Opinion of the court.-True principles of accounting. defendant had made and sold 3639 pairs of the infringing motions as a part of looms manufactured in his establishment, and that the profits resulting from the manufacture and sale of such motions had mingled with the profits from the manufacture of looms. He further reported that the cost of making the looms, including the motions, was $59.63; that the cost of making the motion was 45 cents each, or 91 cents for each loom; and that the profits resulting from the manufacture of each loom, including the pair of motious, was $5.64. Assuming these to be the facts the appellant insists that he should have been charged with only 8ths of a cent as the profit made by him on each pair of motions, that bearing the same proportion to $5.54, the whole profit on the looms, which 91 cents, the cost of a pair of motions, bears to $59.63, the cost of the entire loom with the motions. To this we cannot assent. It appears from the master's report that the defendant sold 414 pairs, separately from the looms, at $2 per pair, and 297 other pairs for $534.75. These sales furnish a much better measure of profits than is a ratable proportion of the profits on an entire loom. It may fairly be presumed from them that the profits on the sale of looms, with the motion attached, were increased by the infringing device quite as much as was the profit on the motions sold separately. It does not appear at what profit, if any, the looms could have been sold without the picker-staff motion attached. But the master further reported that the defendant made the infringing motions after a pattern of his own devising; that they cost per pair 50 cents less than the picker-staff mechanism which he had immediately before put upon his looms; that they were made under a patent granted to him, and that they cost about 50 cents less than the motions made by the plaintiffs, the difference in the cost being due to his invention. If this is so, it is clear that the 50 cents saved on each pair, equivalent to 50 cents profit, is not due to the complainants' invention. Were it not for the defendant's improvement the cost of making a pair of motions would have been, not 91 cents, but 91 plus 50 cents, or Opinion of the court.-True principles of accounting. $1.41, and the profits on each pair would have been 59 cents, instead of $1.09 charged to the defendant. Marifestly the complainants are not entitled to the savings or profits resulting from the defendant's own invention. The defendant, therefore, has been charged by the master's report, confirmed by the court, too much for the profit derived from the sale of 414 pairs of motions sold separately from the looms, and from the sale of 297 motions also sold separately from the looms. For the former he should have been charged $243.26, instead of $451.26, and for the latter $175.52, instead of $263. We think, also, that the defendant has been excessively charged for the profits made by him on the 346 beds, and the 1548 rockers sold by him at various times for the repair of bridle motions previously made. He has been credited with the cost only, without reference to the fact that the cost was reduced by his own invention. The complainants have not shown how much the cost would have been had the defendant made them without employing his own improvements. Under such circumstances it appears just to assume that but for the improvement of the defendant the cost of making the bed would have been 42 cents instead of 27%, and the cost of making the rockers would have been 19 cents instead of 12 cents and 4 mills, as reported by the master. The consequence of this is that the profit ou the 346 beds sold was only $167.68, and the profit on the 1548 rockers sold was only $471.49. The decree, therefore, should have been in favor of the complainants for 1st. Profits on bridle motions sold on looms, 8d. Profits on 297 pairs sold separately, 5th. Profits on the rockers sold separately, Total,. . $1819 50 243 26 175 52 167 68 471 49 $2877 45 A majority of the court is of opinion that the appellant is not entitled to a credit for the $1000 paid on the 25th of October, 1869, for which a receipt was then given. Statement of the case. The decree of the Circuit Court is REVERSED, and the case is remitted with instructions to enter a decree in favor of the complainants against the defendant for $2877.45, with costs of suit in the court below. Each party to pay his own costs in this court. REVERSAL AND REMAND ACCORDINGLY. AMBLER V. WHIPPLE. A rehearing will not be granted on the ground that the record on which the case was heard was imperfect, it appearing by an examination of the parts which on the original hearing were left out, but which were now brought up, that they presented nothing but matter which did not affect the merits of the case, or matter which only further established that which the court in giving its decree considered to be already otherwise abundantly proved. THIS was a petition for rehearing, made in behalf of Whipple, the appellee, in an appeal from a chancery decree, in which a judgment of reversal and remand had been given in this court against him, at an earlier part of this term.