328
FEDERAL REPORTER,
vol. 38.
unqestionably. If the suhject-matter of this writing were political, having in view the almost unrestrained license in the use of defamatory epi; thets in political writing of almost every kind. except the very highest grade, and the fact that such epithets. which in the beginning are intended to denote ignominy and turpitude, become in the progress of political conflict, by a process of development, badges of honor and distinction, and are cheerfully accepted as such, I should say that this phrase did not come within the act of congress and was blameless, like "Abolitionist," "Black RepUblican," "Copperhead," "Carpet-Bagger," "Scalawag," "Rebel Democracy," "Confederate Brigadier." "Bourbon," "Free Trader," "Tariff Robber," "Mugwump," and the like. But the subject-matter of this writing is the return of a patent model of a car of some kind about which the writer was angry and ugly in his temper, and about which he WrItes "indecently,"" scurrilously," and with evident purpose to defame and injuriously reflect upon the conduct of his corrp.spondent. The commonplace and excessively vulgar style of the writing does not relieve it from its criminal character under this statute. One can be commonplace, and even vulgar, without being indecent and defamatory in the legal sense of the statute, as one may be either of these, or otherwise may violate the statute, without being commonplace or vulgar. That which shocks the ordinary and common sense of men as an "indecency" is the test, as it is also with the other descnptive terms ofthe act. Let the defendant be fined $25, and imprisoned until the fine and costs are paid. So ordered. NOTE. In the case of U. S. v. Olney, (W. D. Tenn., at Jackson, April term, 1889,) the defendant wrote upon the postal-card as follows, viz.: "Mr. Editor: I thought that you was publishing a paper for the wheel, but I see nothing but rotten Democracy. I am a Republioan, and a wheeler, and can take your paper and Democracy, and go to hell with it." The court was aske by the district attorney to charge the jury, as a matter of law, that the was "scurrilous," as laid in the indictment, but de· clined to so charge, and left it to the jury as a matter of fact to say if the words were "scurrilous, "upon a charge substantially conforming to the foregoing opinion, and the jury found a verdiot of guilty.-(REPORTEB.
IOU
MACDONALD f1.
McLEAN. 26, 1889.)
(O';"cuit Oourt, 8. D. Oalif07'nia.
P.ATBNTS FOR INvENTIONS - PATENTABILITY-N OVELTY-JOINT MARKING TOOL.
surfaces, having on its face a V-shaped blade with concave sides, for making the indentation or joint and con vexing its sides, and laterally-concaved sur· faces on its face on each side of and adjoining the blade, and continuing the curvature of its sides for convexing the edges and adjacent surfaces of the joint. the whole face being convexed in the direction of its length, and l\ handle and shank being bolted between the side pieces above the blade, which is also clamped between them. For many years before the application tools laterally concave and longitudinally convex on their faces were in general use, and produced, in substantially the same way, substantially the same ro-
an implement for marking and dressing the joints of cement pavements and
Letters patent No. 334.125, January 12,1886, to Malcom MacDonald, are for
MAC DOIULD tl. M'LEAN.
329
suIts, Held that, though the patented implement may be more perfect in lateral concavity and longitudinal convexity, and consequently do better work, the patent is void for want of novelty. In Equity. Bill by Malcom MacDonald against William McLean, for the infringement of letters patent No. 334,125, issued to complainant January 12, 1886, on application filed August 26, 1885. The claims are: "(1) .A. tool or implement for and dressing the joints of cement pavements and surfaces. haVing on its face a cutting blade or rib for making the indentation or joint, and lajierally·concaved surfaces on its face on each or rib for rounding or convexing the edgea side of and adjoining the and 'adjacent surfaces of the joint, substantially as herein described. (2).A. tool or implement for marking and dressing the joints of cement pavements and surfaces, having on its face a V-shaped cutting Llade or rib with concave sides for making the indentation or joint and convexing its sides, and lateraUy-concaved surfaces on its face on each side of and adjoining the blade or rib, and continuing the curvature of its sides, for rounding or conve.xing the edges and adjacent surfaces of the joint. substantially as herein described. (3) .A. tool or implement for marking and dressing the joints of cement pavements, haVing a rubbing face and a cutting blade or rib thereon for the joints, the face and rib being rounded or con vexed 1fi the direction of its length. substantially as described. (4) A tool or implement for marking and dressing joints of cement pavements and surfaces, having on its face a cutting blade or rib with concave sides for making the indentation or joint and cOD\'exiJlg its sides, and laterallv-concaved surfaces on its face on each side of and adjoining the blade or rib. and continuing the curvature of its sides, for rounding or convexing the edges and adjacent surfaces of the joint, the whole face of the