FEDERAL
tion of damages in this court, and in the latter case it was strel1Uously contended in behalf of the complainant that the complainant had never fixed the royalty at three dollars per machine, but should be allowed at least five dollars per machine, as the lowest royalty which the owner of the patent had ever given a licensee. The master, however, followed Judge DYER'S ruling in the Wisconsin case, and fixed the damages at three dollars per machine, and his finding was confirmed by the circuit judge in April, 1885. Undoubtedly, where the owner of a patent has established a customary charge for the use of his patent, the measure of case Qfinfringement is that charge, with interest from the his date of the infringement. McCormick v. Seymour, 3 Blatchf. 224. But the royalty or fixed license fee must be established generally, and must be uniforw., and proof of a simple license is not enough. JUda01'L v. Bradford, 3 Ban. & A. 549. I do not understand Judge DYER'S decision in the Wisconsin case to proceed upon the ground of an established customary charge, but he- assumed that three dollars per machine,-which was what the owner of the patent had granted one licensee on certain conditions,-as" most nearly measuring or aPPfoximating the compensation in damages to which. the complainant is entitled." The owner of the patent did nat, however, acquiesce in this decision, but ,on the next opportuJ:lity contended for a larger sum. I therefore conClude. that no customary charge or royalty had beE'n fixed by the owner of this patent for its use at the time of the infringements found in this case, and shall, therefore award damages at the rate of three dollalspar machine, with interest from the date of the interlocutory decree.
OARD". HINES.
(Di8trict (Jourt, D. South (JO/folina.
June. 19, 1888.
1.
ADMTRALTy-PARTIES-NoN·JOINDER.
Where, on libel in admiralty against respondent as sole owner of the steamship, it appears that he is only owner of 18-64ths, and that other persons own 46-64ths thereof, the libel will be dismissed. . '
B.
SAME-JUDGMENT ON DEMURRER NO BAR TO PLEA.
. Where a libel in admiralty for breach of charter-party alleges that respondent is the sole owner of the steam-ship, and the charter-party filed therewith ,is made by certain agents of the owners, a judgment on demurrer that the libel is not defective for the apparent variance, does not preclude respondent from showing by plea the fact that there are other owners, and, as such, necessary partIes., '
8.' SAME-CERTIFICATE OIl' REGISTRy-ESTOPPEL. . Nor is the respondent precluded from showln,lt in defense that there are other owneraof ,certain shares therein, by the fact that the certificate of re. gistry, datedApril 20, 1879, delivered by the master for entry into the customhouse, showed that respondent was· sole owner; such. certificate Dot being a. document of title, and, respond,ent not intending thereby to mislel10d libelant.
In Admiralty·. Libel for breach of charter-party·.
CARD 'D. BINES.
599
J. N; NathantJ, for libelant. J. P. K. Bryan, for respondent. SIMONTON, J. This libel was filed for breach of charter-party against the respondent, who is alleged in the libel to be the sole owner of the British steam-ship West Cumberland. The charter-party attached to the libel as an exhibit was made at New York, 5th November, 1887, between the libelant and Simpson, Spencer & Young, agents of the owners of the steam-ship West Cumberland. The respondent demurred to the libel upon the ground that the libel was against the respondent as sole owner of the steam-ship, and the charter stated that Simpson, Spencer & Young' were agents for the owners, thus showing\ on its face that others besides respondents were owners, and so necessary parties. The demurrer was overruled. As it admitted the allegation of the libel, the supposed variance between the exhibit and the articulations of the libel did not warrant the conclusion sought to be drawn therefrom. The respondent then pleaded in abatement that he was the owner of 18-64thf!. of the steam-E>hip, holding these shares for his firm of Hines & Bro., and that certain other persons, unknown to the proctors of respondent, owned the remaining shares of The libelant joined issue on this plea, denying the ownership of any other party than respondent, and averring that he was the sole owner, as charged in the libet The case comes up upon the plea and issue thus made. At the hearing the libelant interposed two preliminary objections to hearing on the plea: That the decision on the demurrer was res judicata, and the discussion cannot be renewed; second, that the plea in abatementis bad, in that it does not disclose the names of the alleged coowners. The ruling on the demurrer went simply to this extent: that upon the face of the. pleadings it did not appear to the