« ForrigeFortsett »
only by him in whom he actually confided." Pol. Cont. (4th Ed.) 425. The contract here sued on was one by which the defendant agreed to deliver 10,000 tons of lead ore from its mines to Billing & Eilers at their smelting works. The ore was to be delivered at the rate of 50 tons a day, and it was expressly agreed that it should become the property of Billing & Eilers as soon as delivered. The price was not fixed by the contract, or payable upon the delivery of the ore. But, as often as a hundred tons of ore had been delivered, the ore was to be assayed by the parties or one of them, and, if they could not agree, by an umpire; and it was only after all this had been done, and according to the result of the assay, and the proportions of lead, silver, silica, and iron thereby proved to be in the ore, that the price was to be ascertained and paid. During the time that must elapse between the delivery of the ore and the ascertainment and payment of the price the defendant had no security for its payment, except in the character and solvency of Billing & Eilers. The defendant, therefore, could not be compelled to accept the liability of any other person or corporation as a substitute for the liability of those with whom it had contracted. The fact that upon the dissolution of the firm of Billing & Eilers, and the transfer by Eilers to Billing of this contract, together with the smelting works and business of the partnership, the defendant continued to deliver ore to Billing according to the contract, did not oblige the defendant to deliver ore to a stranger, to whom Billing had undertaken, without the defendant's consent, to assign the contract. The change in a partnership by the coming in or the withdrawal of a partner might perhaps be held to be within the contemplation of the parties originally contracting; but, however that may be, an assent to such a change in the one party cannot estop the other to deny the validity of a subsequent assignment of the whole contract to a stranger. The technical rule of law, recognized in Murray v. Harway, 56 N. Y. 337, cited for the plaintiff, by which a lessee's express covenant not to assign has been held to be wholly determined by one assignment with the lessor's consent, has no application to this case. The cause of action set forth in the complaint is not for any failure to deliver ore to Billing before his assignment to the plaintiff, (which might perhaps be an assignable chose in action,) but it is for a refusal to deliver ore to the plaintiff since this assignment. Performance and readiness to perform by the plaintiff and its assignors, during the periods for which they respectively held the contract, is all that is alleged; there is no allegation that Billing is ready to pay for any ore delivered to the plaintiff. In short, the plaintiff undertakes to step into the shoes of Billing, and to substitute its liability for his. The defendant had a perfect right to decline to assent to this, and to refuse to recognize a party, with whom it had never contracted, as entitled to demand further deliveries of ore. The cases cited in the careful brief of the plaintiff's counsel, as tending to support this action, are distinguishable from the case at bar, and the principal ones may be classified as follows: First. Cases of agreements to sell and deliver goods for a fixed price, payable in cash on delivery, in which the owner would receive the price at the time of parting with his property, nothing further would remain to be done by the purchaser, and the rights of the seller could not be affected by the question whether the price was paid by the person with whom he originally contracted or by an assignee. Sears v. Conover, *42 N. Y. 113, 4 Abb. Dec. 179; Tyler v. Barrows, 6 Rob. (N. Y.) 104. Second. Cases upon the question how far executors succeed to rights and liabilities under a contract of their testator. Hambly v. Trott, Cowp. 371, 375; Wentworth v. Cock, 10 Adol. & E. 42, 2 Perry & D. 251; 3 Williams, Ex'rs (7th Ed.) 1723-1725. Assignment by operation of law, as in the case of an executor, is quite different from assignment by act of the party; and the one might be held to have been in the contemplation of the parties to this contract, although the other was not. A lease, for instance, even if containing an express covenant against assignment by the lessee, passes to his exec
utor. And it is by no means clear that an executor would be bound to perform, or would be entitled to the benefit of, such a contract as that now in question. Dickinson v. Calahan, 19 Pa. St. 227. Third. Cases of assignments by contractors for public works, in which the contracts, and the statutes under which they were made, were held to permit all persons to bid for the contracts, and to execute them through third persons. Taylor v. Palmer, 31 Cal. 240, 247; St. Louis v. Clemens, 42 Mo. 69; Philadelphia v. Lockhardt, 73 Pa. St. 211; Devlin v. New York, 63 N. Y. 8. Fourth. Other cases of contracts assigned by the party who was to do certain work, not by the party who was to pay for it, and in which the question was whether the work was of such a nature that it was intended to be performed by the original contractor only. Robson v. Drummond, 2 Barn. & Adol. 303; Waggon Co. v. Lea, 5 Q. B. Div. 149; Parsons v. Woodward, 22 N. J. Law, 196. Without considering whether all the cases cited were well decided, it is sufficient to say that none of them can control the decision of the present case. Judgment affirmed.
JOYCE v. CHILLICOTHE FOUNDRY & MACHINE-WORKS Co. et al.1
PATENTS FOR INVENTIONS-INFRINGEMENT-LIFTING-JACKS.