im.plement, includiug the blade or rib, being rounded or convexed in the direction of its length, substantially as herein described. (5) A tool or implement for marking and dressing the joints of cement pavements and surfaces, consisting of the angled pieces, a, the blade or rib, B, and the handled shank, d, both blade and shallk being clamped between the angled pieces, substantially as herein described. (6) A tool or implement for marking and dressing the joints of cement pavements and surfaces. consisting of the angled pieces, a, having laterally-concaved faces. the V-shaped blade 01' ri b, B, clamped between the angled pieces, and projecting below their faces, and tlle handled shank, d, clamped between said pieces, substantially as herein described. (7) .A. tool or implement for marking and dressing the joints of cement pavements and surfaces, consisting of the angled pieces, a, having laterally-concaved and longitudinally-convexed faces, the V-shaped curved l>lade or rib, B. haVing concaved sides. and clamped between the pieces, a, and the handle, D, and the shank. d, bolted between said piecE:'s, substantially as described." Finlayson &- Finlayson, for complainant. Graves &- 0'MelvfmY and Ohapman &- Hendrick, for defendant. Ross, J · The bill in this case is founded on letters patent issued to the complainant for a joint marking and dressing tool for cement pavements. It charges infringement by defendant, and seeks to have him .enjoined from further infringement, as well as to recover damages for past infringements. Besides denying any infringement, the defendants in his answer, for the purpose of avoiding the patent, alleges: First, that the complainant was not the original inventor of any material or sub-
330
Fl\lDEaAL REPOaTER,
voL38.
.stantial .part of the tool described in the patentq.nd bill, but that the same was invented by one Magner, of Oakland; nnd, secondly, that It tool similar to complainant's patented t061 had been in pubUe use, and on sale in the open market in the state of California, more than two years before complainant his application for a patent; that said tool had been for more than two years before said application publicly manufactured and sold in the cities of San Francisco, Los Angeles, and Oakland, and was publicly used in said cities by certain persons named in the answer. Voluminous testimony was taken, and a large number of exhibits introduced in evidence. I have examined the testimony and exhibits with care, and have reached theconclusitm that the patent is invalid for want of novelty. No useful purpose would be served by a review in detail of the evidence. It is sufficient to state the grounds of my decision. If the patent is valid, I have no doubt from the evidence that the defendant infringed; but I think the evidence clearly shows that tools similar to complainant's patented tool were in public and general use in Californiamore than two years before his application for a patent. What is claimed by the complainant as patenta ble is the latfral concavity and the longitudinal convexity of the face of the tool. Now, many of the numerous tools introduced in evidence, and which are shown to have been in general use in the t'rade for many years prior to complainant's for a patent, areIPade upon precisely the E;ame principle, 8Ild, as the evidence shows, produce in substantially the same way substantially the same results. The face of them is concave laterally and convex longitUdinally, and they mark or joint the cement, to prevent cracking in the process of drying, and round or dress the edges to prevent chipping, just as complainant's tool does. It may be that comof perfection in its lateral concav·plainant's tool attains a greater ity and longitudinal convexity, and consequently does better work than any of the others, but that is not sufficient; the established doctrine being that" a change only in form, proportions, or degree, the substitution of equivalents, doing substantially the same thing in the same way by 'substantially the same means, with better results, is not such invention as will sustain a patent." Smith v. Nwhols, 21 Wall. 119. The bill must be dismissed, with costs to defendant, and it is so ordered.
MOORE
et at.
11. HILL
et til.
(Oircuit Oourt,lv. D, Tenn688ee. January 5, 1889.)
1
, The master of a vessel has no power after arrival at the port of destinatfon to sell that part of the cargowh.ich has been damaged by fire while under w,ay, and, a facto,r who sens,' as his agent, while ignorant of the wrong,doing. . and applies the proceeds to the payment of advances made to the master, is liable to the consignor for a conversion of the goods to his own use. pf/I' JACKSON, J. HAMMOND,
SHIPPING-THE MASTER-SALE OIl' DAMAGED CARGO.
J. Pf/I' contra.
MOORE v. 2.
HILL.
331
FACTORS'AND BROKERS-SAtE OF GOODS FRAUDULENTLY OBTAINED-CONVERSION. .' , '
If one having the custody of gQods for carriagefrandulently appropriate, them to his own use by consigning them i,n his own name for sale to a factor who makes ,advances upon' them, the factor is liable for conversion to the rightful owner if he sell them ancI retain the advances out of the proceeds. although he be entirely ignorant of any want of title in his customer. and wholly innocent of any wrongful intention on his part. Per JACKSON, J.