satisfaction of the court that respondent was not sole owner of the ship. The libel, articulately propounded that fact. The demurrer pro hac admittedthill allegation. The apparent variance in the exhibit did not cure the admission. The plea now alleges as a fact'that there are other owners. A different question is presented. This exception is not well taken. With regard to the form of the plea, there can be no doubt that when one pleads the non-joinder of defendants in abatement, especially if these are co-owners with him, he pleads a fact peculiarly within his knowledge or within his reach. To avail himself of the objection he must state who the others . are, so that in anew suit the' plaintiff may be advised. In the language of the common-law pleading, he must give the plaintiff a better writ. 1 Chit. PI. 446. -Were this not so, have an endless succession of pleas in abatement. This rule of pleading, founded upon fixed principles, has force in every jurisdiction. The plea, then, in the case at , bar, was not good. But the libelant, not excepting to the form, or to the sufficiency of the plea, joined issue thereon. Technically and. logically issue is the single fact put in Issue: the only question in the. case on Is respondent the sole owner of the ship? And if this be decided against the libelant, logically and technically, in a forum in which. pleadings
600
FEDERALREfORTER.
are strictly enforced, his case would end. There would be no rQonifor the inquiry into the merits of such a defense. Such.a result would conflict with every principle of admiralty administration. Occasionally remarks fall from the the discussion of cases which create an imthat the science of pleading has no place in this court, and that no fixed rules. exist by which pleading in admiralty can be tested. It is true that the supreme court·of the United States has not pursued the same course with regard to admiralty practice and pleading as it has done, in its equity rule 90, with regard to cases in equity. We are left to gather these rules from cases and the few text-books on the general subject of . admiralty. But the science of pleading controls every court of justice. It not only presents in clear and intelligible fonn the issues between theparties, but it preserves these issues in the record, so that the controversy can be settled for all "Pleading is the science and course of allegation whereby a pa)::ty in court presents his demand or defense against the demand of the other party, to be made matter of record therein-." 1 Bish. Crim. Proc. § 2.· ,Ill the language of KENT, C. J., in Bayard V. Malcolm, 1 J ohns..471, "the established principles of pleading, which compose what is call,ed its science, are rational, concise, luminous, and ought, consequently, to be touched very carefully by the hand of innovation.'" The advantage of an orderly, not to say scientific, system of administration is as apparenUn the courts of admiralty; and mischiefs of uncertainty or inexactness are as positive there as in any other tribunals. STORY; J.,'in The Boifton, 1 Sum. 328; McKinlay V. Morrwh, 21 How. 343. The pleadings in admiralty, however, aremore simple and less technical than in .a court of common law. In the former the pleadings are subordinated to the merits of the case, and no cause is allowed to go off or' to be decided on technicalities only. "The technical rules Qf variance or departure in plt'ading are disregarded, and the cOllrt is never preclUded from granting the relief appropriate to the· case appearing on the record and prayed for in the libel, because the entil'ecase is 1I0t in the libel." Dupont v. Vance, 19 How. 171. The true office of pleading is to ascertain precisely the points of difference between the parties on the merits of their case. Is there a difference 8S to the facts of the case? Or, the facts being substantially agreed upon, is there a difference as to the law applicable thereto? The rules of admiralty pleading seek an answer to these questions in the most direct and simple way. Each party, in language of his own choosing, tells .his own story as nearly in narrative form' as is consistent with brevity and perspicuity', so that his antagonist as well as the court can be in possession of his case. These are respectively what are known as the "libel" or "information," and the" answer." All other methods of pleading in admiralty are intended so to complete these two statements as to .reach this result. As is said in the case of Dupcmt V. Vance, above quoted: "The libelant must propound with distinctness l,he substantial facts on which he relies, pray for the relief appropriate to them, and ask for pro-· cess. 'The respondent must answer distinctly each fact stated in the ripel, either admitting, denying, or d\.'claring his ignorance althern, and allege alL
CARD V. HINES.
