m
BE LAWLER.
233
1ft re 1.
LAWLER.
(Oircu«t 0000 N. D. Georgfa. ARMY AND NAVY-ENLISTMENT.
October 28, 1889.)
A petition for discharge on habeas corpU8 of one arrested as a deserter from the army alleged that petitioner was under 16 years when enlisted; that he enlisted through the fraudulent representations of one J., the recruiting officer; that his father's written consent was obtained by means of such representations j and admitted the desertion while still a minor. The return denied the fraud, and presented the written consent of petitioner's father to his enlistment, and petitioner's sworn statement that he was 20 years and 6 months old at enlistment, and alleged that J. was a private, and not the recruiting officer, who was one P. Held. that, as the return was neither demurred to nor denied, it must be taken as conclusive as to al1 the facts therein set forth. '
2.
SAME-EvIDENCE.
Evidence of petitioner's relations, that he was under 16 years when he enlisted, is not sufficient to "establish that fact against the sworn statement of the petitioner and the record in the family Bible, showing that the birth of petitioner, as recorded, had been changed from 1870 to 1871, and the record of the birth of a younger'siliter in 1871 entirely erased. ' :" corpu8.
Appeal from District Court. Habeaa Blalock & Birney, for relator. S. A. Darnell, for respondent.
PARDEE, J. A. C. Lawler filed a petition in the district court of this district, setting forth that he is a citizen of the United States and of 'the state of Georgia; that he is forcibly and illegally detained and deprived of his liberty in the United States barracks, at the military post in the city of Atlanta, by one Henry H. Clawson, in command of said by virtue of a pretended claim of authority of said Clawson, as agent of the United States, to hold petitioner upon the charge of being a deserter from the army of the United States. The petitioner further alleges that some time in the month of October, 1886, he enlisted as a private in the United States army,at the recruiting station in Atlanta; that at t.he tiIne Qf said enlistment he was a minor under the age of 21 years, to-wit,of the age of 15 years and 6 months, and that therefore said enlistment was without authority oflaw, and contrary to law and void; that he was induced by fraudulent representations to enlist as above stated; that therewas a written consent to said enlistment by petitioner's father, but that said written consent was obtained by fraudulent representations made by one Hayes Jemmison, recruiting officer, and agent of the United States t to petitioner's father; that said fraudulent representations, both to petitioner and his father, were to the effect that petitioner would be sent regularly to school, and would have other advantages in the army which he could not otherwise obtain j that all said representations proved to befalse, and were known to said Jemmison to be false when he made them; that afterwards, on the day of April, 1887, and while still a .minor, petitioner left the said army, and has not since returned, and that. on the 27th day of September, 1889, petitioner was arrested in the city of Atlanta, and is now held illegally and against his will. Petitionerprayed for '8; 'writ ()f habeaa corpus, which was issued and served, and.
thereupon the commanding officer, Gen. Jackson, made return substanwas arrested asa deserter from tially as follows: That the the United States army, and is n,ow held as such awaiting trial, which will be had as ,soon a odurt-martial' can be convened and organized for that purpose; that respondent denies all the petitioner as to his"age" and states that'in hisbeliefbe is of lawful age, and regularly nO fraud was;pf$.c1jiceclto obtain or petitioner's consentto the enlistment; tbat.recruits in the armyhil.ve the privilege of and lletitiqper'could have enjoyed this advantage ifit,did not.conflict with his other ,duties as a solwhere not in conflIct With other dutIes; that he does not know what,other advantnges to. in, his,Petitio,n,; lI:p.d that recruits in the army do ,possess:other others not in the service. Redescriptive list or enlistment papers' uponwhlCh petItioner enterEid the United States. army. Said papers show that at Hiram, Paulding county, Ga., on October 5, 1886, J. P. Lawler,as the fathero,f.Albert C. Lawler, gave his consent in writing for A. C. Lawler to join the United StatesarmY.1,Battery B, second artillery; that Albert C. Lawler filed a sworn. statement onthe6thofOotober, 1886, stating that he was born in Randolph county, Ala.; that he i was .20;yool'$ .. farmer;: that. Jle voluntarily, en,listed Oetober,6, soldiedn the armyoftha United States for :five years,i :unaess' ,SP6ner discharged by ,the proper tlutbority; that he agree<! te,cpept lsuch bounty, .paYI;· rations, Qr clothing: l\S. established by ,law; that said, Lawler also ,took.tbe.:Qe.th of allegiance. and swore to obey ,auperiora, and: .the rules and articles . the;ordeJ'$ s'Wornto bysnid, A.. C. Lawler be.:foreCharlesF,'·Parker. second second auillery, recruiting ofthe, of the surgeon tha,t the ap'ipliea.1ilJt WAS free f110m bodily, defector. mental infirmity I and the official .. Parkerj'sec()Jldlieutenant,secondlirtiHery"recruit:, ing lofficer j :to,the that he. inspected. said C. Lawler ViOllS:tO his,enlistment;tbat: be wllS's6ber when enlisted; that to the best ,,of,hisJlidgtnent..,and belief he was of lawful age;, and that heobserv:ed ,the other. rulesand.requil'ementain,regal'd to enlisting soldiers. Saidre·turILfurther shows ,that Jemmison, mentioned in thepetition, was:at the time of the enlistment of Lawler a private in theal1llY Earkar, .of,tpe:Unitad States, and that tberecruiting officer was .tsecond lieutenantj secolfd: ,'artillery. ,This return wa.s, neither demurred )00 nordel'liedJ' "IJ pon the case, .as' made by the petition and return, the <iC8.se went ,to trial in the di$tricticourt. ,On· the trial, as it by the bllief ofevideJlloo, and ,bill of exceptions'l ,the 'petitioner, by his coun,isel,asked, leave to "ll.11lend· his by withdrawing frum it tbaaUega.J non that' there 'wase. ,written cobsent oLthe petitioner's father tobia enproposed .The dis'itrietl.court,.. the evidence, gave judgment. dischar.ging the writ; .and" :remanding" the petitiouer' to.. the ,custod,of·tb.erespondent.