Letters patent No. 154,989, granted to Jacob O. Joyce, September 15, 1874, upon an improvement in lifting-jacks, by which the pawl which held the ascending bar at the point gained by the lift of the lever was so arranged that it moved in slots at an angle of 45 deg. to the vertical line of the ascending bar, and dropped into the notches or teeth thereon by the force of gravity, instead of the pressure of a spring, as in the usual pawl, is not infringed by a lifting-jack in which the pawl is pressed forward by means of a spring, notwithstanding the fact that such pawl moves on a plane slightly inclined to the ascending bar, but which is not so arranged that the pawl moves over it by the force of gravity.
Appeal from the Circuit Court of the United States for the Southern District of Ohio.
E. E. Wood and Edward Boyd, for appellant.
BLATCHFORD, J. This is a suit in equity, brought in the circuit court of the United States for the Southern district of Ohio, by Jacob O. Joyce against the Chillicothe Foundry & Machine-Works Company and F. M. De Weese, to recover for the infringement of letters patent of the United States No. 154,989, granted to Jacob O. Joyce, September 15, 1874, for an improvement in lifting-jacks, on an application filed March 16, 1874. The specification, claims, and drawings of the patent are as follows: "Be it known that I, Jacob O. Joyce, of Carlisle Station, Warren county, Ohio, have invented certain improvements in lever-jacks, of which the following is a specification: My invention relates to the pawl of such jacks; and its objects are-First, to substitute the weight of the pawl, sliding in inclined slots, grooves, or guides, for the elastic spring usually employed to press it against the teeth of the ratchet-bar; and, second, to obtain greater strength by dividing the load among several teeth of the pawl and ratchet-bar, instead of supporting it all on one tooth, as is commonly done. Figure 1 of the accompanying drawings is a vertical section of so much of a jack as is necessary to show my improvements; and Fig. 2 is a modification of the same, in which the pins and slots of Fig. 1 are exchanged for the tongue and groove in Fig. 2. Referring to Fig. 1, A is the pawl, having teeth that engage with the teeth of the ratchet-bar, B. D, D', are slots in the frame of the jack, inclined to the axis of the ratchet-bar at the angle of about forty-five degrees, in which slots move the pins, C, C', of the pawl, A. The operation is seen at a glance. When the ratchet-bar is raised, its teeth crowd or slide the pawl up the inclined slots
1Affirming 15 Fed. Rep. 260.
out of the way, so as to allow it to pass, until it has traveled the length of a tooth, when the weight of the pawl causes it to fall back into the next tooth below, ready to hold the ratchet-bar at the point gained, ready for another lift, and so on. In Fig. 2, instead of slots, D, D', there is a tongue, D, on each side of the pawl, with corresponding grooves in the frame of the jack, in which the said tongues move; or the tongues may be on the frame, with the grooves in the pawl; the tongues and grooves performing the same office that the pins and slots do in the form of construction shown in Fig. 1. Other
modifications, involving the same principle of operation, may be possible; but I prefer the construction represented in Fig. 1, at the same time not limiting myself strictly to that, but claiming any equivalent arrangement by which the same objects are accomplished in substantially the same manner. I claim as my invention (1) a pawl for lever-jack with two or more teeth, and adapted to move in inclined slots, grooves, or guides formed in the frame, substantially as described; (2) The combination of the pawl, A, with its pins, C, C', slots, D, D', and ratchet-bar, B, substantially as described." Each
defendant put in a separate answer, alleging want of novelty, and setting forth sundry prior patents in which it was averred the invention was contained, and also giving the names of sundry prior inventors. Each answer denied infringement. The answer of the company averred that it had made for its co-defendant parts of lifting-jacks in accordance with letters patent of the United States granted to Samuel Mosler, No. 168,663, dated October 11, 1875; No. 172,471, dated January 18, 1876; and No. 194,711, dated August, 28, 1877. Issue was joined and proofs were taken on both sides, and the circuit court dismissed the bill, with costs. Its decision is reported in 15 Fed. Rep. 260.