601
such other facts as he may rely upon as a defense in whole or in part to the libel. " Amendments as to all matters in form are allowed as of course at any time. And amendments as to matters of substance, even to' adding new connts, may be permitted by the court before final decree, on such terms as the court may impose. Rule 24 in admiralty .. These principles apply at every stage of pleading in admiralty. The pleading in admiralty consists of the libel or information and the answer. In New York a §§ 366, 367, 481. It is seldom used replication is put in. Ben. in this court. If the libel does not state clearly and distinctly all the facts of the libelant's case, it can be excepted to, and, if need be, corrected. If it contains all the facts of the case, and these, in the opinionof respondent, do not show any case for relief, it can be excepted to on this ground, and the case can be heard and decided on the exception. If he has a fact which would bar the action, he can set this up as an ex<leption or include it in his answer. But he must take all his exceptions at once. He cannot interpose one, and then another, and yet another, spinning out his defense indefinitely The similar course is pursued with regard to the answer. If it be not complete, it can be excepted to and amended. If it state no defense, this can be tested upon an exception. These exceptions fill the office of demurrers and pleas in the other -courts. Let us apply to this case the broad principles of admiralty pleading. It cannot go off on the narrow and technical issue made, nor will libelant be held to the results of the joinder in issue. Nor in relieving the libelant from this will the respondent be held to his defective plea. The the names of the persons alleged to be the other own-ers.The issue of fact is, is the respondent the sole owner of the steamship West Cumberland? There is in testimony a certified office copy of the official register of the steam-ship, and also oral evidence to the same ·effect. The register is kept and recorded, in accordance with the statute of Great Britain, at her home·port. This shows that respondent on 5th November, 1887, held the legal title to 18-64ths of the steam-ship, and that -other persons at that date owned the other 46-64ths. This establishes the fact that'respondent is not sale owner. Can this action be maintained in this court against one co-owner? The action is for breach of a charter-party made between the agents of the owners of the steam-ship the libelant. In its nature it arises from contract; and the contract binds the owners jointly. It is the rule certainly in the law courts that :all the joint contractors must be joined as defendants. Story, Partn. § 455. This is the rule in admiralty also. 2 Conk!. Adm. 23jBetts, Adm. 47; Mac!. Shipp. 126; Patton v. Magrath, Rice, 166; White v. Smith, 12 Rich. Law, 600; Mason v. Eldred, 6 Wall. 235. It seems, however, to be the law now in England that one part owner can be sued alone for breach of contract for the ship's employment by the ship's agents. This is subject to a right to apply to the court or ajudge to require plaintiff to join the other owners who are liable as defendants. 'Carv. Carr. by Sea, 35. This is clearly under some new English stat-
602
FEDERAL. REPORTER.