IN'RE LAWLER.'
235
Thereupon petitioner applied for and was allowed an appeal to this court. In the order aJlowingthe appeal, no provision ''Was made for the custody of the petitioner pending the appeal. The case has been argued at some length before the circuit court, mostly in regard to the rules of evidence in proving the contents of written papers, and upon the refusal of the district court to allow the amendment withdrawing the allegation of written consent by petitioner's father to his enlistment. It does nQt seem necessary to pass upon these questions. As the return of' Gen. Jackson, the custodian of the petitioner, was neither demurred to nor denied, nor in any wise put at issue, it is to be taken as conclusive on the facts therein set forth. In this view of the case, no issue is left except the single one as to whether or not the petitioner was under the age of 16 years when he enlisted. If he was over the age of 16 years at that time, his enlistment, according to the return, was regular and valid; if he was under 16 years of age, the enlistment was void, whether the father consented in writing or not. On the question of the age of. the petitioner at the time he enlisted I have carefully considered' all the evidence, and it fails to satisfy me that the petitioner was under 16,.years of age when he enlisted; but, on the contrary, satisfies me that he was over that age. On the side of the petitioner is the evidence Of his father, mother, and himself, and his brother, no one orwhom testifies withcertainty, and as having good and sufficientteasons for certl'!-inty. On the other side is the sworn declaration of petitioner when he enlisted, the written consent ofthefather, the certificate of the recruitingofficer, !lnd what family record waspreseilted on the hearing of the case in what purports to be the family Bible. The record in this Bible shows that the birth of the petitioner was originally entered April 20, 1870; that at some time since the original entry the record has been tampered with, an attempt made to erase tbe"O" in 1870, !l0d insert thefig1;lre "1;" and that the birth of a younger sister, occurring some time in 1871 or 1872, has been entirely erased, in order, apparently, that ,the record might ,not show too many children born between 1871 and 1873. The conclusion left upon my mind is that the claim that the petitioner was under the age of 16 years when he enlisted was invented subsequent to the arrest for desertion, and that the petitioner's evidence has been somewhat made up to meet the necessities of the The judgment of the district CQurt in the case will· be affirmed.
(,
J'EDERAL REPORTER,
vol. 40. Co.
DEERING ".
MCCORMICK
HARVESTING MACH.
,. WINONA HAIWESTER WORKS
et al., (two cases.)
(Oircuit Ooon,
November 80, 18S1l.)
't.
PATENTS 1I0B INVENTIONB-HABVESTERS-INFRINAEMENT.
The fifth claim of letters patent: No. 191,264. dated May 99, 1877, for improved harvester, being a combination of toothed arms, a slotted receiving platform, and fixed springs, with the characteristics described in the patent. and co-operating for compacting the gavels, is not infringed by a harvester with a compressor in alignment with the, packers, and them, near the tail of a stationary receiving platform, working as a resistant to compact the gavel, the platform having one Wide slot, through which the teeth move the wisps against overhanging rods. Letters patent No. for in harvester machines, so that the grain may be freely deliverea by means of a swinging side elevator, conveying grain, IItraightened, to the :receiving table, so that cal/. be bound at the middle, are not infringed by a harvester with a swinging platform, and an elevator which drops the grain on an inclined bOard, with slots through which packing arms operate to compact the grain, al/. endless apron, which is not connected with the harvester elevator. ,',' ,'.
,I. " .
SAME.
;a.'SAME-PRIOR STA'I'E 011 THE ART.
The t.wenty-first claim of letterspa.tent No. 266;918, r6la.tl.ng to mechanilim for compressing the bundle of grain just before tying, in connection with a spring link for telieving 'the binding mill' from strain, and breakage when the grain is no longer compressible, is not.tnfringed, In view of the former state of the "art, by a device fur l1 isbing an ,elastic mllling of the compressor, which is not of , {: the pecUliar construction set forth in tile claim. I., . '
,
J.' SAME-ANTICIPATION.
In view of the prior state of the, art olaims:Nos. 8, 4, 9, and 10, under letters pat· , ,. eut No. 272,598, dated February 20, 1888, whereby an grain-binder regu 'lates the position of the band in the gavel so as to place the gavel in its proper position, to the length of grain,without the attention of the operator, must bl;l Umited tp the peculiar construction of mechanism as set forth in the spec, illcatiousby which this result is obtained. o
'
e. SAME. . Letters,
' The combination of the swinging butt-adjuster, arms, and a board pivoted to the , adjuster, as set forth in claims 20 and 21 of letters 272,598, is anticipated by the , , "'Heller Butt-Adjuster, " used on harvesters in 1878 or 1880. No. 251,147, dated December 20, 1881, describing,a mechanism for i"raising, loweril1g, and fastening the grain platform of a harvester, is anticipated by a issued to one Bacon in 1l::l3l:l for lowering, fastening, and raising windows. , .' , "
Tn Equity. Bill for infringement of patents.
