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ADAMS",. KEYSTONE MANUF'G
(Circu,tt 001t'l't. N. D. nlinots. February 5.1890.) L
Letters patent issued October, 15, 1872, to al1nry A. for an improvement in corn'shellers, consisting of the combiDlitionwith the corn-sheller of a series of wings, whellls" or pr(ljections, so arranged on a shaft as ,to revo\ve in the direction in "'hich,t¥ corn is, running, andto force Into the sheller all misplaced ears, lire in'fringed by a devIce Which lluMtitutes for the' round shaft WIth its projectIons'a , w make the four, projilCtIng do the BllolIle work as tllp prOJections on the other shaft. ' . ' . IntakiDlt an account ofprofitil made by the infringers of a. ratent, where the comwhat lIlade by manufacturer!! 0 ',the patented article, wllich IS 8ubstantially the same as the infringing device, and the defendant O:lTe,1'B no proof 8& to his actual profits, a finding that defendant'8' profit on each machine that of the other is prop!!r. , , , , .
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In Equit) , Suitby Henry A. Adams against the Keystone Manufacturing Comfor patent. . ,JJobp,'I'JI.&:.Thacher, for complainant. Manahan &:' Ward, for defElndants.
,BLO'pOE'.tT, J. An interlocutorydecree was rendered in'this case several months ago, finding that defendant the Keystone pany had infringed the first claim of the patent granted to complainant on the 15th of October, 1872, for an "improvement in a, refereace made to HenryW. ,Bishop, Esq·· one of th,e of this court, to take proofs and state an accounting of the.gains,and ceived by defendant from such infringetnent, and alsosQ:ch damages as complainant .may have by reason thereof. The master has .filed, ,his report, finding that :the defelldant company' has manJl and sold 688 two-hole shellers, 683 four-hole shellers, 236 six-hole shel.ets,' which infringe compaainant's patent; that the profits on the two-hole machines amounted to 810 on eachmaehine, on the four-hole m!tchines the profits, amounted to 820 on each machine, and On the- six-lWle ;mll; chiries'the profits amountedto 830 on each machine, making an; aggregate profit '00 all the machines so made and sold 'of ,827,620, forwh\cl;l amount he recommends that a decree be entered. It also appears ,the proofthat, after the (lourt had entered an order awarding thacpmplailllint an injunctionpendtmte lite, unless the, defendant would file a bond', with surety to be approved by the court, conditiGned for thepaYWr,'ent of such amount as the court might, on final hearing, awaro the cOmplainant, ,the defendant,: having filed such bond, :challged the coqsime:shaft,With four projel;ltipg tion of itsmacliine ,by' substituting shaft witq pickcorners or angles, in place of the picker shaft, or ers or projections, which defendant hltd bet"orel,lsed.· This fll,ltOO the master finds, is theequivll'lent of the picker shaft before used; the pronfBareawarded' on xoacmnes with the fluted shan the
.nn:DERAL REPORTER, vol.
41.,
on those of the older construction; it appearing from the proof that defendant has made mach'inea with the fluted shaft,. as follows: Two-hole machines, 603; four-hole machines, 205; six-hole machines, 182. To this report and findings of the master the defendant has filed exceptions, which have been fully argued, both orally and by briefs. Tpe ofthesee:l\ceptions goes to the allowance of profits on machines containing shaft; defendant contending that this fluted shaft, does' not patent., The first claim of the patent is for the combination with the corn-sheller of a series of wings, wheete:;orprojections, so arranged on a shaft as to revolve in the same direction as the corn is running, and so placedrel,ative to the throats as toforeeinto the machines,all misplaced or hesitatingea.rs, sl,lbstantially as, Thespel'iifications of the patent provide for placing this shaft directly over the stream of ears ofcorn, just at the throat of the machine,'orentranoo into the shelling mechanism, so that the projections on the shaff will force or compel the ears to enter the shel}ingmechanism" and the patentee says in his specificatiolis: enough Is left rev'o!vlng winis and ,till! Of ,the throats to allow of a singlfi'ear to pass freely peneath Without cont,act, bllt sufficiently near to strike an overriding ear, and force it, and in contact therewith, or in the road thereof, ahead rapidly intothesl1eller, clearing the passage for the corn following. It is evident that the form or shapl' of the ,p,r(jjjlCtiolls upon,tre reyolving, may be varied in lllan,y ways, accomplishe9. I thereforeAo not limit myself to the form ' shown."