ute changing the law theretpforeexisting. ld. 36. He quotes R. S. C. 1883, 18. This has no force here. If, indeed, the libelant in bringing his action had charged the owners of the steam-ship, and had alleged that only one of them, to-wit, this respondent, WIlS known to him, and the others were not known to him, he perhaps could sustain his libel. Each part owner is liable in solido. Story, Partn. § 455. And Benedict says that when this is the case the mode above suggested can be adopted. Ben. Adm. § 387. But the libel charges the respondent as sole owner. It does not pursue the course suggested by Benedict. The libelant, however, contends that, even if the respondent is not sale owner, he cannot avail himself of this defense. When the West Cum1887, her master delivered to berland came into this port in. the British consul her certificate of registry, dated 20th April, 1879, for entry into the custom-house, and by that certificate the respondent's name llione appeared as owner of the ship. This certificate of registry .is a doctlment borne by every British vessel under section 44, Merchant $hipping Apt, 1854. It is contended that this estops the respondent from now denying his ownership. .Estoppel, as the term is known at the common law, has no place in adIlliralty. But if a party by his fraudulent act induces another to change his situation, he will not be permitted in any jurisdiction to take advantage of his own fraud. There is no evidence of any act done by this respondent. Nor of any representation made by him, or by his authority, when the charter-party was made. Nor is there any evidence that when the master of the vessel entered his certificate of registry he misled, or intended to mislead. the libelant, or that the position of libelant was in anywise changed to his disadvantage. Besides this, the ce.rtificate itself warned everyone by a notice upon it that it was not a document of title, "and that it does not necessarily contain notice of all changes of ownership. This action cannot be maintained against the respondent alone, The argumentab inconvenienti has been strongly pressed. It is true that, if the rule be insisted upon that all part owners of ,a vessel be made parties defen.dant to an action for breach of contract, one never can be safe in fming them. There may be changes incurred from death, bankruptcy I sale, fl.tany hour, unknown either to the master, agent, or party contracting. Rapid as is the transmission of news' by cable, such change may ()pcur between the sending and the receipt of a cable message. But this does not leave the contracting party without remedy. If he deal with an agent who signs, as in this case, he can hold him responsible, (lr he may hold the ship responsible, or he may sU,rrender his choice of hill forum, and go to the home of the ship. The exception to the libel is sustained.
ROBINSON
tI.
15,516 BAGS OF SUGAR.
603
ROBINSON et al. v. FIETlmN THOUSAND FIVE HUNDRED AND , BAGS OF SUGAR. l {District (Jourt, E. D. New York. May 12,1888.) ADMIRALTY-COSTS-MARSHAL'S FEES-COMPROMISE OF CLAIM-BASIS OF COMPUTATION.
The sum paid a libelant in settlement of his claim. and not the amount claimed in the libel, is the basis upon which the marshal's commissions are to be determined, under section 829, Rev. St.
In Admiralty. Appeal from clerk's taxation of costs. E. B. Convers, for libelant. Martin for claimant. OharlesM. Stafford, U. S. Marshal, in person. BENEDICT, J. This case comes before the court on an appeal from the clerk's taxation of the marshal's fees. The claim set' forth in the libel amocnted to $1,959.98. After the service of the process by the marshal, and before trial, the case was compromised by the parties by the payment to the libelant of $1,200. Thereupon the marshal presented fOl'taxation his bill of costs, in which he claimed commission on $500 at 1 per cent., and commission on at t per cent. The claimants do not object to the commission of 1 per cent. on the first 8500, butclaim that thet per cent. commission should be on $700, instead of 81,459.98. The clerk allowed a commission of 1 per cent. on &500,and t per cent. on 8700. The marshal appealed. The question to be decided is whether the marshal is entitled to calculate his commission on the amount paid by way of compromise of the claim, or the amount set forth in the libel as the libelant's claim. The words of the statute are: "When the debt or claim in admiralty is settled by the parties without the sale of the property, the marshal shall be entitled to a commission of one per cent. on the first five hundred dollars of the claim or decree, and one-half of one per cent. on the excess of any sum thereof over five hundred dollars." In my opinion, where the amount due the libelant is not fixed by decree, but agreed on by compromise, the amount paid by way of compromise to settle the claim is to be considered the amount of the claim within the meaning of this statute. Such has always been the interpretation of the statute, so far as I know, in this court, and it seems in barmony with the decisions upon the subject. See The Clintonia, 11 Fed. Rep. 740; The City oj Washington, 13 BIatchf. 410; The Russia, 3 Ben. 4f1. These cases are not precisely similar to this case, but it will, I think, be in harmony with the principle of these cases to hold that, when a libelant agrees to accept a certain sum of money in settlement of his. demand, that sum becomes his claim within the meaning of the stl:l,tute. Of coqrse the libel could at any time be amended by reducing the 1
Reported by Edward G. Benedict, Esq., of the New York bar.