B,a.nning Banning and B.F.Thw'ston, for complainant. Parkinson Parkinson, for M9Cprmick Manufactul'ing DyrfJnjorth DyrfJnjorth, for the Winona Harvester Works and others.
NET,SON, J. Three suits are brought by William Deering-two against the Winona Harvester Works and others, which are consolidated, and the other one against the M.cCormick Harvesting Machine Companyfor the infringement of certain letters patent for improvement in harvesters, or harvester binders. They are heard together. In controversy, involved with the McCormick Company letters patent No. there 191,264, issued May 29, 1877, to John F. Steward; No. 223,812; issued January, 27, 1880, to William Ii'. Olin; No. 266,913, issued October 31, 1882; also No. 272,598, issued February 20, 1883, to John
DEERING fl. M'CORMtCE: HARVESTING MACH.
co.
237
F. Steward. The same patents are involved in the suit against the Winona Company, and, in addition, letters patent No. 278,639, issued May 29, 1883, and letters patent No. 301,190, issued July 1, 1884, also letters patent No. 251,147, issued December 20, ]881, to John W. Webster. The first two patents involved in the Winona Company's suit, and not in the McCormick case, relate to the "knotter" by which the cord is held around the bundle of grain; and counsel consent that a decree may be entered against that company for an infringement of these patents, so that they are eliminated from this controversy. The complainant and the McCormick Company are extensive manufacturers and competitors throughout the grain-producing regions of the world, and by their efforts have stimulated the inventive genius of that class of persons interested in the improvement and development of practical machinery for cutting and binding grain. The Winona Company was a new 'enterprise, inaugurated under the superintendence and management of men formerly in the employ of the complainant, and mapufactured a machine in its general features and operation like those introduced and sold by the complainant, and also by the McCormick Company. Steward Patent, No, 191,264, dated May 29, 1877.-DeJerl8eB.; No infringement, and want of novelty and patentability, and eBtoppel. It is remarkable that no machines are in use, at the present time, manufactured preCisely according to the specifications, claims, and design of this patent; and, although the complainant is the owner, he does not construct the machine sold by him like the drawing of the patent. The charge is made that both defendants infringe the fifth claim of this patent.. This . claim is as f o l l o w s : ' "The combination of the toothed arms, p, slotted receiving platform, H, and the fixed spring arms, u, '0, for compacting the gavels, SUbstantially as specified." It is necessary to a proper understanding of thi'3 claim, and the devices involved, to look at the mechanism of the machine described, and for, which the patent was granted, and its purposes, in the light of the existing state of the art. This patent is denominated "Improvement in Grain-Binders." The patentee, in his description, says: "I have invented new and useful improvements In harvesters. The object of this invention is to improve the construction of grain harvesting and binding machines; and its nature consists ",. '" in providing a device '" ... in providing devices for compacting the grain ready for binding; for retainillg the cut grain in proper position at all times while being forced into the binding wire; and. in the several parts, and combination of parts, hereinafter set forth and claimed as new." The claim, in connection with the drawings and model exhibited, calls for a slotted receiving platform, toothed a.rms arranged to pass through it and protrude, so as to engage and force forward the flowing grain, and spring arms fixed directly opposite the slots in the platform, operating as resistants to the arms moving forwarq through the slots, and thus the packers or arms, with the springs directly opposite,,/loctiI;lgas resistantll, compact the gavel while it.is forml'ld,.anllfinally it through
/
and under upon by the needle arm, ana bound. When Steward applied for this patent he was familiar with the operation of a binder, then In the rilarket, on the Gordon or McElroy machine, and alleges that the combination oHhis fifth claim in the patent was the result of his personal' experience in the field, ·and that the 'necessity of such irnprovementwas then demonstrated. ]n order to make a machine effective as a binder"the wisps of grain must be formed into a gavel of proper size to make the bundle. .This could only be aCcomplished by some device which would press the wisps of grain together, .and finally hold them, until the binding mechanism tied the bundle. In 1868, Carpenter received letters for "improvment in grain-binders," and his invention related to improvements for conveying the grain from the platform to the binding mechanism, and there compressing it into' a bundle by means of compressor rods and the revolving rake. The CO,Ill pressor rods and the teeth ofthe revolving rake perform, to some extent, the sallie duties as the teeth, p, and the spring rods in the Steward patent·. The. rods art: pivoted. atoqe end only, and they operate as resistants in an opposite direction to the teeth on the revolving rake. They are held down by aElprinp; pawl, which tends to make them rigid, so a.sto hold the bundle peing .formed by the wisps brought up by the The rods spring back. when released Qy the pawl at the the bundle is carried over the shaft wbich carries the .,binder arm', " . . , $9 the$torle patent, 1869,has I!prlng rods under which, on the plat'forni, the wisps are, raked, and these spring rods tend in a slight degree to compact the gavel as it forms; and keep the grain down. In the Whitney ,machine, 1875,. overhll,ngiQg curved. rods, called liE," drop "qown, anp, as the are brought along by the rake teeth, the rods operate as resistants to compact the gavel. The Gorham machine was patented about this time, and the q()rdon one year earlier,-called, "Gorby counsel. The latter had overhanging spring wires fasto arock shaft, and their function was to compress the gavel a.nd it until ,lJ. bundle was rendy to be bound. As in the StorIe and the .'Whitney, the bundle was formed, by the revolving rake teeth, calle<1 ,ljla,rIJ:lS" or packers," and the rods acting up.on the grain on the platform. the Gord?nmachine the spring rods were not placed directly opposite and therewasll.difficulty in the prllctical operation <,oUhe machine in the field; and,as I understnndthe witness, this diffiwas due to the form of the overhanging rods, and the fact that they ''vere notinllependent resistants. Steward then, in his patent, provided device for, compacting the grainforhinding. He changed the shape of ;<the Gordon 'spriligrods, and fastlmed them to a crbSs·bar, not a rock so each' would hang directly opposite to a slot in the platform, lthrotrghwhich a tooth upon the revah-ing rake, or, as described in fpa.teht;tooth of the sliding bat, These rods hfld independent springs, and opetate<ras resistants independent of each other. 'Hemad'e platfotm,!I, tilted by a crank shaft, anditsftmction is partietiIMlydeseribedin:·· thespecifica.tions of the patent. . .UiS d'esctibed
DEERING
t/. J4'CORMICK
CO.