S.
HAMMOND. SAME.
J., per contra.
·
Cotton shipped by a vessel for transportation partly by river and partly by rail, was burned en route on the river, so that it became an indistinguishable mass. as between its owners and shippers. The master, on arriving at the destination of the vessel. consigned the burnt cotton in his own name, without disclosing the facts, and acting as if he were the owner, to a factor for sale, draw:ing drafts against it which were paid by the factor as advances on the bill of lading. in ,the innocent belief tlJat his customer was the rightful owner. After the cotton was sold, and the proceeds collected by the factor. but before the credits were actually entered on the books, the rightful owner gave notice that he owned proportional part of it. and demanded the proceeds, which being refused. he brought this suit for conversion. Held, per JACKSON, J., that the factor was liable. and per HAMMOND, J.,that he was not. l
a
At Law. Metcalf &: Walker, for plaintiff's. Hill &: Wilkerson, for defendants. Before JACKSON and HAMMOND, JJ. JACKSON, J. This suit is brought to recover the proceeds of a certain lot of cotton as the property of the plaintiffs, which it is claimed was wrongfully cOllverted by defendants to their own use. There is no controversyor dispute as to the material facts of the case, which are the following: In December, 1885, the plaintiffs were the consignees and owners of 79 bales of cotton, which were shipped to them from points on the Tennessee river near Huntsville, Ala., by the steam-boat Myra, to be carried to Chattanooga" and from there reshipped by way of the Cincinnati Southern Railroad to the plaintiffs at Cincinnati, where they resided and did business. There was also upon the steam-boat on this trip another small lot of cotton (about 18 bales) in additiOil to that belonging to plaintiffs. Before the Myra reached Chattanooga, her port of destination, so far as plaintiffs' cotton was concerned, a fire occurred on the boat, which damaged a portion of her cotton cargo, by burning off the bagging, obliterating the marks, and scorching the cotton in such a way as to render it difficult, if not impossible, to separate or distinguish such damaged portion as between the plaintiffs and the owners or consignees of the small lot. On the arrival of the Myra at Chattanooga)
A factor with whom cotton is stored for sale, may, by custom, make advances on it, and thereby acquire a lien which.is subordinate only to legal rights, or to paramount equities of which he has notice. Barnett v. Warren, (Ala.) 2 South. ReV' 457. .cotton factors who exercise unauthorized control over, and make an unauthorized dispos!tionof,cotton consigned to them, become liable in trover for its conversion. Galbreath Vi Epperson, (Tenn.) 1 S. W. Rep. 157. Factors who receive and pay for stolen cattle. not' knOWing that they are stolen, and afterwards sell them, are liable to the purchaser for their pricel.-.,0n their being reclaimed by the true owner. Edgerton v, Michels, (Wis.) 26 N. W. lWp. 748.
382
FEDERAL EXPORTER,
vol. 88.
only 45 of the 79 bales consigned to plaintiffs could be clearly identified. These 45 oales were, by warehousemen at Chattanooga, duly forwarded to and received by plaintiffs. The cotton damaged by fire and water, embracing 34 bales of plaintiffs' cotton, and 18 bales belonging to other parties, was first stored in a common mass in a warehouse at Chattanooga, and was shortly afterwards shipped by G. A. Samuels, the master of the Myra, to the defendants, Hill, Fontaine & Co., cotton factors and commission merchants at Memphis, Tenn., to whom said Samuels ordered the railroad bills of lading 101' said 52 damaged bales. On the arrival of the boat at Chattanooga no notice was given plaintiffs of the fact that 34 bales of their cotton were damaged, and its marks obliterated; nor were they informed of the fect that it had been stored in a warehouse at Chattanooga; nor were they asked to give instructions in reference to its disposition. They had no knowledge or information that said Samuels would or had shipped the cotton to the defendants, and never consented to his so doing. In making this shipment of said 52 damnged bales of cotton to the defendants, Samuels took the bills of lading therefor in his own name, and in forwarding to defendants the bills of lading for the same, with his blank indorsemEJ'nt thereon, he did not disclose to them the facts in connection with the cotton. He made the consignment to defendants not as master of the Myra, or in any agency capacity, but in his own name, as the owner of the cotton. The defendants were en.tirely ignorant of the plaintiffs' interest in the cotton, nor was there anything in connection with the shipment to lead them to doubt or suspect that Samuels was not the owner, as he assumed to be in making the consignment. In a letter inclosing the bills of lading, and advising