Covering the construction and use of sleeping rental that was paid by the lessee included
cars owned by the Centra. Company and by
it transferred under the lease to the Pullman
Company; and (d) $17,000 in cash. It seems
to us these values must be taken separately,
because, for reasons hereafter suggested, the
value of the contracts and patents does not
enter into the problem.

compensation for use, and to that extent the
transaction was closed and the compensation
paid up to the time when the contracts them-
selves had expired, which was prior to the
time when the lease was declared void and
payment of rent ceased. There is no principle
with which we are familiar that will permit
the value of those contracts when assigned to
the Pullman Company to enter into and form
a part of the value of the property for which
the company is to make compensation, when
from the nature of the thing itself, its value
necessarily, and from the simple passage of
time, decreased daily, and upon the arrival
of the date named for the expiration of the
contract it ceased to have any value.

As to the value of the cars. We agree with the court below that it is now impossible to decree their return, for the reasons stated. They have substantially disappeared. The property has become incorporated with the business and property of the Pullman Company. Compensation therefore must be made. The master found that the value of the cars as vehicles, together with their equipment, at the time of the transfer, was $710,846.50. We think the contracts were not extended This is probably a pretty high figure judging by the legislative *extension of the charter of[158] from the whole evidence in the case upon that the Central Company by the act of 1870. subject, yet still we are inclined to think that Some of these contracts were to last during the master was justified in arriving at the corporate life of the Central Company. that sum. We take this value for the reason | At the time they were made the charter of the that the Pullman Company agreed in the lease company would expire in twenty years from to keep the cars in good order and repair, and December 30, 1862, er on December 30, 1882. renewed and reconstructed as often as might We do not think the contracts meant that be needful during the whole term of the lease. they were to cover any further time to which During the fifteen years elapsing from 1870 the legislature might thereafter extend the up to January, 1885, no violation. of the charter of the company. Some language to terms of the lease by either party is com- that effect would have been contained in the plained of, and we think the whole transac- contracts if such had been the meaning of the tion between the parties during those fifteen parties. All the contracts had therefore exyears must be treated as closed, so that no pired by the end of 1882. examination should be made in regard to anything that happened within that time. We must assume the provisions of the lease were fully carried out by both parties, particularly as no complaints were made of nonperform[157]ance. *We therefore assume the cars were kept in good order, and when necessary were reconstructed and renewed up to January, 1885. The value at that time may be taken to be as great as the master found it to be for 1870. It is very probable the assumption is not in accordance with the fact, and that the property had greatly depreciated. But as we refuse to look into the transactions between the parties during that period, we will hold the value in 1885 to have been the same as in 1870, on the presumption that the Pullman Company fulfilled its obligations between those dates. What rule of compensation should be deduced from such finding will be alluded to hereafter.

We next come to consider the various contracts. They were entered into with different railroad companies for certain definite periods, and their time of expiration was stated in the contracts themselves. They were valuable only as they were used by the lessee, and its right to use them sprang from and was determined by the lease itself. They were assigned to the lessee for the purpose of enabling it to avail itself of the rights therein created and to use the cars with the consent of the railroads to which the contracts applied. Whether any use was made of these contracts or not they became daily less valuable as they daily neared their termination. The use made of them did not impair their value. The passage of time did that. The

Now upon what principle can it be urged that the lessee should compensate the lessor for the value of these contracts when delivered to it when it had paid for the use, and the property was of such a nature that it became valueless by mere limitation of time! In 1885 they had gone out of existence, and, of course, had no value. The basis for a recovery of property or compensation for its value, in cases of illegal agreements, rests upon the implied contract to return it or pay for it, because there is no right in the party in possession to retain it. If at the time when otherwise it would or ought to be returned it has ceased to exist by virtue of the termination of its legal existence, how can it be returned? How can a promise to return or make compensation therefor be implied in the case of a contract having but a limited time to run, and the value of which diminishes daily until the contract itself and its value are wholly extinguished by expiration of time, and where the use of this intangible right during its existence was fully paid for by the party to whom it was assigned? There is no implication of a promise to make any further compensation for such a species of property than is made by paying for its use while it remained in legal existence. When that time expired the value was gone, and while it lived it had been paid for.