239
, as slotted,; and the purposes for which this plntforn) is introduced could not be accomplished unless it was slotted, and was capable of being tilted; so then, whenever the receiving platform, H, is spoken of, it must be understood that reference is made to a receiving platform, described in the patent as slotted, and firmly attached to a shaft or journal bar, connected with crank and other devices, so that the platform, H, shall be tilting, and can be raised and returned to its proper position, as appears in the drawings accompanying the patent. The specification requires the receiving platform,' H, to be constructed in this manner; and when the patentee introduces in a combination claim the platform, H, whether it be designated as a slotted platfoHn, or a tilted platform, reference is made to the platform particularly described in the patent as an element of the combination. My construction of the fifth claim, therefore, is, that it is limited to a combination. of, the toothed arms, receiving platform, slotted and tilting, and the, fixed springs, each ·having the characteristics designated in the patentjand co-operating for compactingthe gavels in the peculiar manner described in the patent; ;combination of the same a,nd the chum is not elements possessing the essential characteristics of the claim, and co-operating in the same way,for the same purpose. The defendahtsnse no 'suchcombiriation.'They have a compressor in , alignment with the packers; and below them, near the tail of thel'eceiving platform, and working as a resistant'tit compact and press the gavel. The grain in their machine' passes from the elevator OVer and onto It receiving platform, with one wide slot,throngh which the packers or teeth 'move forward the wisps against 'and under two wires or rods overhanging,' and coming down to that part of the platform, which {lrops and permits thehundle, when tied, to' fall to the ground. The . receiving platform is not tilting, but stationary. ; The rods do not hang down, and operate as compactors and resistants, opposite the slot through ,which advance in alignment with them, buta,re located at each side of it, and continue to bear ,\lpon the gavel, andpl'event the ',straws of. grain from slipping down, while the gavel is compacted or ." pressed'between the teeth and the compressor. This is n6tthe combinatiOn of the fifth clliim;inthe Stewardpaten't, of elements therein , desop-be'd, ,.co-operating Tor the "purposes 'designated; and defend"ants do not infringe such claim, as charged. It is unnecessary to consider the other defenses.
a
Olin No.' 223,812.-Dijenses: infringement, want of novelty .and patentability, and equitable estoppel. , The defendant the Winona Com, pany ill charged with the' infringement of all the .six claims of this, patent, and the, Com ill charged with the infringe- mentof all'the claims except the fourth. The patent issued to Olin for , in harvesting machines," and the nature of the invention, is stated as follows: : "In Illachines grAin is upon a \'D eleyatol\aIJ,d
240
FEDERAL REPORTER,
vol. 40.
erer to the binders, or an automatic binder, it is desirable that there shall be no in the flow of the grain in its passage to its place of delivery; that the butts of the grain shall be carried up parallel, or nearly so, with the head!! of the grain, so as to deliver the grain in proper shape for binding purposes; and that the grain shall be delivered to the receiving table so that it can be bound at or neal' the middle. The object of this invention is to provide devices for attaining all these results, and it consists in interposing a roller between the lower end of the elevator and the inner end of the grain carrier. to facilitate elevating the grain., and prevent clogging at that point, and prevent the grain from being carried down·.or falling through between the elevator and carrier;-in prOViding a belt or chain [called · Q' in the patent] at the grain side of the machine for elevating the butts of the grain, supported on a swinging bar, so that it can be adjusted to the length of grain being elevated, to deliver the grain so that it can be bound at the middle; in devices for operating and adjusting the elevator for the butts; in the peculiar Construction of the cover; in arranging and operating the belt for the butts so that it prevents any clogging. by short grain at the heel of the sickle; in arranging the device for elevating the butts so that it will bear against the butts of the grain, and crowd or move tbegrain back on the elevator towards the center. for the purpose of.straightening the grain in its passage up the elevator, and delivering it so that it can be clasped or bound near the middle, to facilitate the ease of binding." . The dmwings and model exhibited show and describe two rollers between the grain carrier, or receiving platform, of a harve!"ter, and' an .elevator which carries the grain over the drive-wheel, and a supplemental . swinging side elevator or belt for elevating the butts, arranged so that it will bear against the butts, and crowd the grain back on the main elevator towards the center, and at the same time the grain as it passes up, and delivering it so that it can be clasped and bound near the middle. The peculiar means of adjustment of the swinging elevator, and the mode of cOlllbining it with the harvester elevator, and the devices and mechanism used, are set forth at The claims are: (1) "In combination wHha harvester elevator. a sWinging elevator pivoted at its lower end, and suitable devices for shifting its upper end, whereby the SWinging elevator forms a means the butts of the grain, and delivering grain of different lengt.hs at the same point, substantially as specified." . (2) "The adjustable elevator or Q, having its pulleys or wheels arranged with their faces parallel with the upper surface of the main elevator, in combination with such main elevator, for carrying the buttsup even with _. the heads, substantially as specified." (3) "The adjustable elevator or belt, Q, having its lower end, c, advanced in front of the line of grain travel, and arranged as described in relation to the main elevator, substantially as and for the purposes set forth." (4) "The pivoted frame or bar, e, supporting the elevator, Q, in combination with the sliding bar, t, rod, n, and lever, 0, for adjusting the upper end of the belt, llubstantiaBy as and for the purpose speci'fled." (5) "The shaft,W, wheel, h. and frame, i, in combination with the gear·wheel, g, and pUlley-wheel, d, fol' driving the elevator and keeping the - gear-wheels, g, h, in gear, substantially as specified." (6) "The elevator or . belt, Q, in combination with the inclined boal'd. R, aud main elevator, sub. stlLUtiaBy as and fo:! the purpose set forth." In the operation of harvesters, it was -found that the straws which have been cut do not fall so as to lie evenly upon the moving receiving
e.