the defendants of the shipment, Samuels notified them that he had drawn certain drafts on them to the amount of $1,348.51. He, however, between 5th and 10th of December, 1885, drew drafts on defendants to the amount of 81,448.51, which were duly honored and paid by them on and between said dates. The cotton was received by defendants at Memphis on orabout December 12,1885. In order to put the cotton in condition for sale, it had to be repacked, and in the repacking it made or turned out only 48 bales, which the defendants thereafter sold for account Qf said Samuels, with whom defendants opened an account current on books, in which account they charged said Samuels with the amount qf his several drafts as paid, together with the balance of interest him, amounting December 7, 1886, to $10.20, and credited him with net proceeds arising from the sales of the cotton. The net proceeds thus realized from the cotton by the defendants, with the dates of sales and the dates of credits given Samuels therefor, as appears from a statement furnished by defendants, were the following, viz.: December 31, l885, 3 bales cotton sold, net proceeds, $93.24, credited to Samuels January 18,1886; December 31,1885,4 bales cotton sold, net proceeds, $121.22, credited to Samuels January 13, 1886; January 2, 1886, 14 bales cotton sold, net proceeds, $439.76, credited to Samuels J nnuary 14, 1886. January 4,1886,4 bales cotton sold, net proceeds, $115.99, credited to Samuels January 15, 1886; January 4,1886,3 bales cott<;m sold,
MOORE II. HILL.
833
net proceeds, $108.29, credited to Samuels January 16, 1886; January 13, 1886, 15 bales cotton sold, net proceeds, $429.59, credited to Samuels January 22, 1886; January 14, 1886, 1 bale cotton sold, net proceeds, $35.14, credited to Samuels January 26, 1886; Jauuary 15, 1886, 3 bales cotton sold, net proceeds, $85.24, credited to Samuels January 25, 1886; March 6, 1886, 1 bale cotton sold, net proceeds, $26.60, credited to Samuels March 6, 1886. The plaintiffs, under date of January 13, 1886, wrote the defendants as follows: "Messrs. Hill, Fontaine & Co. Memphis, Tenn.-DEAR SIRS: We learn that 34 bales of cotton shipped to us on the steam-boat Myra, and which were damaged by fire and water, have been sent to you, and are now in your possession. We beg that you will take notice that we hol(\ B. L. forthis 34 balllS, and that the cotton was wrongfully diverted without our consent or knowledge; and that we shall hold you accountable for the same." This letter, as stated by one of the defendants, Mr. Fontaine, was received on the 14th of J Rnuary, 1886. The defendants failed to reply thereto, and it was followed, early in February, 1886, by a formal demand upon them for the cotton or its proceeds. The defendants declined to recognize the plaintiffs' right to the cotton or its proceeds, on the ground that they had made advances to Samuels in the bona fide belief that he was the owner of the cotton, and on the credit of the bills of laditigwhich he indorsed to them, and of the cotton which he consigned to them; that these advances to Samuels having been rnade'by them upon the security of the cotton so placed in their hands, and before they, ,had any notice or knowledge of plaintiffs' rights in or to the cotton, ,they had, the right to retain it as against the plaintiffs, and apply the proceeds thereof to reimburse themselves for the advances so made said Samuels. It appears from the foregoing statement that up to January 14, 1886, when defendants received plaintiffs' letter notifying them of their claim tothe cotton, only $121.22 (being proceeds of 4 bales cotton sold December 31,1885) had been actually credited by defendants to said Samuels.. The other credits were given said Samuels on and after the 14th of January, 1886. It admits of no question, under the evidence, that plaintiffs' 34 bales of damaged cotton went into the defendants' hands in the mingled lot of 52 bales shipped to them by Samuels, which, upon the repacking, made 48 bales, which defendants sold, and appli the proce{lds thereof as d abovestatedj and the plaintiffs therefore claim of the defendants such proportion of the entire proceeds as the quantity of cotton belonging to them bore to the whole. In other words, they claim 34-52 of the whole proceeds, .being $951.35, with interest. Under the foregoing statement of facts and claims of the respective parties, the single legal question presented for considerationand..dedsion is whether plaintiffs are entitled to recover from defendants the amount of said proceeds arising from the sale of their share or proportion of said cotton. The plaintiffs' right to recover is resisted on two distinct grounds: First, it is insisted on behalf of defendants that, inasmuch as no particular 34 bales could be selected out of the damaged lot of cotton on its arrivlll at Chattanooga, and be forwarded to plaintiffs as their own cotton,