We have been able to find no case where any principle was laid down which would authorize or justify a recovery of the value of property at the time of delivery, which, before its return became proper, had passed out of existence by limitation of time, and the[159) use of which was paid for during its lifetime.

sel,and that such expenses constituted a claim
for general average, notwithstanding the
abandonment of the ship was not attributed
to a peril of the sea, but to the fault of the
master and crew. The decree was affirmed.
The case of Crowley v. Saint Freres, 10
Revue Internationale du Droit Maritime, 147
also came before the French court of cassa-
tion in 1894. In this case, an English ship,
the Alexander Lawrence, on voyage from
Calcutta to Boulogne, with a cargo of jute,
took fire through the carelessness of a sailor.
The ship put into Port Louis, an intermedi-
ate port, with the cargo still burning, and ex-be had against her. But where the faults of
tinguished it, subsequently arriving at her
port of destination. By a clause in the char-
ier party the ship was exonerated from re-
sponsibility for negligence. It was held that
the expenses of putting into the port of ref-
uge should be classed as general average, and
not as particular average, as it had been held
by the court below. The decree of that court
(of Douai) was therefore reversed.

curred through negligence, but where by the
bills of lading the owners of the ship were not
responsible for that negligence."

These are all the cases I have been able to
find directly upon the question under consid-
eration, but there is a class of analogous
cases which, I think, have a strong bearing
in the same direction. It is well known that
by the law of England a ship is not respon-
sible to another for a collision brought about
by the negligence of a compulsory pilot. Of
course where such ship is solely to blame the
rule is easy of application. No recovery can

the two vessels are mutual, a different ques-
tion arises; and in the case of The Hector, L
R. 8 Prob. Div. 218, it was held that, where a
collision occurred by the mutual fault of two
vessels, and one of such vessels had on board
a compulsory pilot, whose fault contributed
to the accident, the owner of that vessel was
entitled to recover a moiety of the damages
sustained by her without any deduction on
A case arising from the same disaster to account of the damage sustained by the
the Alexander Lawrence, between the owners other; in other words, she was not respon-
and the underwriters (11 Revue Inter-sible for any portion of the damage done to
nationale, 41), subsequently came before the
court of appeals of Orleans, on appeal from
the tribunal of commerce of Boulogne, where
a similar ruling was made, and the expenses
of putting into port classed as general aver-
age under the stipulation in the charter
party, although in the absence of such stipu-
lation they would have been chargeable to
the ship.

the other vessel, but might recover the half
of her damages from such other vessel. Said
the master of the rolls, in delivering the opin-
ion:

*"With regard to the Augustus, she was[202] found to blame for the collision, therefore she is, in the first instance, liable to pay all the damage which the Hector has suffered. With regard to the Hector, it is found that her The same question came before the tri- owners are not to blame, but that her navibunal of commerce of Antwerp, Belgium, in gation was to blame; but that was the fault the case of The Steamer Alacrity, 11 Revue of the pilot. The owners are not liable for Internationale, 123, where the cargo was held this default, therefore they are not liable for to contribute to the expenses of putting into anything to the owners of the Augustus. a port of refuge, in consequence of a colli- What is the result? That the liability of the sion due to the fault of the captain, the ship-owners of the Augustus is declared to have owner being exonerated by his contract from the consequences of this fault. In this case the parties had stipulated that general average expenses should be payable under the York-Antwerp rules, and that the ship should not be responsible for the faults of [201]the captain or crew. It was held that, by the Belgium law, parties might contract with reference to these rules, which declared the expenses of putting into a port of refuge general average; that there was no difference between such expenses when occasioned by an inevitable accident or in consequence of the It seems to me that the cases above cited fault of the captain; that the parties having show an almost uniform trend of opinion stipulated that the ship should be exonerated against the principle laid down by the court from the consequences of such fault, the own-in this case. I do not contend that the deers of the cargo were bound for their contrib-cisions of the English, French, and Belgian utory shares.