H'CORMICK HARVESTING HACH.
241
platform. Some of them, partidularly in short grain, assume an angular position; the heads of grain, when reaching the elevator, being in advance of the butts, so that, when carried up, the swath of grain is not presented to be bound at or near the middle. The straws in the swath move along up the elevator i" the angular position assumed when they reached it. In 1875, to overcome this difficulty, Elward was granted a patent, in which he placed a short endless apron, set at the inner edge of the receiving platform, with its rear end nearest the elevator, obliquely to the line of cut, so as to engage the passing butts of grain, and move them backward prior to delivery to the elev'1tor. He says this apron may be operated either by the friction of the passing butts, or it may be given a positive movement. Green, also, in 1877, obtained a patent for improvement in grain-binders, and in it he has a grain-guide. "which is pivoted at the lower front corner of the elevator frame, on the grain side thereof, and which is provided at its upper end with a handle convenient to the driver sitting in his seat." The object of this guide is to move the butts of straw backward, so that the elevator will deposit the short grain into a receiver at its upper end, to be delivered to the compressing deVices in proper position for being bound at or near the middle of its length. He claimed (No. 19) "an adjustable grain-guide, T, combined with a grain elevator in a harvester, substantially as described." As early as 1853, Watson and Renwick had a grain-lJinder patent, in which the grain was elevated to the binding apparatus" by means of a series of shifting endless bands, which, without stopping the machine, could be adjusted to present the grain to the binder in such position that the band will be passed around the middle of the sheaf, whether it be long or short." So,:Marsb, in 1864, had along-side of the elevator a traveling independent belt, with teeth, to carry up the butts of grain, and prevent them from lagging, and this belt moved faster than the elevator; and the belt is claimed in combination with the elevator and the traveling platform, upon which the grain, when cut, falls. All these devices, in the several patents mentioned, were placed on the side of the machine, where the grain was first taken from the receiving platform and elevated. Olin .followed with his devices for elevating the grain so that it could be bound at or near the middle, and they were all on the side of the upwardly inclined moving canvas or elevator, which carries the grain from the receiving platform. The supplemental butt elevator in his patent is pivoted at its lower end, and'acts upon the butts as the grain ascends. It facilitates the ease of binding properly near the middle, operating in comhination with the main elevator, by straightening the grain in its ascent. The specificatiOl1s and claims refer to those parts of a harvester concerned in elevating the grain from the platform, which receives it when cut, to the point where it iEl discharged and falls upon the binder platform; and the supplemental swinging butt elevator, Q, is described in the patent, .so located that its teeth will engage with the butts of grain on a roller caned" I," interposed between the foot of the main elevator and the end of the moving receiving platform. and carry them up, as well as force them backward. \" AOF. no.4-16
I'BDERAL. lm'ORTE;R,
vol. 4Q.
Thq4efelldant'sbarvester bas ll.;reeeiving platform and an elevator, grain brought up onto an inclined board or binding deck, ,havmgslots through which packing arms project, and operate to com· pact the grain while the gavel is forming; and at the upper end of this deck .or' descending table is pivoted an endless apron, arranged so that its face side, engages the butts, which facilitates the descent of the grain at the. 9utt ends, and adjusts it in proper shape for binding. ,This endless apron has a downward movement, and operates on the grain after it is delivered from and adjusts it between the point of discharge from the elevator the point at which it is subjected to the binding mechanism; butit does not operate, in combination with. a har· vester elevator, to carry the grain up as it passes from the platform upon which the cut grain falla.It is urged that there is no; (j.ifference in the function and operation of the supplemental swinging elevator of Olin and defendant's endless apron; and tqe complainant's expert, Bates, says, in considering the first claim: "... '" '" As shown and deScribed in the patent,this belt, Q. [the Olin Bwinging be1t,elevator.] is arranged with one end low down near the carrier "platform, upqn wbich the cut grain falls.J and;tl)e other end upnear tbehigbestpoint travel of. the grahi; but it isobviol,1s , positionslIllght andthe'4evl(le still operate in exactly the same way topusb back, andtoconv,ey the butts forward.. For example, the re. ceivinfend of the helt, Q. migl'lt bEl further along on the path of the grain, even at the highest point on its path, Or' beyond it, and the delivery end also further along, even at poinkP, [a receiving beyond the upwardly in· clilled canvas or eleYator,]or near it. ... * * I therefore undeI1stand the ot this device to it shall be c?mbilled with the deviceB:which pr grain from',th e carrier ,Platforin to the biDlier; tllat it shaI) be'pivoted at Its recl!ivingend, 'ao that Its swin!tback and forth 00 accommodate of lengths, and that its delivery end shall be proVided with devlCesby which It may be moved back and forth for that purpose; and that it is immaterial at just what pointin the path of the "grainsaidswingingbeltorconveyof.Q,islocated. ,* ** I am ll.lsoaware that In the.chlims the device is. called an · elevator,; 'and this is correct,. but 'perhaps slightly mIsleading, 8S, whatever its 1\ ,machine of the class Inlustl'ated in' the patent, it assists in. elevating the grain f,rom the point, H, .: to the point; P; even though it were S() located that it acted on the grain only 'on the downward portion of its path." ' ,. Renwick, '. defendant'a expert, SIlys".in considering the Qlin patent, that it is limited strictly tQ an arrangement in which the pivoted end of ,the swinging ehtvatorsh.all be liwrallyand absolutely the lower end, and .in which the' swinging elevator ,operates llpon the grain while it is be. .ing elevatedfrotD theplf1,tforrn upon which it is deposited by the cutters. I think Renwick has conE!tl'ued the patent correctly, and the com· plainant's, expert,Bates, or not takenintoaceount, the .statements of tbllpatentee, when he says:: Qi'need not extend the entire lengt,hof the .stop BOlDe distarttle below the upper: elevator roller," " .' , ,. And' again, he says:' ,,, , (,
DEERING .!10 Jl"OORMICK HARVESTING· MACH.
