year earlier. This is so stated in the specifications in the following terms: "My invention relates to improvements inthe invention for which letters patent No"227,549 were issued jointly to myself and James Livezey, for apparatus tQenrich gas, by mingling with it the heated vapor of hydro-carbon naphthaline, or other hydro-carbon." The general features of Livezey and Kidd's apparatus were a gas-fixturehaving'a6al'buretingvessel (of spherical or other convenient form) attached at the bottom, with gas-burners arranged under each, to heat it.
InEquity.