From the case of The Mary Thomas [1894] P. 108, it would seem that the Dutch law is different; but it was said by Mr.Justice Barnes in this case (p. 116) that if the question had arisen in this country (England) "the point could hardly have occurred, as it has done, because it has already been decided by Lord Hannen, in the case of The Carron Park, that the cargo owners would be liable for the contribution in general average under circumstances where the accident had oc

been proved, but the liability of the owners of the Hector is disproved, and they are dismissed from the suit. Therefore no balance is to be calculated; the owners of the Hector are not liable for a single pennyworth of the damage done to the Augustus. The owners of the Augustus must go against the pilot and get what they can out of him; but the Hector is entitled to succeed."

See also Dudman v. Dublin Port and Docks Board, Ir. Pep. 7 C. L. 518; Spaight v. Tedcastle, L. R. 6 App. Cas. 217.

courts should be recognized by us any further than their course of reasoning commends itself to our sense of justice; but upon questions of maritime law, which is but a branch of international law, I think the opinions of the learned and experienced judges of these courts are entitled to something more than respectful consideration. It is for the interest of merchants and shipowners, whose relations and dealings are international in their character, that the same construction should, so far as possible, be placed upon the

law maritime by the courts of all maritime | pensation up to March 31, 1383, case No. nations, and I am compelled to say that I see 13733, in the court of claims, and has never no reason for creating an exception in this sued any oflicer nor brought any other suit than that before this present petition.

case.

"Your petitioner prays for an account of the full and entire number of the said cart

[203]WILLIAM WHEELER HUBBELL, Appt., ridges made or used by the defendant, its

บ.

UNITED STATES.

(See S. C. Reporter's ed. 203-210.)

officers or employees in its service, or for distribution to the states, since the said March 31, 1883, to be separately stated when ordered, and for leave to make the same a part of this petition when precisely ascertained

Dismissal upon the merits-estoppel in sub- by amendment.
sequent action-res judicata.

1. When a case is dismissed upon an opinion
filed and certain findings of fact, it will be
presumed to have been dismissed upon the
merits and that such dismissal covered every
question put in issue by the pleadings.
2 The dismissal of a suit for infringement of
a patent is a complete estoppel in favor of

"Your petitioner further claims a just com-[204]
pensation for the making or use by the de-
fendant, its authorized officers or employees,
for its service, of his said patented invention
of cartridge, to wit: he claims the sum of one
hundred and ten thousand dollars due to him
on this behalf by the United States from the
31st March, 1883, up to May 31, 1888.
"And he prays for judgment for all

the successful party, in a subsequent action
upon the same state of facts except for a sub-making or use of his said patented invention
sequent period of infringement, even if the
new action is based on a different theory.
& Neither a motion for a new trial which was
overruled in the former case, nor an applica-
tion for an appeal which was never allowed
or perfected, will prevent the judgment from
being res judicata.

[No. 198.]

Argued April 13, 14, 1898. Decided May 31,
1898.

APPEAL from a judgment of the Court of Claims dismissing the petition of William Wheeler Hubbell for judgment against the United States for compensation for making and using by the defendant and its officers and employees, of plaintiff's patented invention for an improvement in cartridges. Affirmed.

See same case below, 20 Ct. Cl. 354.

Statement by Mr. Justice Brown:
This was an appeal from a judgment of the
court of claims dismissing the petition of
William Wheeler Hubbell, who, as patentee
of an "improvement in cartridges," claimed
that the United States had manufactured and
used cartridges covered by his patent under
an implied contract to pay a reasonable roy-
alty therefor.

from the said 31st March, 1883, to said 31st May, 1888, by the defendant, its authorized officers or employees in its service, or on its behalf, in pursuance of law, in the sum of one hundred and ten thousand dollars, with leave to amend his petition in this behalf when the precise numbers have been duly reported by the proper departments of the United States."