In the opinion of the circuit court it is said: "The specification describes, and the drawings show, a frame with parallel sides, between which a pawl moves in parallel slots in the frame, forming guideways inclined towards the vertically moving ratchet-bar. The pawl is provided with a series of teeth on the face adjacent to the ratchet-bar, and, at opposite sides, with projections or lugs engaging in the inclined slots of the frame. The guide-slots are inclined at an angle of 45 degrees or thereabouts, and the pawl is actuated solely by gravity to move down the inclines, and engage its teeth with those of the ratchet-bar; and the patentee states, in his specification, as one of the objects of the invention, his purpose to utilize the gravity of the pawl itself, thus arranged, as a substitute for a spring." The clear statement of the specification in this respect is that the first object of the invention is "to substitute the weight of the pawl, sliding in inclined slots, grooves, or guides, for the elastic spring usually employed to press it against the teeth of the ratchetbar." The specification also says that, "when the ratchet-bar is raised, its teeth crowd or slide the pawl up the inclined slots out of the way, so as to allow it to pass, until it has traveled the length of a tooth, when the weight of the pawl causes it to fall back into the next tooth below, ready to hold the ratchet-bar at the point gained, ready for another lift, and so on." These are plain statements that the weight of the pawl, unaided by any spring, is to be used to cause the pawl to fall back into the next tooth below, after the ratchet-bar has traveled the length of a tooth; such weight of the pawl being employed to press it against the teeth of the ratchet-bar, in place of the use of an elastic spring for that purpose. The inclined slots, grooves, or guides formed in the frame, in which the pawl moves, are the slots, D, D', made in the frame of the jack, and "inclined to the axis of the ratchet-bar at the angle of about forty-five degrees," in which slots the pins, C, C', of the pawl move. The specification states that, instead of such slots in the frame of the jack, there may be grooves in such frame, one on each side of the pawl, in which a tongue on each side of the pawl moves, or there may be tongues on the frame and grooves in the pawl; the tongues and grooves performing the same office that the pins and slots do in the first form of construction. In the opinion of the circuit court the following statement is made as to the defendants' jack, which we deem to be correct: "The defendants manufacture a jack having a many-toothed pawl resting at its bottom upon a seat slightly inclined towards the rack-bar, and actuated by a spring placed behind it within the frame. The inclination of the seat is not sufficient to actuate the pawl by gravity, nor are there any slots or other means of guiding the pawl in the sides of the frame; the function of the inclined seat being rather to assist the spring in preventing a backward slip of the pawl when under pressure than to facilitate the forward movement of the pawl, although to the latter result it may contribute in a slight degree.' The plaintiff claims that the defendants use their spring to start the movement of the pawl upon an incline having a less angle than that mentioned in the specification of the patent, and employ an inclined seat for the pawl to effect the holding of the load; and that they thus infringe the first claim of the patent. But we are of opinion, upon the whole evidence, that in the defendant's jack the spring is used v.8s.c.-83
to press the pawl against the teeth of the ratchet-bar, within the meaning of the specification of the patent; that the jack made by the defendants would not be and is not, as constructed by them, and put upon the market, a practically operative instrument without the use of the spring; that the pawl in it will not operate by gravity alone so as to make it an efficient or safe machine; and that there are no slots, grooves, or guides formed in the frame to guide the pawl, in the sense of the first claim of the plaintiff's patent. We concur with the court below in holding that the first claim of the patent must be limited to a pawl moving by gravity alone in inclined slots, grooves, or guides formed in the frame, and that, therefore, there has been no infringement of the first claim. It is not alleged that the second claim has been infringed. "The decree of the circuit court is affirmed.
BROWN v. DISTRICT OF COLUMBIA.
1. DISTRICT OF COLUMBIA-BOARD OF PUBLIC WORKS-REQUISITES OF CONTRACTS. The Ballard Pavement Company made verbal propositions to the vice-president of the board of public works of the District of Columbia for laying street pavements, and received a writing, signed by the assistant secretary of the board, reciting and accepting the company's proposition. There was no evidence that the assistant secretary was authorized by the board to execute this writing, nor that the vicepresident was authorized to make a contract for the work, nor that the board ever ratified it. Held, that the alleged contract did not meet the requirements of the act of February 21, 1871, § 37, providing that "all contracts made by the said board of public works shall be in writing, and shall be signed by the parties making the same, and a copy thereof shall be filed in the office of the secretary of the district. " 2. SAME REJECTION OF CLAIMS BY BOARD OF AUDIT - JURISDICTION OF COURT OF CLAIMS.
Where the board of audit passes upon a claim for breach of contract with the board of public works of the District of Columbia, and marks it "disallowed," it is the same as "rejected," within the meaning of the act of June 16, 1880, § 8, (21 St. 284, 286,) providing that "no claim shall be presented to or considered by the court of claims under the provisions of this act which was rejected by the board of audit;" and the fact that the amount of damages claimed before the court of claims is larger than that presented to the board of audit is of no importance, where the contract relied on is the same.
3. SAME-JUDGMENT OF SUPREME COURT-RES ADJUDICATA.
A judgment of the supreme court of the District of Columbia, rendered against the plaintiffs in an action for damages for breach of a contract with the board of public works, is a bar to an action in the court of claims, for damages for the same alleged breach, brought by an assignee of such plaintiffs.
Appeal from the Court of Claims.
C. C. Cole and Fillmore Beall, for appellant. Atty. Gen. Garland and Asst. Atty. Gen. Howard, for appellee.
LAMAR, J. This is an appeal from a judgment of the court of claims dismissing the petition of the appellant, Talmadge E. Brown, who sued in that court to recover a judgment against the District of Columbia, appellee, for $200,000, in satisfaction of his claim for damages for breach of an alleged contract, and for work and labor performed and materials furnished in the paving of certain streets in the cities of Washington and Georgetown. The petition was filed November 16, 1880, and contains four counts, the first of which is, in substance, as follows: That from 1869 to 1874, inclusive, petitioner, William W. Ballard, and Edward L. Marsh, all of whom were citizens of the United States, were in partnership under the name of the Ballard Pavement Company,-their business consisting in grading, paving, etc., streets, sidewalks, etc.; that on or about December 10, 1872, said company made and completed a contract with the District of Columbia whereby said company became bound to pave with wood pavement such streets, or parts of streets, in the cities of Washington and Georgetown, in the said District of Columbia,