248
. "In order to elevate the butts eveil with the heads, tlie belt or eIevator,Q, is iloarranged that the teeth, b, will engage with thel1utts of the grain on the roller, I, and carry them up while the heads are being carried up by the elevator belts, M. The lower pulIpy, c, is to be so arranged that it will permit the teeth, b. on the elevator, Q. to clear the end of the roller and engage the butts, and this pulley, c,islocated as close to the main frame as is possible and permit the operation of the butt elevator; which location of the pul. ley brings the butt elevator in position to enable it to catch any short grain, whicb short grain is liable to fall down and be caught by the heel of the sickle. and clog the sickle. By locating the lower pulley, c. of the belt, Q, at the proper distance above the main frame; A. the tpeth. b, on the elevator will comll incolltact with such short grain, and force it forward onto the carrier platform: thus keeping the beel of the sickle clear at this point." There is no infringement Of the claims by either defendant.
Steward annpreB801' Patent, No. 266,913.-Infringement by both defendanf.8 of twenty-first claim alleged,-Deflm8eB: "Want of novelty and patentability;" ,. prior use, before claim inserted, for '11W1'e than two years;" "no infringement." The twenty-first claim is as follows: "The combination of the vibrating arm, G 2, the shaft, F 2, by which it is supported and moved, prOVided with a crank,E2,a movpd part of the maand the connecting link, provided with a spring so that its length may elastically yield, whereby said vibrating arm will oppose the needle, and coact. therewith as a compressor, an;.1 move away to permit the escape of the 'bundle, substantially as described." This combination relates to the mechanism for compressing the bundle, and squeezing it to the requisite smallness, just before tying. The object of securing the arm, G2, to the shaft, F 2, at the location described, in relation to the needle arm, V, which forms a part of the combination, is to allow the vibrating arm, G2, to co-act with this arm as a compressor, and relieve the binding wire from strain. The defendants' expert in his :testimony describes the operation of the compressor arm, G2, and the needle arm, V, and speaks of the spring link connecting the rock 'shaft, F 2, with shaft moving the needle arm, V, as being placed there to obviate breakage of the needle or arm, or stopping the machinery, which would occur, when the grain was no longer ,compressible, without the spring-link connection, so as to permit compressing the spring in the link. I think he is correct, for in the specification the patentee says: "This spring is strong enough to operate the crank, III III III and yet allow the rod III III III to slide through the head or socket, when the arm. G2, has completed the compression 01 the bundle, so that no injury can result if the crank III III III continues its movement after the arm, has com.pressed the bundle." The spring link directly connects the two shafts actuating the compressor and the needle arm and allows the rod .to yield, so that the move· mentoC the compressor, CP, may be such as to adapt it to bundlesoC various sizes; but the patentee states that it is strong enough to obviate breakage, and, when the expert states that the purpose is to avoid accident, it is true, and the only criticism of the statement wade is that the device incidentally avoids breakage,whileits.purpose is.to produceeJas.
244
nDERAL REPORTER t
tic compression. Yielding compression is obtained hYi the mechanism adopted, and undoubtedly the peculiar construction of the link spring, and its location, avoids accident; so that it may fairly be said that, if the main purpose is elastic or yielding compression, it can only be accomplished by the use of a device between the arms to prevent breakage also. But elastic yielding of the comprt'ssor arm is found in many grainbinders before Steward's patent; most of them cited by defendants, or put in evidence. See particularly the Baker patent, No. 191,096, which even Steward admits in his letter to Messrs. West & Bond of March 30, IS78 t to him. All are different in constrnction, and the movement of the compressor is such as to adapt it to bundles of various sizes. The spring connection is. used in all; not directly between the two shafts actuating the arms, but indirectly for accomplishing like results. . Steward attempted on July 15, 1882, to broadly claim the use of a spring link for elastic compression t (see Steward file contents,) which was rejected upon reference to Bux,ton and others, and he then modified his claim as it now stands il:1 his patent. I think he must be limited to the peculiar construction in which thecClllnection between the compressor arm and the needle arm, by of the spring link t is direct; and any combination like the Buxton or Baker or Adams or Appleby, where aB indirect f1pring connection was put in, is not an infringement. It is unnecessary to consider the defenses ofprior use and others interposed t inasmuch as neither defendants infringe. Steward Patentt. No. 272,{)98t february 20, 1883.-Alleged infringement by defendant McCormick Company of the third, fourth, ninth, and tenth claims, and by defendant Winona Company of the twentieth and twenty-first No infringement; 1lJant of novelty and patentability. The
patent was granted for a "grain-binder," and the specification says: "The object of my invention is to provide meaus that, 'combined with IUl automatic grain-binder, shall make it automatically regulate the position of the band on the gavel,- that is, shall automatically place the band upon the gavel in its proper position, relativeto the length of the graiu, without any aid or attention from the operator; and its nature consists in locating, in such position as to be influenced by the heads of the incoming grain or gavel or bundle,:>adevice to be moved thereby, the said device connected with means for adjusting the relative positions of the said grain and the binding mechanism."
