utes and rules the defendant is obliged to 1884. St. 1887, p. 1099, c. 437. St. 1889, p. employ the plaintiff so long as he is ready 1224, c. 473, applied to "all cases of certificaand able to perform the labor for which he tion for appointment of examined persons, was employed, until he shall have been dis and provided that the veterans should be charged in the manner provided by the appointed in preference to other persons who statute. The defendant does not deny that had not a higher standing on the eligible the statutes are now in full force, or that list. St. 1894, p. 671, c. 519, forbade the reboth the statutes and the rules of the civil moval or suspension of any veteran who held service commissioners made under their au "an office or position in the civil service of thority are to be resorted to to ascertain any city in the commonwealth" except in the rights of the plaintiff; nor does the de the manner therein provided. St. 1893, p. fendant now claim that it had the right to 618, c. 501, seems to have been intended chiefdischarge the plaintiff in March, 1903, for ly to give to veterans an absolute preference the reason then assigned. "Any laborer sus in the public service, without any distinction pended and not actually employed in the between the right to appointment to office department in which he is enrolled shall at and employment in labor service. But in the end of six months be deemed to be out Brown v. Russell, 166 Mass. 14, 43 N. E. of the service, and shall not be thereafter 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357, employed, except after registration and cer it was held that sections 2 and 6 of tification by the commissioners; and the em this statute, so far as they gave to vetploying officer shall forthwith report to the erans peculiar and exclusive privileges discommissioners the name of any laborer so tinct from those of the community in obsuspended: provided, however, that this pro taining public office, were unconstitutional, vision shall not apply to veterans.” Rules although it was intimated in the opinion that of the Civil Service Commissioners, rule 47. perhaps a different rule might be applied to

The defendant contends, however, that cases of mere employment for the rendition section 23 already cited does not apply to of services which did not constitute the emlabor service; that the labor service is regu ployé a public officer. The Legislature then lated by section 24; that the effect of the enacted St. 1896, p. 534, c. 517, embodying statutes taken together is to draw a distinc and repealing many of the previous acts, tion between the official classified public serv and containing substantially the provisions ice and the labor service of the common now set forth in Rev. Laws, c. 19, S$ 20–24. The wealth and its cities or towns. The defend sixth section of the act of 1896 provided that the ant's argument is that the provisions of the civil service commissioners should establish statute to be considered here are contained "rules to secure the employment of veterans in in Rev. Laws, c. 19, $$ 20-24, inclusive. Of the labor service of the commonweath and these sections, section 20 defines the word of the cities and towns thereof, in the class veteran. Section 21 allows a veteran to ap for which they make applications, in preferply for examination under the rules, and ence to all other persons except women." gives him a preference over other applicants; See now Rev. Laws, c. 19, $ 24. and it is claimed that this section cannot be If the distinction for which the defendant made applicable to labor service, for which contends had any existence in our legislation, he is not to be examined. Section 23, which it was created by the statute just cited. But has been quoted above, provides in terms for we have not found it necessary to determine “the public service.” Section 24 is to the this question; for we are of opinion that effect that the rules of the civil service com whether or not there is any difference bemissioners "shall provide for the employ. tween the plaintiff's rights and those of one ment of veterans in the labor service of the employed in the classified public service, and commonwealth and of the cities and towns whether or not there is any difference bethereof." And the defendant insists that the tween the different branches of the public change of language from the words “public service, as to which questions we express service" to "labor service" is upon its face no opinion, the exceptions in this action must significant of the intention of the Legislature be sustained. We see no valid distinction, to make the distinction contended for.

at least as to the right to continued employThe original provision for the examination ment, between the case of a veteran who of applicants for appointment or employment has been duly registered, certified and emunder public authority was made by St. 1884, ployed in the labor service of a city or town p. 346, c. 320. Section 16 of this chapter pro and the case of a veteran who has been duly vided that "the examination of applicants for examined, registered and employed as a pubappointment or employment as laborers shall lic officer. See Johnson v. Kimball, 170 Mass. relate to their capacity for labor, their habits 58, 48 N. E. 1020. The Legislature intended as to industry and sobriety, and the neces to provide as much in the former case as in sities of themselves and their families." In the latter for the continuous employment of 1887, veterans of the War of the Rebellion a veteran as long as he was able to do the were given a preference in “appointment to work for which he was employed and the ocoffice or employment in the service of the casion for the work continued. The manifest commonwealth or the cities thereof,” without purpose of the statute was to secure the empassing any examination under the act of ployment of veterans in the labor service of

