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See same case below, 9 App. D. C. 360.

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 fact that the appropriation made by Conto grant a new trial in the other. gress for the work in question was exhausted. Subsequently on February 24, 1883, Davis W. Bailey, claiming that he was in fact the Statement by Mr. Justice White' 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;

Arbitrators, unless restricted by the agreement to submit, are not, as to matters of law, bound in all cases to follow the strict rules of law governing the courts, but may decide in accordance with their views of the equitable rights of the parties. School Dist. No. 5 v. Sage, 13 Wash. 352.

An award by arbitrators will not be set aside upon a doubtful point of law or upon a complaint of error which is not plain, even where the arbitrators are required to decide according to the strict rules of law. School Dist. No. 5 v. Sage, 13 Wash. 352.

An award by arbitrators under the Washing ton statutes, if fairly and honestly made upon due consideration of all the evidence before them, is conclusive and binding upon the parties. School Dist. No. 5 v. Sage, 13 Wash. 352. The conclusions of arbitrators on facts sub-parties to designated arbitrators, written down mitted to them, which are such as may be de- by a justice in his docket, is a common-law subtermined differently by fair minded and honest mission to arbitration. Climenson v. Climenpeople, are final, and not subject to review. son, 163 Pa. 451. Witz v. Tregallas, 82 Md. 351.

A suit cannot be maintained upon an original cause of action which has been submitted to arbitrators. where the plaintiff retains the fruits of the award. Orvis v. Wells, F. & Co. 38 U. S. App. 471, 73 Fed. Rep. 110, 19 C. C. A. 382.

Costs and expenses incurred in preparing for an arbitration, under an agreement that the compensation of the arbitrators and their expenses and those of the witnesses shall be borne and paid by the parties in a designated propor tion, may be recovered in full from a party who revokes the agreement, under N. Y. Code Civ. Proc. § 2384. Union Ins. Co. v. Central Trust Co. 24 N. Y. Civ. Proc. Rep. 219, Affirmed in 87 Hun, 140.

A provision in a submission of a controversy to arbitrators, that the arbitrators shall proceed on the principles of equity, it being the desire that the matters in dispute shall be equitably settled so that each shall have from the other all that is his equitable due,-means equity in the sense of "fair dealing" and "justice." Re Curtis, 64 Conn. 501.

An agreement by a client and his attorney to submit the amount of the latter's compensation to the determination of a person upon a sworn itemized and explanatory statement of the services rendered and expenses incurred and of the moneys received, the arbitrator to allow only such sum as he believes proper and necessary for preparing the defense in the suit in which such services were rendered, constitus in effect a common-law arbitration, which is still recognized and enforced by the courts of New York. Box v. Costello, 6 Misc. 415.

The award of arbitrators to whom a case is submitted by mutual consent of the parties is conclusive upon them, although the agreement of submission is by parol and the parties do not assent to the award after it is made. Wentz v. Bealor, 14 Pa. Co. Ct. 337.

The power of awarding the costs of arbitration is necessarily incident to the authority conferred on the arbitrators of determining the case, although such costs are not provided for in the terms of submission. Stewart v. Grier, 7 Houst. (Del.) 378.

The fact that one has been previously in the employ of one of the parties to an arbitration does not disqualify him from acting as clerk for the arbitrators. Wilson v. Wilson, 18 Colo. 615.

'n agreement of arbitration forced by a threat of prosecution for perjury is void. La ferriere v. Cadieux, 11 Manitoba L. R. 175.

Failure to insert the names of the arbitrators In a written submission to arbitrate does not Invalidate such submission. Reeves v. McGlochlin, 65 Mo. App. 537.

An award made in pursuance of a submission under Ala. Code, § 3222, of partnership trans actions carried on in two states by partners who reside in two different states, is not vitiated as an Alabama award by the fact that the sitting of the arbitrators occurred in a store, the property of the parties across the state line. Edmundson v. Wilson, 108 Ala. 118.

A submission to arbitration requiring the arbitrators to make a written award and deliver a copy thereof to the parties is not complied with by one of the arbitrators notifying a party on meeting him on the street that the arbitrators had come to a decision, with a statement to what their finding was. Anderson v. Miller, 108 Ala. 171.

as

on the face of the record. Reeves v. McGlochlin, 65 Mo. App. 537.

The decisions of arbitrators, under Ala. Code, 3222. are to be liberally construed, and every reasonable intendment is made to support them. Edmundson v. Wilson, 108 Ala. 118.