The McCormick Company is charged with infringing"Third Claim. 'Ihe combination of the SWinging revolving canvas for advancing the butts of the grain wUh the buard, e, for retarding the heads of the same. Fourth Claim. The combination, with the delivery apparatus of a harvester, self-setting plate, e, on the lli nder table, adapted. tu be operated by the grain for directing scattering grain into the succeeding gavel, substantially as deScribed." "Ninth Claim. In comlJination with the buntlle--dis· chatglng mechanism of a grain-binder,· the board.· e, for the purposes set forth. Tenth Olaim.The combination of the dis.charge arms, tbe baal'd. e, and the . butt-Rdjlls,ting mechanism, substantially as described."
The patentee describes the ordinary grain adjusting and butting machanismfuun.d jin many binders, which t he says, "constitute no part of
DEERING t7. .'COBMICK HARVESTING IUCH. CO.
245
the present invention, only as combined with other elements." At the top of the chute or deck, where the butts of the grain are delivered by the elevator, he places the grain-adjusting mechanism, which consists of ,a frame, D, carrying a roller at each end, around which rollers is drawn :an endless canvas, called" d." This frame is pivoted so as to swing, :and vibrates on the axis of the larger or upper roller, which is driven from the gearing of the harvester; and the endless canvas, in revolving, has a downward movement, and operates on the butts of the grain delivered from the elevator, and adjusts them before subjected to the binding mechanism. On the side of the deck, opposite the swinging revolving canvas, is a swinging board, e, pivoted to the harvester frame at its upper end, and nearly equal in width to that of the butt-adjusting canvas, for the purpose of retarding the heads of grain in its descent. The Bpecificatiol1 says: "The use of the canvas, d, and the board, e, produces a new and beneficial result in their' joint action upon the grain, in grain that stands thin on the ground, and bence is of that condition which always passes up the elevators head first. butts are advancell by the revolving eanvas, and the beads are retarded by thecontact with the board, e, and thus reach the binding receptacle in much better condition than when the old devices, or none, are used." The board, e, has a spring, eI, secured at one end at about middle of its length,and the other secured to the framework of the binder, and by this the board is caused, to press elastically towards the grain. The board, e,has an arm, e2 , secured "at its upperedge,andnearits top .or hinged end, the said arm reaching upward over and parallel with the and connecting by a joint with the rod, d 6 · By this means the movement of the board or plate, e, is transmitted to the adjuster, D, so that it moves in a reverse direction. In other words, the two parts, .operating, one on the heads, and the other on the butts, of the grain, are .so connected that they approach or recede from each other when one is moved. These parts, because of their weight, are inclined to swing .apart, and also, because of the tendency of the motive power on the canvas, d, to swing 'its frame outward, and hence, the spring, et, must be .strong enough to overcome these tendencies, and as much stronger as is wished to h,ave the parts moved quickly by the said spring when it is at liberty ,to, move them. With the above described parts in the positions shown in Fig. 3, and the bundle as there shown, it is plain that. if the bundle is quickly ejected, it must engage the curved part ofe, and force it out of its way , and hence backward, and, the butting canvas being .connected thereto, it will be moved forward: Two forces, then, ate apparent,-the bundle to force the parts opposing its, head and butt from each other, and the spring to retract them. In order that each bundle shall lpave the parts fixed for the time being in any position it may have caused them to assume, I provide a locking device that shall at all times retain the parts, except just while the head of each bundle is passing the .curve on the plate, e, which device is constructed as follows: * * " A .locking appar,tus is then described in the specificatiori, wbjqbis released when the, bupdle ,is, discharged, and then engages with$e 'board,
FEDERAr.. BEOOBTER,vOl.
40.