the commonwealth and its cities and towns in preference to all other persons except women, if the veterans are competent to perform the labor; and it was within the power of the Legislature to make this preference. Opinion of the Justices, 166 Mass. 589, 41 N. E. 625, 34 L. R. A. 58. And see Shaw v. Marshalltown (Iowa) 104 N. W. 1121; Sullivan v. Gilroy, 55 IIun, 285, 8 N. Y. Supp. 401; People v. Grout (Sup.) 90 N. Y. Supp. 122. The statute makes it the duty of the civil service commissioners to establish rules to accomplish this purpose; and these rules, when duly approved, have the force of law. Attorney General v. Trehy, 178 Mass. 186, 188, 59 N. E. 659; Rev. Laws, c. 19, § 7. In pursuance of the duty thus imposed upon them the commissioners have provided by rules duly approved that “when laborers are required the employing officer shall make requisition upon the commissioners, stating the number of men wanted, the precise nature of the labor in which they are to be employed, and the time and place of employment. Upon such notice the commissioners shall certify the names of any and all veterans upon the eligible list, and the employment shall be made from the list so certified.” Rule 44. And again it is provided by rule 45, that "the selection and employment shall be made from the list so certified; and the employing officer shall, before selecting or employing any other person, first employ from the list of veterans certified." In view of the language of these rules and of the fact that they were passed under a statute which made it obligatory upon the commissioners to establish rules giving to veterans a preference in the labor service, they must be so construed as to accomplish that purpose and to give to the plaintiff the right to continuous employment in preference to those laborers who were not veterans, so long as there was work to be done of the kind for which he was employed, and as he was competent to perform that work.

But the defendant claims that even if this be the case, yet the plaintiff had no contract with the city, was not employed for any definite time or at any fixed rate of pay or salary, and so cannot maintain an action to recover wages for work that he has not performed. Chase v. Lowell, 7 Gray, 33; Knowles v. Boston, 12 Gray, 339; Donaghy v. Macy, 167 Mass. 178, 45 N. E. 87; Malcolm v. Boston, 173 Mass. 312, 53 N. E. 812; Love v. Jersey City, 40 N. J. Law, 456; Conner v. Mayor and Alderman of New York, 5 N. Y. 285. The argument is that a public officer cannot maintain an action for his salary unless he actually has exercised the office, especially if the salary has been paid to a de facto officer, and that he must at any rate establish his right by mandamus before he can he given any pecuniary relief, either against the person who has wrongfully held the office or against the city or town which