Upon the trial of this case the court of claims made, amongst others, the following finding:

"The facts in this case are the facts already found in case No. 13793, between the same parties as to the same subject-matter, except as to the time since the beginning of the other action, during which time, to wit, from the beginning of the other action to the beginning of this action, the government manufactured cartridges of the same form and kind as those described in these findings, known as the 'reloading' cartridge, in which said case No. 13793 the following proceedings were had and the following facts were found, which facts are now found herein and are hereto annexed, as follows, to and including finding 8.” The 9th finding is as follows:

"The following are, in substance, the proceedings had in case No. 13793 between the same parties:

"April 19, 1883.
"May 18, 1883.
filed by allowance
"June 4, 1883.
"July 25, 1883.
filed and allowed.

Petition filed.

Amendment to petition
of judge at chambers.
Traverse filed.
Amendment to petition

Ine petition contained, amongst others,
the following allegations: That "your pe
titioner is the first and original inventor of
an improvement in cartridges, for which let-
ters patent of the United States were granted
to him in due form of law, and, according to
law, dated and issued the 18th day of Febru-
ary, A. D. 1879, vesting in him the exclusive
right to make, vend, and use the same for
seventeen years from the date thereof.
"Your petitioner has pending a suit for com-' for facts and brief filed.

NOTE. As to consequence of a nonsuit or!
dismissal of complaint,-see note to Homer v.
Brown, 14: 970.

As to what constitutes infringement of pat ent; similarity of devices; designs; combina tions; machincs; construction of patent,-see note to Royer v. Coupe, 36: 1073.

"October 2, 1884.
filed and allowed.
"December 15, 1884.
tion allowed.

"January 10, 1885.

Amendment to petition

Amendment to peti

Claimant's requests

As to damages for infringement of patent; treble damages,-see note to Hogg v. Emerson, 13: 824.

As to what questions are concluded by rea judicata,-see note to Wiese v. San Francisco Musical Fund Soc. (Cal.) 7 L. R. A. 577.

against the District of Columbia, in the Su- three fourths of the work to be done under
preme Court of that District upon an award this contract had been completed and about
for a breach of contract for resurfacing with $36,000 earned therefor, including $5,784.14
asphaltum certain streets in the city of allowed for extra work, the commissioners
Washington, and in favor of the defendant in notified Bailey that no more work could be
another action. Reversed, and cases remand-performed under the contract, because of the
ed with directions to dismiss one action and
to grant a new trial in the other.

fact that the appropriation made by Congress for the work in question was exhausted. Subsequently, on February 24, 1883, Davis W. Bailey, claiming that he was in fact the Bailey-French Paving Company, instituted an On July 30, 1879, a contract for resurfac- action at law in the supreme court of the ing with asphaltum certain streets in the city District of Columbia against the District of [162]of Washington was awarded to the *Bailey- Columbia to recover $25,000 as damages, French Paving Company. The agreement averred to have been sustained by the cessawas embodied in a writing signed on the one tion of the work under the contract. The part by Davis W. Bailey as general agent of District, on April 4, 1883, filed pleas, claimthe company just named, and on the other ing a set-off of $1,312.30 for damages alleged part signed and sealed by the commissioners to have been sustained by improper performof the District of Columbia. The price speci-ance of the work of resurfacing; averring fied for the work aggregated a little less than the termination of the contract by reason of $41,000. On February 12, 1880, when about the appropriation having been exhausted;

An award by arbitrators under the Washington statutes, if fairly and honestly made upon due consideration of all the evidence before them, is conclusive and binding upon the par- An agreement without action pending, to ties. School Dist. No. 5 v. Sage, 13 Wash. 352. submit all matters in variance between the The conclusions of arbitrators on facts sub-parties to designated arbitrators, written down mitted to them, which are such as may be determined differently by fair minded and honest people, are final, and not subject to review. Witz v. Tregallas, 82 Md. 351.

[208]

missed upon an opinion filed and certain findings of fact, it will be presumed to have been dismissed upon the merits (Loudenback v. Collins, 4 Ohio St. 251); and that such dismissal covered every question put in issue by the pleadings, including the validity of the patent and its use by the defendants.