ByfluHngot grooving: this square sha.ft between the comers, defendant hns'1'nanifestly made a shaft with "projections, tt which do just what the patentee illtended the wings, wheelsi or projections on his shaft should do, .......thatis, f0rce intotJh:e machine allniisplaced or hesitating ears;"'and thefuigles or flanges made by the grooving is one of the many forms of projections Gn. the Shaft which the Jlateiitee suggests maybe' adopted. The proofalso shows that some kind of a beater or picker shaft is absolutely essential to the operation of defendant's machine. and the substitutionby defendant ofthisfiuted shaft, in place of its old picker shaft,that is, the shaft with 'pickers or projections upon it,-is a tacit admission by 'defendant of the necessity of this feature to<its machine. I therefotefind' that'the master committed hQ:error in bIking into his account the profitlron these machines with the ftutedshaft· . 'The second, third, and sixth insist that the master should ·have fou'nd the differenceibetween the"profitson the defendant'smachine. and :what would':ha.ve -been the profits by ,the use' of other wellkllownpioker shafts in 'use priortooomplainant's invention. It is a 'sufficient 'answer' to these objections· that' the proof shows no beater or :pioker toth6 Jcomplainant's invention which "w6u.ld'pei'fbinl, or were intended to perfurm, the function of complain'tint's'shaft, either in com plainant'e'or tile :defendant's corn-shellers. : ;:The fourth, fifth, 'seventh; and all tme'[subsequentexceptious assigned ;may'be cOlisidered and; iusubstgnoo, insist that the had
ADAMS II. KEYSTONE MANUF'OOO.
597
no basis in the proof for finding the amount of the defendant's profits as stated in his report. The proof shows that the manufacture of lers of the class to which defendant's machine belongs-that is, machines in which the ears of corDare fed endwise into the shelling mechanismis confined to four concerns: '1'he Sandwich Manufacturing Company, at Sandwich, Ill.; the Marseilles Manufacturing Company, at Marseilles, Ill.; the Joliet Manufacturing Company, at Joliet, Ill.; and the ant company. at Sterling, Ill. The proof also showing that, as early as 1861, AUl/;ustus Adams; of Sandwich, Ill., took the first step in the invention and manufacture of power corn-shellers 'Jf this class, in which the corn was elevated by an endless apron or conveyer to a point much above,the shelling mechanism. where it was delivered into a chute by which it slid,' by force of gravity, into the throat of the machine, and into the shelling mechanism; but the assistance of a man or boy. was needed to push forward the ears as they overrode, 'orcrossed each other in the chute, and direct them into the throat of the machine. The de.,; vice now before the court, covered by:complainant's patent, was applied: to this machine, and itsetfect, as .the.proof showsjwas not only to dis-, pense with the attendant at the' throat· of the machine, but to increase capacity of the 'machine about one-third; that is, the capaeity-of an 800-hushel machine per da)' was increased to 1.200 bushels per. ',day. Then came. theSchriffier' invention, which dispensed with the chute, and delivered the corn directly into the shelling mechanism from the upper end of the conveyer; and afterwards came the chain conveyer, or the "Marseilles feed," covered by the patent toJ. Q,. & O. R. Adams; which, as the proof shows, ,are the three important improve.. mentsin this class of machineswhich·hll.ve been made since the original Augustus Adams machine was:broughtout, the combined effect of which has been to increase the shelling capacity oithe machine to the extent of a thousand bushels per day for the four-hole machine, that being the one in ordinary use. The defendant's machine differs from the Adams machines mainly in the shelling devices,..,...that is, in the mechanism for stripping the oorn from the cob after the ears have passed into the throat -of the: machine,-and,aa I have already said, the, proof shows that, without th& beater shaft,. neither the defendant's 'nor the Adams sheller will operate;effecth·ely. -The defendant, as the proof shows, is the competitor of these Adams machines made by the Sandwich, Joliet; and Marseilles Companies. A glance at themeohanism of the two shellers..,...that is, the Adamlil and even tOR,person who is Dot an expel"t, that the there can be but very little, if any, substantial difference· between .the cost of the Adams machines and the defendant's of the same capacity, and the circulars intro<1up.ed in evidence suhstantiate this conclusion. The complainant, to establish the extent of the defendant's profits, called witnesses familiar with the cost and selling price of the Sandwich, .Joliet. and Marseilles machines, and showed what the profits of these manufacturers were on the sizes of machines made by them, ;and what proportion of these profits were fairly attributable to the com-
·' DDDkJJREPORTEB, ·.vol.