pays the salary. See Phillips v. Boston, 150 Mass. 491, 493, 23 X. E. 202. There are many decisions in other states in which this doctrine has been upheld, and there are also strong decisions to the contrary. Farrell v. Bridgeport, 45 Conn. 191; Conner v. Mayor and Aldermen of New York, 5 N. Y. 285; Hadley v. Mayor and Aldermen of Albany, 33 N. Y. 603, 88 Am. Dec. 412; Smith v. Mayor, etc., of New York, 37 N. Y. 518; Dolan v. Mayor and Aldermen of New York, 68 N. Y. 274, 23 Am. Rep. 168; Kennedy v. Mayor and Aldermen of New York, 79 N. Y. 361; McVeany v. Mayor and Aldermen of New York, 80 N. Y. 183, 36 Am. Rep. 600; Nichols v. MacLean, 101 N. Y. 526, 5 N. E. 347, 54 Am. Rep. 730; Gregory v. Mayor and Aldermen of New York, 113 N. Y. 416, 21 N. E. 119, 3 L. R. A. 854; Hagan v. Brooklyn, 126 N. Y. 643, 27 N. E. 265; Martin v. New York, 176 N. Y. 371, 68 N. E. 640; Grieb v. Syracuse, 94 App. Div. 133, 87 N. Y. Supp. 1083; Schuyler v. New York, 95 App. Div. 305, 88 N. Y. Supp. 646; McDonald v. Newark, 58 N. J. Law, 12, 32 Atl. 384; Luzerne County v. Trimmer, 93 Pa. 97; Hines v. District of Columbia, MacArthur & M. 141; Frazier v. Virginia Military Institute, 81 Va. 59; Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; Saline County V. Anderson, 20 Kan. 298, 27 Am. Rep. 171; Selby V. Portland, 14 Or. 213, 12 Pac. 377, 58 Am. Rep. 307; Hunter v. Chandler, 45 Mo. 452; Sheridan v. St. Louis, 183 Mo. 25, 81 S. W. 1082; Wheatly v. Covington, 11 Bush (Ky.) 18, Gorley v. Louisville, 108 Ky. 789, 55 S. W. 886; Baxter v. Brooks, 29 Ark. 173; Michel v. New Orleans, 32 La. Ann. 1094; Scott v. Crump, 106 Mich. 288, 64 N. W. 1, 58 Am. St. Rep. 478; Stadler v. Detroit, 13 Mich. 346; Shaw v. Macon, 19 Ga. 468; Mayor v. Hays, 23 Ga. 590; Brunswick v. Fahm, 60 Ga. 109; Dorsey v. Smyth, 28 Cal. 21; Carroll v. Siebenthaler, 37 Cal. 193; Meredith v. Sacramento, 50 Cal. 433; Bastrop County v. Hearn, 70 Tex. 563, 8 S. W. 302; Kendall v. Raybould, 13 Utah, 226, 44 Pac. 1034; Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Andrews V. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280. But the case at bar differs from these decisions. The plaintiff was not the holder of a public office which had been usurped by another who was readily to be identified, and against whom a complete remedy was available. He was a laborer, a member of a gang. It ordinarily would be difficult and frequently impossible to identify the laborer who was doing the work that ought to have been given to the plaintiff. If he could identify the particular person who had been employed in his stead, it would be practically a denial of justice to say that his only remedy was by a suit for damages against another laborer who presumably would have no means to satisfy a judgment. Such a limitation has been made in the case

of public officers, to whom it usually could be Exceptions from Superior Court, Suffolk applied without injustice; but we have found County; Wm. Cushing Wait, Judge. no decision in which it has been extended Action by one Kane against the Boston to such a case as this, and in our opinion it Elevated Railway Company for personal inought not to be so extended. Houston V. juries. Verdict for defendant, and plaintiff Estes, 35 Tex. Civ. App. 99, 79 S. W. 848; excepts. Exceptions overruled. Houston v. Clark (Tex. Civ. App.) 80 S. W.

Malachi L. Jennings, for plaintiff. R. A. 1198.

Sears and John E. Hannigan, for defendant. Nor can it be said that there was no contract between the parties. Dolan v. Orange, SHELDON, J. There is no occasion to go 70 N. J. Law, 106, 56 Atl. 130; Farwell v. over the evidence in this case in detail. It Rockland, 62 Me. 296. The contract of em could lead to no other conclusion than that ployment must be deemed to have been made the driver of the pung in which the plaintiff in view of the statutes regulating the employ was sitting drove so near the defendant's ment of laborers by towns and cities. The tracks as to cause the plaintiff's knees to statutes and the rules of the civil service strike against the car which was passing in commissioners entered into the contract and the opposite direction. Under the circumstanconstituted a part of the terms of his em ces of this case the plaintiff cannot recover ployment. For any breach of these terms of if either his own negligence or that of the employment he may recover in an action of driver contributed to the happening of the contract. This point was expressly decided accident. Evensen v. Lexington & Boston in United States v. Wickersham (U. S. Su Street Railway, 187 Mass. 77, 78, 72 N. E. preme Court, April 2, 1906) 26 Sup. Ct. 469, 355; Yarnold v. Bowers, 186 Mass. 396, 398, 50 L. Ed. 798, citing Emmitt v. N. Y., 128 71 N. E. 799, and cases there cited. Even if N. Y. 117, 28 N. E. 19, and Lellmann v. Unit there had been evidence of any negligence in ed States, 37 Ct. Cl. 128.