But if there were any doubt with regard to this point, it would be resolved by an inspection of the opinion of the court (which may be examined for the purposes of identification), as it is published in 20 Court of Claims, 354, wherein it not only appears that the case was considered and disposed of upon the merits, but the court concludes its opinion (p. 370) in the following language:

"Upon our construction of the patent in issue the government cartridges do not in fringe the claimant's; but if we are in error as to this, still the claimant cannot recover, as the essential characteristics of his inven tion now found in the government cartridge were developed by officers of the army in 1864. That is, if the relative position of the vents and the wall of the fulminate chamber is a material part of the claimant's patent, the government has not infringed, this feat ure not appearing in its cartridges; but if this position is not material, still the claimant cannot recover, as the other characteristics of his invention, found in the cartridge now used by the defendants, were introduced by them prior to the use of the patent or the filing of the application for it, and even prior to the application of 1865."

to base claimant's argument that the issues were not the same. The findings show that the manufacture of the reloading cartridge with the grooved anvil disk, referred to in finding 6, commenced at the Frankfort Arsenal in the month of July, 1879, and that from February, 1879, to March 31, 1883, being the period covered by the first suit, the United States manufactured 3,866,352 reloading cartridges. We see nothing to indicate that these reloading cartridges were manufactured experimentally, or that the issue as to these cartridges was not presented and decided in the former case. The claim in the present suit is also for reloading cartridges.

But, even if a somewhat different theory or state of facts were developed upon the trial of the second case, the former judgment would not operate the less as an estoppel, since the patentee cannot bring suit against an infringer upon a certain state of facts, and after a dismissal of his action, bring another suit against the same party upon the same state of facts, and recover upon a different theory. The judgment in the first action is a complete estoppel in favor of the successful party in the subsequent action upon the same state of facts. Walker, Patents, § 468; Dubois v. Philadelphia, W. & B. Railroad Co. 5 Fish. Pat. Cas. 208; David Bradley Mfg. Co. v. Eagle Mfg. Co. 18 U. S. App. 349, 57 Fed. Rep. 989, 6 C. C. A. 661.

2. It only remains to consider, then, whether any proceedings taken in the court of claims since the dismissal of such petition deprived its judgment of its character as an estoppel. A motion for a new trial was made

ruled in the following December, clearly this
would not deprive the judgment of its ef
ficacy as a plea *in bar. Indeed, it may well 210
be doubted whether the pendency of a motion
for a new trial would interfere in any way
with the operation of the judgment as an es
toppel. Harris v. Barnhart, 97 Cal. 546;
Chase v. Jefferson, 1 Houst. (Del.) 257;
Young v. Brehe, 19 Nev. 379.

3. It further appears that on August 21, 1885, an application for an appeal was filed by the claimant, but as this appeal was never allowed or perfected, and as it does not appear that a transcript of the record was ever filed in this court, it is obvious that the authorities which hold that an appeal perfected to a superior court vacates the judgment of the court below have no application to this

Whether the reasons given by the court of claims for the dismissal of this petition are correct or not; whether, indeed, this judg-August 14, 1885, but as this motion was overment were right or wrong upon the tacts presented, is of no importance here. If such judgment were based upon an erroneous view of the claimant s patent, it was his duty to have promptly taken an appeal to this court, where the whole case would have been reopened and the error of the court of claims. if such there was, would have been rectified. It is insisted by the claimant that in the former action the main contention arose upon the manufacture and use of what was known as the "cup-anvil cartridge," together with a certain reloading cartridge, which had been experimentally manufactured, and that no claims for the "cup-anvil cartridge" or for the reloading cartridge in that suit are in issue in the case at bar. The suit, how ever, was upon the same patent, and it was found by the court of claims to have been upon the same facts, and we think the estopWe are therefore of the opinion that the [209]pel operates upon everything which was, if defense of res judicata is sustained, and the not upon everything which might have been judgment of the Court of Claims dismissing put in issue in the former case. The pre-the petition is accordingly affirmed. sumption is that the issues were the same. and if they were in fact different, it was incumbent upon the claimant to show that the prior case was decided upon questions not in volved herein. We have before us only a decision upon the merits, and upon the same state of facts, of a claim identical with this, and we perceive no reason why it should not operate as an estoppel.

But there seems to be nothing upon which |

case.

171 U. &