A motion to vacate or modify an award is properly denied when filed during the second term after publication of the award, under the Missouri statute requiring such an application to be made at the next term after such publication. Reeves v. McGlochlin, 65 Mo. App. 537. An award of arbitrators will not be vacated or modified under Mo. Rev. Stat. 1889, §§ 405, 406. for alleged mistakes which do not appear

That an agreement for arbitration does not comply with the mode prescribed by the Texas Revised Statutes does not invalidate it, in view of the provision that nothing therein shall be construed as affecting the right of parties to a bitrate their differences in such other mode as they may seiect. Salinas v. Stillman, 30 U. S. App. 40, 66 Fed. Rep. 677, 14 C. C. A. 50.

An agreement without action pending, to submit all matters in variance between the

The necessity for filing an award of arbitrators with the clerk as required by the Colorado

[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. &

The next document referring to the matter | nunc pro tunc." On March 10, 1893, a mois the following: tion for judgment was filed on behalf of the plaintiff.

Office of the
Commissioners of the District of Columbia.
Washington, January 11, 1892.

Ordered, that J. J. Johnson is hereby ap-
pointed referee in the matter of the suit of
Bailey, Administratrix of Bailey, Deceased, v.
District of Columbia.

Official copy furnished Mr. J. J. Johnson.
By order:
W. Tindall, Secretary.

Without action being had on the excep tions and motions referred to, the adminis tratrix of Bailey, on August 8, 1893, instituted an action at law, numbered 34,564, in the supreme court of the District of Colum-[166] bia, seeking to recover from the District the sum of $10,519.20, basing the right to such recovery upon the claim that the finding of Mr. Johnson was, in fact, a final decision and award. In the affidavit filed with the declaration, as authorized by the rules of pracUnder this appointment, on February 17. tice of the court, what purports to be a copy 1892, the attorneys for the respective parties of the resolution appointing Mr. Johnson appeared before Mr. Johnson. It was claimed referee is set out, but the words "of the suit" by witnesses for the plaintiff at the trial of are omitted from before the words "of Bailey, the action subsequently brought to enforce administratrix." On September 2, 1893, the finding of the referee, that at the com- pleas were filed on behalf of the District, demencement of the hearing the latter gentle-nying that it had agreed to submit the matman, as well as the attorney for the administers of difference referred to in the declaratratrix, raised the question whether or not tion to the award and arbitrament of Johnunder the order of appointment the decision son, and averring that Johnson had not made of the referee was to be final, and were as- an award concerning the same. The various sured by the attorney for the District that steps in the original action (No. 24,279) the decision of Mr. Johnson was to be a final were stated, and it was alleged that motions 5]determination of the case. *Such witnesses to set aside award and for judgment were also testified that subsequently, when a ques- still pending. It was also averred that the tion arose with respect to permitting an alleged award was not under seal and was amended declaration to be filed, setting up a never delivered to the defendant; that the claim for an extra half inch of resurfacing, defendant never undertook and promised in the referee and attorneys discussed as to the manner and form as alleged, and that the whether the decision of the referee "was to District was not indebted as alleged. The wind up finally the whole matter," and plaintiff joined issue. On October 8, 1895, an affirmative conclusion was arrived at. on motion of the plaintiff, the two causes No attempt, however, was inade to obtain were consolidated. While the motion to from the commissioners of the District any consolidate was opposed by the District, no modification or amplification of the writing exceptions were taken to the entry of the orof January 11, 1892. der of consolidation.

The hearing before the referee was concluded on July 18, 1892, when Mr. Johnson placed on the files of the supreme court of the District of Columbia in action numbered 24,279 his report as referee. The report did not refer to the mode by which its author had become referee. It was entitled in the cause, purported to contain a synopsis of the pleadings, the plaintiff's claim, a statement of the facts and the findings of "J. J. Johnson, referee." The report concluded as follows:

The consolidated action came on for trial January 13, 1898. At the trial W. Preston Williamson, a witness for the plaintiff, testified that he had sent to the commissioners the communication of September 16, 1891. Under objection and exception he was permitted to testify to conversations had separately with two of the commissioners, which tended to show that in the event of the appointment of an arbitrator or referee, it was the intention of the commissioners to submit to the individual selected as referee "Upon the evidence and the law I have al- or arbitrator the final determination of the lowed the plaintiff for the unexecuted bal- entire controversy referred to in Williamance of 11,385 square yards, $4,440.15, being son's letter. Also under objection and exthe profit between the cost of resurfacing the ception, the witness testified that after the streets at fifty cents per square yard and order appointing Mr. Johnson referee was eighty-nine cents, the price received, and for made by the commissioners, he and the attorthe extra one-half inch I have allowed the ney for the District, in the presence of the plaintiff $6,079.05 at the contract price, ag-referee, discussed the scope of the submission, gregating the sum of $10,519.20. I do therefore find that there is due to the plaintiff from the defendant the sum of $10,519.20, besides costs."

The referee also fixed his fee at $550, which was paid by the administratrix.