the management of the defendant's car, yet We do not mean to intimate that the plain it could not be said that such negligence was tiff is necessarily entitled to recover the full the cause of the accident. The plaintiff himamount which he has claimed. There was

self testified that the trouble was that the evidence that, for a part of the time at least driver of the pung drove too near the tracks during which work was refused him, he ac

and that even if the car had stopped the quiesced in the refusal, and that at other driver of the pung would have driven him times there was no work to be done such as (the plaintiff) against the car; and there was he had been employed for and was able to

no other testimony in the case inconsistent perform. Norton v. Brookline, 181 Mass, 360,

with this. The circumstances are not like 63 N. E. 930; Clark v. Boston, 179 Mass. 409, those disclosed in Aiken v. Holyoke Street 60 N. E. 793. The only liability of the city Railway, 180 Mass. 8, 12, 13, 61 N. E. 557. is for not having given him the preference

The verdict for the defendant was rightly over others, not veterans, to which he was en

ordered. titled while there was such work to be done. Exceptions overruled. If, as the jury might have found on the evidence, the city failed to do this, then he

(192 Mass. 434) was entitled to recover; and, as in the ordi ABERTHAW CONST. CO. V. RANSOME. nary case of breach of a contract of employ

(Supreme Judicial_Court of Massachusetts. ment, the measure of damages would be de

Suffolk. June 21, 1906.) termined by the pay he would have earned, 1. PATENTS - INFRINGEMENT-ACTION Eviless what he earned, or in the exercise of DENCE. proper diligence might have earned, else Even if the assignor of a patent be estopwhere. The fact that the statute imposes a

ped as against the assignee to deny its validity,

it is open to him in a suit for infringement to penalty for any breach of its provisions (Rev.

show the prior state of the art as bearing on the Laws, c. 19, $ 35) does not deprive the plain construction and scope of the patent, and to tiff of its civil remedy. Parker v. Barnard,

show that the acts alleged are not violations.

[Ed. Note. For cases in point, see vol. 38, 135 Mass. 116, 46 Am. Rep. 450. The case

Cent. Dig. Patents, $ 452.] should have been submitted to the jury.

2. CounTS-UNITED STATES COURTS-JURISExceptions sustained.


The federal courts have exclusive juris

diction of a suit for infringement of patent, (192 Mass. 386)

whether brought against the original patentee KANE V. BOSTON ELEVATED RY. CO. or any other party.

[Ed. Note.-For cases in point, see vol. 13, (Supreme Judicial Court of Massachusetts.

Cent. Dig. Courts, $ 1327.]
Suffolk. June 20, 1906.)

In an action for personal injuries to plain-

An action cannot be maintained against an tiff while riding on a pung near a railroad individual to restrain violation of a contract of track, he is not entitled to recover, if either his assignment of patent rights, entered into beown negligence or that of the driver of the pung tween plaintiff and a corporation, though the contributed to the happening of the accident. defendant is in control of the corporacion.

[Ed. Note.-For cases in point, see vol. 37, [Ed. Note.For cases in point, see vol. 12, Cent. Dig. Negligence, $$ 147–150.]

Cent. Dig. Corporations, 861.)


struction under the 'Ransome' system in the The jurisdiction of equity does not extend

aforesaid territory to said Aberthaw Conto a suit for false representations as to the validity of a patent owned by the plaintiff, nor

struction Company, together with any inforas to his title thereto, which involve no breach mation which might be helpful in obtaining of trust or contract.

such business." [Ed, Note.-For cases in point, see vol. 19,

Ransome at the time of the assignments by Cent. Dig. Equity, § 86; vol. 27, Cent. Dig. Injunction, § 171.)

the Ransome & Smith Company owned a

large amount of the capital stock of the comCase Reserved from Supreme Judicial

pany, and was and ever since has been "the Court, Suffolk County.

dominant factor therein," and still controls Bill by Aberthaw Construction Company

and dictates its policy; and substantially the against one Ransome. Case reserved from

same allegations are made as to the relations Supreme Judicial Court. Bill dismissed.

between him and the Ransome Concrete ComWeld A. Rollins, for complainant George pany, and also between him and another corR. Nutter, Joseph 0. Proctor, Jr., and Bran-poration called the Ransome Concrete Madeis, Dunbar & Nutter, for defendant.

chinery Company.