* The original case was thus: Whipple, of the city of Washington, D. C., had formed a partnership in the year 1869, with a man of the name of Ambler, the purpose of the partnership being to generate gas from petroleum by a new process which Ambler professed to have discovered. Whipple was the man of business of the firm, and the person who furnished the requisite money to carry on the scheme. Ambler was a man of inventive genius, but of genius disfigured by so many irregularities and vices as to make it somewhat doubtful whether he was entirely sane. He would get, for example, into drunken debauches, from time to time, and when in them, lie, cheat, commit forgery (of which, indeed, he was at the time actually convict), and go away from Washington as * 20 Wallace, 546. Statement of the case. if he had no business there at all to attend to. About the 21st of August, 1869, Ambler being sober enough before and at the time, the parties made an experiment which resulted in a valuable and profitable discovery. Soon after this, that is to say, about the 1st of September following, Ambler having got into one of his drunken fits, went away from Washington, and was gone for eight or ten days while Whipple was bringing more nearly to perfection the experiment just mentioned, the success of which, in the main, had been already established; a success which was largely due to Ambler. Having got through his debauch, Ambler returned to Washington, where he found that Whipple had taken another person into partnership with him, and that the two had combined to shut him out of the partnership workshops, and to treat him as no longer interested in the business of the firm. Ambler hereupon filed a bill praying that the new firm might be enjoined from using the recent discovery, and that Whipple might account. Whipple answered, setting forth Ambler's habits of debauchery, of lying, &c., and that he had abandoned the workshops at Washington-in which point of light the bill represented Ambler's recent departure. Neither, however, in this answer nor in a cross-bill which he filed, did Whipple allege that Ambler's character and habits were not known to him as to very many other persons in Washington before the formation of the partnership. And in point of fact it seemed that they were perfectly well known to him as to others. No dissolution of the partnership was prayed for by either party. This court on appeal from a decree made in the local court at Washington where the proceedings in the case were originally begun, decreed that though Ambler's bad characterhis drunkenness, dishonesty, &c.-would have been good ground for dissolving the partnership had the partnership been entered into in ignorance of them by Whipple, yet that Whipple having been fully acquainted with them before the Statement of the case. partnership was made, he could not now make them the excuse to treat the partnership as ended, and to take to himself all the benefits of the joint labor of the two partners and their joint property. And it appearing on the proofs, that notwithstanding all his foibles and vices, Ambler had greatly contributed by his inventive genius to the discovery which had been made on the 21st of August, 1869-contributed indeed quite as much as Whipple ever had by his money and his more steady habits-this court charged Whipple with half the profits made since his exclusion of Ambler from the workshops. In narrating the facts of the case, before giving the opinion of the court upon them, the court spoke of Ambler's departure from Washington as having occurred on the 20th of August. In point of fact, as already said, he actually went from the city on the 1st of September, he having been lying about somewhere more or less intoxicated, as was said, for a day or two before he actually went out of town. Such was the original case. The petition for rehearing now set forth that a large part of the matter which was before the court below had been omitted on the hearing before this court, and that such hearing was, therefore, upon a defective record. Affidavits accompanied the petition, by which it was attempted to be shown that owing to the death of one of the gentlemen employed as counsel, and the substitution of others, there was no laches or neglect in examining and perfecting the record before the hearing, for which the petitioner, Whipple, the appellee, should be held responsible. A transcript of the parts of the record which were omitted in the first transcript, now accompanied the petition for rehearing. They consisted of commissions to take depositions, of orders fixing the time, by extension or other *This slight and wholly unimportant inaccuracy of the court was noted by the Reporter as he was reporting the case, and in making his "statement of the case," no exact day in August was given; it being made to appear only that Ambler's departure was probably after the 21st. The error of the court, therefore, does not appear in the report with any point. In fact, as is decided in this case, it had none in any aspect. |