e, and holds it in the io'Which it has been by the outgoing bundle, until it shall be reset by tl.uysucceeding bundle·. Each outgoing bundle,when!t is operatlild.uponby the discharge arms, tends by the movement communicated from, the board, e, to therey,olving canvas, to set the revolving canvas in a position to feed the grain further forward or further. ;bMkwl\rd. Certainpal'ts of the invention. are said to be ca· pable of use as well as. jointly, and the independent use of. the board, e, is described, when the ;liQds between the board, e, and the revolving canvas aredisconnooted, and the locking device is removed, and to the butt adjuster is fixed to the top of the deck by a the rod pin. "I have an elastically swinging board for directing scatterings caused by imperfect adjustment of the reel of the harvester, or any other cause, into the. gavel, whether the. grain be long or short, and especially when short, as without this board there is a clear space between the heads of the gavel and thereat limit of the chute, where scatterings may pass freely to the ground." The joint action is then described: "With the parts all. lUI best shown in Figs. 2 and 3, I have, as before statt'd, ,a device for .regulating the position 'Of the grain relative to the binding tnechanism, the opel'atioq of which I will now describe. '" '" '" The cut grain' falls on the platforfu canvas, and is conveyed to' and elevated by the 4eHvered in a loose statepnto the table, when it is engaged brtbe usual pusbing mechanism, and (orced forward to the mechanism, where it is' bound, and from which it is finally ejected by the discharge arms or With the butting mechanism. and the board or plate, e,in their positions nearpst approaching each other, we will Suppose the grain fil'st acted upon to reach them. If the grain is long, the head th& bundle, when discharged, will prt'ss forcibly agamst e, more especially against it" curve, and force it backward, it. Qeing at the proper instant permitteq to move by unlocked by the action of the cam, f4. The first bun<11e .thus, bound may be too far back ward in its approach to the binding mechanism, and' hence bound too near the butt; hut. when it is discharged, the deVice acts under the'hiftuence of the plate, e. and is hence moved forward, toa:position more nearly In keeping with the requirements. and the nett bundle will be bound further from the butt. If. when going into a field of, shol't,grain. the, mechanism and plate, e. are wide. apart, the first will ,be depositt'd ,too far forward in the receptacle, and hence bound too near the heads:. but, upon its discharge, tIle board, e, will be permitted jnmp or SWing with a q'uiek movement tl) a position as far forward as the position of the hundleat·that instant will permit, and hence the butting mechanism will he set 1101' short grain. If the deVice is set to proper position for the fiJ'llt bundle before going into the grain, it will he properly hound,and It will leave the parts in posiUpn for the succeeding one. For the sake of clearness, I will further say the butt-adjusting mechanism, in all cases, directs the grain to the binding devices, (except litterings, that are thrown backward.) The position to which the is swung determines the relative position or thegavH to the binding mechanism. The passage 'of a bundle 80 long or far backward that its head will forcibly move the swinging plate. when· the latter is will cause the mechanism to move forward, grain ina. pqsition furthel' forward in relation to tp.e binding UgraiQ. of decreasIng .length passes, the spring, el , will'Oaus6 the pJate,e; to jump,when unlocked;' until it meets the heads of the same, and the bntt-adjusting thus be moved to deposit the grain of etl.Cb succeeding shorter gavel a little further back in reo
DEERING .,. M'CORMICK RARVESTINGMACH. 00.
247
device may be of any kind competent to give the swath direction into the re. ceptacle. or it may be of the kind that moves the gavel bodily endwise. The bOard or plate,e. may be connected with the butting mechanism in various ways, and the plate, e. itself may be varied; yet. should any device be used capable of being influenced by the heads of the, grain. whether in swath, gavel, or bundle, for the purposes set forth, I should consider it an equivalent. The spring, e1, may be connected with the butting mechanism direct. as to any, of the moving parts. Tbe locking arrangement may be varied, and even dispensed with, under some circumstances. These suggested modoi.Geationsareshown in an additional figure.-that numbered 7. In this the grain L'l,shown as operated at ea.:lh end by the two plates or boards; and it is plain that as the distance between these boards at their delivery end is regll1ated by the length of 'the grain. the butt-board will be caused to deliver , the incoming grain properly. This would be used in that class of binders where the grain accumulates in the receptacle ina free state. and is taken bodily therefrom by the needle. The plate, e. may be loeatt!d upon the elevator, ahd connected with the adjusting or butting mechanism,and produce the 'same effect."
latfon, to the binding mechanism. · · ,. The modifications that may be made in this arrangement are almost unlimited. For instance, the butting
, In harvesters, .boards for adjusting butts and heads of grain intheir descent down the delivery board or deck, hinged and located on opposite sides, with a series oinoles, in which pins may be placed, in the deck, to adjust the, head or wind board, and in the arm attached to the buttJ?oard, lUlcl' ,tpereby giving ,direction to the movement of the descending gntin, fOr feeding it furt4,er forward or further backward, are old. Ma,IlY ,rj38emble tpe boards of Steward, and represented in his diagram, Fig. 7, llnd will Q,O-act upon the grain, when adjusted, so as to present the gave] 'in for binding. Elward (May, 1876) described them in his .patent,but the. movement of one board did not communicate a move· menqn, an opposite direction to the other. There was conjoint action "only when adjusted by the operator. In 1877, Appleby and Bullock , substituted a traveling butter for the adjustable butter-board. Steward's butting mechanism and board, e, differ from others in a conjoint action between them, whic,h he describes, and also a conJoint the bundle-discharging mechanism of a grain-binder and the board, e, · whereby the bundle-discharging mechanism im}!arts a positive movement to ,the o,utgoing bundle against the board, e,se:> that it set for thein, coming bundle., 'Ihepurposeof Steward's inventioriis, by combination of the parts described, to adjust the butter-board forward and backward, with the board, e, so that, "whatever the length of grain which passes,its W,m,always beat the same place;" and this is done through the connectioI1:described in the specification between the board or plate,e, and · the, endless canvas, d, by which it is made to backward and forward automatically, and thereby fe.ed the butts of grain to orfurtherfrom , the needle.. In the defendant's machines the butt-board or 'endless canvas adjusted by hand to different fixed positions, and relative tqe pat9: ,of,the .and. this was a conpllon method of constl'uction '} adJustlllentof, the "en;dless in. the. Steward
e,.