On September 23, 1892, exceptions were filed on behalf of the District to this report. Upon the exceptions, the attorney for the plaintiff made the following indorsement: "I consent that these exceptions be filed 171 U. S.

and agreed that the decision of the referee[167] was intended by the parties to the controversy to be a final disposition of the whole matter. The indorsements on the letter of Mr. Williamson, the letter of the assistant attorney of the District, and other memoranda heretofore set out were put in evidence on behalf of the plaintiff. Mr. Hazleton, a former attorney for the District, also testified for the plaintiff, in substance, under objection and exception, that it was the inten

tion of the commissioners, as he knew from [offer made, but it is unnecessary to notice the oral statements made to him by two of the action taken by the trial court with respect commissioners, that the appointment of a to that controversy. referee would be for the purpose of ending In rebuttal, Mr. Williamson reiterated the whole controversy, and that nothing oc- statements as to alleged declarations of Mr. curred between the time of the appointment Ross regarding the finality of the decision of of the referee and the making of the report the referee. On cross-examination he said: to change that understanding. He also tes- "That he wrote the letter of September 16, tified as to the filing of the amended declara- 1891, at his office, 912 F street; that he did tion before the referee, setting up the claim not know why the District filed exceptions, for an extra half inch of resurfacing, which as it was understood that the report was to was not embraced in the pending suit at the be final; that witness filed the motion to contime the referee or arbitrator was appointed. firm the award because he thought it the J. J. Johnson also testified on behalf of the best thing, the only thing, that could then be plaintiff, under objection and exception, as done, and that he thought it would be simply a to the understanding had with him at the matter of form, and he would have confirmahearing before him as referee, by the counsel tion at once of the award, and that the money for the respective parties, regarding the would be paid; but the District, instead of finality of any decision made by him, and as doing that, violated its agreement; that witto the filing of the amended declaration for ness did not remember ever consenting to the[169] the extra half inch of resurfacing. He tes-filing of exceptions to the award. Now that tified that he filed the report made by him counsel shows him the paper which is the exin court of his own mction, and averred that ception to the award, witness remembers that certain written matter filed with his report he signed the paper consenting that the exwas not a part of the report, and that it did ceptions should be filed nunc pro tunc. Mr. not contain all the evidence, though it con- Richardson came to him and asked him if tained all the oral testimony given before him. he would make any special objection to the The report was next put in evidence, ob- exceptions being filed; that it ought to be jections being first separately interposed to filed, so that the District might make their its introduction on the grounds: 1, that the objections, and for that purpose he did it, and papers and evidence attached thereto should did not consent to it because he thought it also be put in evidence; and, 2, that the was not final; that there was not a copy of referee was without authority to make an the award served by him on the commisaward. To the overruling of each objection sioners; that Mr. Johnson was their arbitrathe defendant duly excepted. tor, and it was not for witness to serve them with a copy."

John W. Douglass, one of the commissioners for the district in office at the time of the The evidence was then closed. The trial appointment of the referee, testified on be-judge granted a request of the defendant that half of the plaintiff that the intention of the the jury be instructed to render a verdict for ..68]*commissioners was to make the reference the defendant in the first action, and an excepfinal. The evidence for the plaintiff was tion was duly noted on behalf of the adminisclosed with the testimony of the plaintiff, tratrix. The trial judge also granted a rewho stated, in effect, that the letter of Sep-quest of counsel for the plaintiff, in substance tember 16, 1891, had been sent to the com- that the jury be instructed to find for the missioners with her approval, and that noth- | plaintiff if they found from the evidence that ing had been paid her on account of the the commissioners accepted the proposition award. For the defendant, John W. Ross, contained in Mr. Williamson's letter, that in who was a commissioner at the time of the pursuance of such acceptance the commissionappointment of Mr. Jchnson, testified that heers made the order of January 11, 1892, and was an attorney at law, knew the difference between an arbitration and order of reference for a report, and that his understanding when the appointment of Mr. Johnson as referee was made was that the appointment was not of an arbitrator, but was simply one of refer- The following requests for instructions were ence. He further testified "there was no then asked on behalf of the defendant, which record of the appointment of the referee, ex-being overruled, separate exceptions were cept the one in evidence, unless the pencil memorandum may be taken as a record." The witness denied that he made statements attributed to him by the witness for the plaintiff, to the effect that it was the intention of the commissioners that the decision of Mr. Johnson should be final.

After Mr. Ross had concluded his testimony, the record and proceedings in action No. 24,279 were introduced in evidence on behalf of the defendant. On the settlement of the bill of exceptions a dispute arose as to whether the papers attached to the report of the referee had been put in evidence by the

that the hearing before Mr Johnson was proceeded with under such appointment, and the declaration amended at the hearing by consent of counsel. An exception was taken to the granting of this instruction.

noted:

"2. The jury are instructed, on the whole evidence in cause No. 34,564, they are to render a verdict for the defendant.