41.';"
plaiitltnt'sdavice.)No ·prOofs'were introduced by either party :as'to the aMliaLprofits I:ealized' by the defendant company, but it was evidently asstiriled:by.the master thlit ilie machines ,of the ;defendantwere:so near J.i.lre, <tboseof these other compamies in their material,form,and. cost of that the profits .of.defetidant on machines made.·and sold by umlilst have. been substantiallydhesameils the profits'Ii1ade by these other manufacturers. After,tbis I proof was ·furnished. do: behalf of the oomplainant, the defendantdecrlinl¥1to;'put'in any proof:as·:to ,what its p:trofits:actually were;8Jld. I thitikthe master ,was justified in ,assuming tdfla'ti ,the complainant's proof had' made a, sufficient case 'as td ,the. extent of the defendant's profits.'J'henlachinestlre so nearly alike that the presumption fairly and naturally,arises that each would furnish about the same measure of:profits to themanufacturer..(\.ftel'the ground for this presumption had beenlaid by, ,the, complainant?sproof, the de-; fendanf might have produced proofshowing what its actual profits were, and insisted that those alone furnished .measllreof the complainant's mcovery;but stand mute, and I do not think it can now complain 'of ,the. master's ,conclusion. 'Here,arecompeting Dlanufacturers, making the ,same kind of'machine, for the same market; and the natural: conclusion, is that, they<would pursue substantially the same business'methods, ,and the same profits. The case is quite analogous in the features . under; ;dii3cussion to Step1ufrl.8 v. Felt, 2 Blatchf.8S·.. Itis true thesupremecout:t;said in a recent case (Rude v. Weatcatt, 180 U. S. that "actqal damages must be aalculated, not, imagined, and'an'arithmetical calculation cannot bernade 'without certain' !data onwhichAo: make it. ",But here theinquiryis a8.tothe profits, and,whell.pro0fis adduced-showing what profits one manutacturer makes' ona maohine,it ,furnishes something more thana mere .imaginary basisforcalculatillgiwhat 'pronts,another manufacturer would, make on the aamekind '0£ machine, especially in localities where there could be no, substantial d.ifference inihe cost of labor or material. The witnesses produced by:the' complainant were"experts as to.the cost of making, anditheprofitsrealized from the: manufacture, of machines. substantially: like:defendant'sf ,and! their testimony, in: the absence of any ,cOuntervailing: p'l'oof from ,the, defendant; justifies, if it does not compel, the conclusion that these experts were:right..in their esti. mateiof the defendant's Iprofits,and ,tberilaster's report, shows that he . the lowestestiIbateoHhess as fhe basis 'df his findings., .The. eixceptions are each: and 'alIo!: themoverruled,and: the master's . report affirmed, and be entered for the amount of profits found b,the report. ',!! . '.. Ii ..
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:rUE STROMAA :
i599
STROMA.!
iMcCALDlN
et al.
'lJ. TUE STROMA.
(Df,strict, Ooon. ,So p. J:¥f!JW York. ,February: ,26. 1800.) , M.utITI!ffl
The charter of the British S. provided that the charterer was to. pro'videanjpay for all coal, 'oil; lltp,J.,ibeiants received by telephone an order for coal for the vllssel, which order they un,derstood to come from the former agents of the ship, though in fact it did dcime from them, nor from'the master. The master ,not previQusly !mowD, to. they furnished coal to the ,vessel. had preVlOUS v done bUSIness for the charf,erer. and they knew' at this time'tlia'ti he "had someihin'g 'tOlIo with the 8." The ooarterer introduced the master to libelants, alid gav"! dwectiQns about Tile master;also testified that he informed libelants' agent that charterer was to be responsible tor clmrgeB, thoug hthis notice, WB,s,4l,t,EM 'led.N,o eVidenc&, was, g,ivento sllow'that th,e , charterer' intended, to charge, tpe ship. Hel4, on libel' against the vessel for the value of the suppliell, that.libelants had sufficient notice that the charter,er to pay the bins,; 'and, as nothing, ishCllwed an;v implied a886lit Of the owners to the bind· , in&, of the ijba1sllq111d be dillllll88ed. , " ' ,
OF
TO I.niELL"l'Ts. ,,'
not
was
'was
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In Admiridty." ,Libel forsu;ppIies. Hobba & GiglYl'd, for Iibelants. Sewo/rdj'Da Costa &;, Guthrie;: fot' claimant.
BROWN;'J. On August:29; 1888, the libelants furnished coal to the steamer Stroma at pier 37, ,East river. They towed her, two days before,w'that pier from tile Erie basin; and 'on September 2d they towed her to sea, "'11hei1': bill of $67'3;50 not being paid, they libeled ,the 8teattrerth'erefor on her tetUfn'to port. The Stroma belonged to En'gHsh 6\vners, whiohad chartered herlf0r a year to one Capt. BrownLcomDlencing from the time of,herdischarge at the Erie' basin. By the terms onhe charter the maste'rlind chief engineer were appointed by the own"ers, but they were to be :paid' by the' chartet:er, who' was also to "provide , and pay fot all coal, ete; :The8tromahadbeen previously in this port. HeragenO! here, when' she was run'by the owner, had been Aus, tiri,Baldwih &00. Neither- ithey nor Capt. McFarlane, of the Stroma, had any previous acquaintance, with the charterer,Capt. Brown. Capt. "McFarlane was not previously acquainted with the libelants, nor had the latter preViously ftirnishedcoalortowage service to the Stroma;' but they had 'been acquainted with Capt. Brown, and had dealt with him , during two6r three years previous. Mr. James McCaldin .testifies that he received the order by teleph6ne about August 27th to tow the Stroma . from Erie basin to pier 37 , and then to sandia boai-load of coal along'side; that,on asking from whom too orderca'nle; ,he got answer, "Austi,n-Baldwin/' but did not recognize the voice; that, within 15 or 20 'minutes"aftetwards,'the master; Capt; McFarlane,carile into the office , about having, the Stroma towed j that he then' told, the captain that he 'haH received an order for cOal, and the eaptain answered; are ' ; ,I Reported
by Edward G.
oUheNew York bl\Ir.