The plaintiff ever since the said assignments HAMMOND, J. This case is before us up to it “has been the owner of the exclusive on a reservation upon the bill and answer. right to make, use and vend the material and The material allegations of the bill may be invention covered by said letters patent withsummarized as follows:

in" the six New England states, and as such The respondent is the inventor and pat owner has carried on the business and deentee of a "new and useful building mate rived great profits therefrom. These letters rial of concrete or similar substance and cold patents were acquiesced in by the inhabitants twisted metal bars imbedded therein com within the territory mentioned, and no inbined.” In February, 1896, he assigned one fringement has taken place within that terrihalt interest in the letters patent to one tory until the acts complained of. Smith, and subsequently he and Smith each Ransome, by various advertisements and assigned his interest to the Ransome & Smith otherwise, has interfered with the plaintiff's Company, a California corporation, so that rights by representing that the Ransome Conthe latter became the sole holder of the pat crete Machinery Company is ready to sell ent. In March, 1896, this company, subject “Ransome's Improved Twisted Steel," "in all to certain exceptions not here material, as sizes and lengths, at short notice"; and also signed to the plaintiff, “its assigns and legal by representing to parties desiring the patrepresentatives an exclusive right, title and ented material that the patent is invalid and ownership to said letters patent to make, use, worthless. In this and other ways he has and sell or practice the inventions the subject induced parties (several instances being matter of” said letters patent “in and through-specifically set forth in the bill) to buy of out the states of Maine, Massachusetts and the Ransome Concrete Machinery Company, Rhode Island," and subsequently, in the same and to use in said States "said material month, made to the plaintiff a similar assign covered by said letters patent." ment as to the state of Connecticut. Both

The bill further alleges that Ransome has these assignments were executed by the Ran done the acts complained of in pursuance of some & Smith Company by the defendant, its a fraudulent design to defraud the plaintiff president.

"out of the profits of that which he had himself In January, 1900, the Ransome Concrete sold or caused to be sold to the” plaintiff ; and Company, a New Jersey corporation, entered that by reason of such acts and doings the into a contract with the plaintiff which, aft plaintiff's “legitimate monopoly under said er reciting that the said Aberthaw Construc patent is being broken in upon and destroytion Company was entitled to the rights un ed”; that Ransome “is causing to spread der said letters patent in the states of Maine, | through

* [New

[New England] * Massachusetts, Rhode Island, and Connecti the belief that the patent *

* * is invalid, cut, and that the Ransome Concrete Company and that any one may make, use and sell was the owner of the rights under said letters said patent invention with impunity, and patent for various other territories in the that the

* (plaintiff] *

will United States, including Vermont and New be powerless to prevent them”; all to the Hampshire, but not including Maine, Mass great damage of the plaintiff. It is further achusetts, Rhode Island and Connecticut, alleged that "at the date of the conveyances "granted to the Aberthaw Construction Com set out in

[the bill]

and pany the exclusive rights to the use of the also at the time of the acts complained of, aforesaid letters patent in the States of Ver and also at the time of bringing" the bill, mont and New Hampshire, and further pro Ransome was an officer, director and agent vided that the said Ransome Concrete Com of the Ransome & Smith Company, Ransome pany should aid the said Aberthaw Construc Concrete Machinery Company, and the Rantion Company in every way possible in its some Concrete Company, power to extend its business, and would refer By an amendment to the bill it is further any and all opportunities presented to the alleged that Ransome caused the Ransome &

Smith Company to participate in all the acts remedy at law; third, the bill is multifaricomplained of, and further that in two sep ous; fourth, because the acts were the acts arate instances therein particularly set forth, of corporations and it does not appear that one in Massachusetts and the other in Con the defendant is an agent or officer of any of necticut, he caused the last named company the corporations, or that the acts are acts for to interfere with the plaintiff's business; in which the defendant is responsible; fifth, it the Massachusetts case by furnishing to cer is a suit arising under the patent or copyright tain persons “cold twisted steel” and super laws of the United States and the State court intendence in combining this steel with con has no jurisdiction; and sixth, the corporacrete, “which combination is the subject mat tions are not made parties. ter of this patent"; and in the Connecticut In other words, the bill charges the defendcase by bidding for the sale of such steel ant with interfering with the patent rights with the intention of competing with the of the plaintiff by competing with the plainplaintiff, whereby the plaintiff had to sell to tiff and slandering its title, and the prayer is the party desiring the steel at a less price that the defendant may be enjoined from than it otherwise could have obtained. such acts.