"3. The jury are instructed that the commissioners of the District of Columbia were without authority to agree to submit the matters in controversy in the case of Bailey, Adm'r, v. The District of Columbia, at law, No. 24,279, to the final award of an arbitrator, but that said commissioners had authority to agree to refer the case for the award and report of a referee, subject to the approv al of the court."

ceded that the words "in the United States" | facture, but we may say generally that an should be considered as being incorporated article which can only be used for a particular into the section after the word "manufac purpose, in which the process of manufacture tured." The provision would be senseless stops short of the completed article, can only without this interpolation. The objects of the be said to be partially manufactured within section were evidently not only to build up the meaning of this section; nor can we rean export trade, but to encourage manufac- gard the mere assembling and nailing totures in this country, where such manu-gether of parts complete in themselves and factures are intended for exportation, by destined for a particular purpose as a comgranting a rebate of duties upon the raw or plete and separate manufacture. Thus, prepared materials imported, and thus en- chairs are made of bottoms, backs, legs, and abling the manufacturer to compete in for rounds, each one of these parts being_made eign markets with the same articles manu- separately and in large quantities. If imfactured in other countries. In determining ported in this condition from abroad, and the whether the articles in question were wholly parts were assembled and glued or screwed manufactured in the United States, this ob- together here, we think it entirely clear that ject should be borne steadily in mind. such chairs would not be wholly manuThe primary meaning of the word "manufactured in the United States; and the same facture" is something made by hand, as distinguished from a natural growth; but as machinery has largely supplanted this primitive method, the word is now ordinarily used to denote an article upon the material of which labor has been expended to make the finished product. Ordinarily, the article so manufactured takes a different form, or at least subserves a different purpose from the original materials; and usually it is given a different name. Raw materials may be and often are subjected to successive processes of manufacture, each one of which is complete in itself, but several of which may be required to make the final product. Thus, logs are first manufactured into boards, planks, joists, scantlings, etc., and then by entirely different processes are fashioned into boxes, furniture, doors, window sashes, trimmings, and the thousand and one articles manufactured wholly or in part of wood. The steel spring of a watch is made ultimately from iron ore, but by a large number of processes or transformations, each successive step in which is a distinct process of manufacture, and for which the article so manufactured receives a different name.

The material of which each manufacture is formed, and to which reference is made in [2173019, is not necessarily the original raw material-in this case the tree or log-but the product of a prior manufacture; the finished product of one manufacture thus becoming the material of the next in rank. This case, then, resolves itself into the question whether the materials out of which these boxes were constructed were the boards which were manufactured in Canada or the shooks which were imported into the United States.

may be said of the staves heads, and hoops which constitute a barrel Upon the theory of the claimant, if all the parts which constitute a wooden house were made separately, as they sometimes are, and imported from abroad and put together in this country in the form of a house, it would follow that the house must be said to have been wholly constructed in this country.

It may be said generally, although not universally, that a complete manufacture is either the ultimate product of prior *succes-[218) sive manufactures, such as a watch spring, or a penknife, or an intermediate product which may be used for different purposes, such for instance as pig iron, iron bars, lumber, or cloth; while a partial manufacture is a mere stage in the development of the material toward an ultimate and predestined product, such for instance as the different parts of a watch which need only to be put together to make the finished article. If, for instance, the wheels, chain, springs, dial, hands, and case of a watch were all imported from abroad, and merely put together in this country, we do not think it could be said that the watch was wholly manufactured within the United States. The same remark we think may be made with reference to the shooks in this case, which were practically worthless except for being put together for a box of a definite size.

The distinction here made was alluded to in the opinion of this court in Worthington v. Robbins, 139 U. S. 337 [35: 181], in which the question arose whether "white hard enamel," used for various purposes, including watch dials, was dutiable as "watch materials," or as a simple manufacture. In deivering the opinion of the court Mr. Justice While the planing and cutting of the boards Blatchford said: "The article in question was, in Canada into the requisite lengths and to all intents and purposes, raw material. If shapes for the sides, ends, tops, and bottoms it were to be classed as 'watch materials,' it of the boxes, was doubtless a partial manu- would follow that any metal which could ulfacture, it was not a complete one, since the timately be used, and was ultimately used, boards so cut are not adaptable as material in the manufacture of a watch, but could be for other and different objects of manu- used for other purposes also, would be dutiafacture, but were designed and appropriate ble as 'watch materials.' In order to be only for a particular purpose, i. e., for the 'watch materials' the article must in itself manufacture of boxes of a prescribed size, and bear marks of its special adaptation for use were useless for any other purpose. It is in making watches. The fact that the arnot always easy to determine the difference ticle in question was used in the manufacture between a complete and a partial manu-of watches has no relation to the condition

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