The bill further alleges that in these and 1. As to the alleged acts of infringement. many other ways the defendant has done or Even if it be assumed that inasmuch as the caused to be done many things tending to defendant is the inventor and patentee, he is defeat his own grant to the plaintiff; and it estopped, as against the plaintiff whose alleges that it is against equity and good rights come from him by mesne assignments, conscience "for * * said * * Ran

to deny the validity of the patent (Chambers some, being the inventor, assignor and domi v. Crichley, 33 Beav. 374; Robinson on Patnant power in the assigning and competing ents, $8 767, 787. See, also, cases cited in companies, as aforesaid, and being a domi 22 Am. & Eng. Ercyc. of Law [2d Ed.] 429), nant factor in the Ransome Concrete Com still it is open to the defendant to show the pany, which has contracted to aid * *

prior state of the art as bearing upon the [the plaintiff] *

* * in securing business construction and scope of the patent, and to under said patent and otherwise, to endeave show that the acts alleged are not violations. by means of advertisements, slander of title, Babcock v. Clarkson, 63 Fed. 607, 11 C. C. A. assurances, bonds of indemnity, personal ser 351. Moreover, a suit for an infringement, vices, and competition in general, to divert whether brought against the original patentee into his own pocket the profits which would or any other party, involves an inquiry into the naturally go to the * * * [plaintiff] scope and nature of the patent. Over such * * * and to render worthless said let a suit the federal courts have exclusive juristers patent sold by him and now owned by diction. Rev. St. U. S. (2d Ed.) § 711, cl. 5. the” plaintiff. It is further alleged on belief It is further alleged on belief | [U. S. Comp. St. 1901, p. 578].

[See, also, that the defendant intends to continue his cases cited in 22 Am. & Eng. Encyc. of Law unlawful acts as aforesaid within the New (2d Ed.pp. 479, 480; Dudley v. Mayhew, 3 England states.

N. Y. 9. The prayers are for an injunction restrain Nor can the bill be maintained as a violaing the defendant "his agents, servants, and tion of the contract between the plaintiff and attorneys, from advertising, or causing it to the Ransome Concrete Company. The debe advertised, that he or any of the compan fendant was not a party to that contract. ies aforesaid can or will within the

2. As to the alleged slander of title. The [New England States] * * * make or jurisdiction of equity does not extend to cause to be made, use or cause to be used, false representations as to character and sell or cause to be sold, the aforesaid mate-quality of plaintiff's property nor as to his rial covered by said patent''; and also that title thereto which involve no breach of trust the defendant be enjoined "from personally or contract. Hence the bill cannot be suscompeting with the * * *

[plaintiff] tained upon the ground of the alleged slander * * * in the manufacture, use and sale of

of title. Boston Diatite Co. v. Florence Mfg. said patended material within

[the Co., 114 Mass. 69, 19 Am. Rep. 310. New England states] * * and from 3. It is alleged that the defendant is the causing the companies dominated by him dominant factor of various corporations from competing as aforesaid”; and further, named in the bill, and therefore can be held that the defendant, "his agents, servants and answerable for their acts. So far as those attorneys * * *

* * be enjoined from repre acts however are alleged to be infringements senting, assuring, or hinting to any person or of the patent, we have no jurisdiction, as corporation that said patent is invalid, doubt above stated. So far as such acts are in ful or uncertain, and from stating to any

violation of contracts, to reach the defendant such persons or corporations reasons or facts it is necessary to disregard the entity corleading to that conclusion." There is also a poration of the entity and treat the defendprayer for the assessment of damages, and ant as the real party in all these transactions. one for general relief.

It is not alleged that the defendant was the The defendant demurs because, first, the owner of all the capital stock in all of these bill shows no case for equitable relief; sec companies or any one of them, nor is it even ond, there is a plain, complete and adequate alleged that he owned a majority of the



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