able expenditure.

He said: "So far as the evidence shows, any one can go to St. Gall, and can there buy these very cotton embroideries, not precisely of the same pattern as Mr. Muser's, but he can get a selection from a large variety of assorted patterns, and upon paying the cost of the cloth, stitching, bleaching, cutting up, and boxing, and the additional charge, he can obtain these goods in St. Gall. He may have to wait for a week, or three weeks, or five or six weeks; but the title to the goods changes hands in St. Gall, and the purchaser may have them delivered to him there, if he chooses to wait and take them."

We concur in this view, and in the argument that the appraisers, in treating the goods as having a true market value, evidently considered that, while such value might vary as the quality of the materials and size or intricacy of the patterns varied, it could be satisfactorily ascertained by a general computation of all charges incurred by the commissionnaire, who occupied the position of a wholesale dealer, including that for his own service, and that the elements entering into the true valuation of the commodity would embrace such items as office rent, wages of employés, superintendence, interest on capital, risk, etc.; so that what was called manufacturers' profit was merely a percentage to cover the miscellaneous expenses and allowances necessary to be taken into account in reaching the true valuation of the goods.

In Re Cliquot's Champagne, Judge Hoffman defined the market value of goods to be "the price at which the owner of the goods or the producer holds them for sale; the price at which they are freely offered in the market to all the world; such prices as dealers in the goods are willing to receive, and purchasers are made to pay, when the goods are bought and sold in the ordinary course of trade," and the definition was approved by this court. 3 Wall. 114, 125, 142.

We regard it as quite sufficient for the inquiry here, and cannot discover any legal ground which would have justified the circuit court in overhauling the judgment of the revenue officials that the mode of doing business in respect of these embroideries at St. Gall afforded the data for a "true and actual market value and wholesale price," within the intent and meaning of the act, for the commissionnaires stood in the place of wholesale dealers, and the items made up the price they were willing to receive and purchasers were made to pay in the ordinary course of the trade.

It is argued for the collector that much of the evidence which was admitted was incompetent, but, waiving that question, we are of opinion that the circuit court did not err in directing a verdict for the defendant.

We do not consider it necessary to specifically review the 51 errors assigned in the brief of plaintiffs in error. What we have v.15s.c.-6

said disposes of those relating to the direc tion to the jury, and the others, which present exceptions to the rulings of the circuit court in the admission or exclusion of evidence, require but few observations. Some of the questions to which objections were sustained were propounded as to matters which were fully brought out elsewhere in the evidence, and the exclusion of merely cumulative testimony cannot be said to have injured the plaintiffs, since that which was admitted was sufficient to test the correctness of the direction of the verdict. Some of them were aimed at eliciting the expenses of Muser Bros.' establishment at St. Gall, the total expenditures there, what they paid their de signer, the amount of embroideries obtained, and so on, in 1887; but all this was immaterial. The question was not whether, through the special advantages which Muser Bros. enjoyed, the actual cost to them may have been less than what was decided to be the actual dutiable value of their goods, for the latter was determined by the general market value and wholesale price of all goods of the same description.

Other questions went to the grounds of the decision of the revenue officers, and involved the extent, if at all, to which they might be examined in relation thereto. For instance, the general appraiser was called as a witness, and asked the following questions: "Q. In making your report upon these several invoices, and in adding ten per cent. to the invoice value, did you or not take into consideration as a part of that ten per cent. any manufacturer's profit? Q. Did you, in making that addition, ascertain the cost of the cloth, of the stitching, the bleaching, and finishing, and then add to that sum, as a part of the ten per cent., anything for charges incurred in the purchase and preparation of said goods for shipment? Q. Upon what ground, and to cover what, did you add the ten per cent. or the sum that you did add to the invoice?" Objections to these questions were severally sustained, and exceptions takUpon the case made, these inquiries were either immaterial or incompetent. It is not pretended that the action of the appraisers was in*bad faith or in any respect fraudulent. The issue made by the protest was that the valuation was illegal, because including certain specified incidental expenses (one or more of them), as for designs, salary of buyer, clerk hire, rent, interest, and percentage on aggregate cost. Upon the theory of an ascertainable market value at St. Gall, these were matters to be considered and in a sense included, but not in the sense of substantive items, independent of market value, added thereto, to make dutiable value.

en.

Plaintiff contended that the dutiable value consisted in the market price of the embroideries in the gray, according to the number of stitches in a given pattern, plus the market value of the muslin and the expenses for laundrying and finishing, and no more; but,

as we have indicated, the circuit court rightly declined to sustain that contention.

The law imposed the duty upon the general appraiser and the merchant appraiser to ascertain and determine the value, and it was provided that in case of disagreement the collector should decide between them. lector affirmed the decision of the general appraiser, and the valuation became fixed accordingly.

(155 U. S. 221)

DELAND v. PLATTE COUNTY. (December 3, 1894.) No. 82.

These officers were appointed and required to pronounce a judgment in each case, and the proper operation of the revenue system necessitated, in the opinion of congress, that their decisions should be final and conclusive. The presumption is that a sworn officer, acting in the discharge of his duty, upon a subject over which jurisdiction is given him, has acted rightly, and there is nothing in this record which in the slightest degree tends to indicate that the general appraiser did not endeavor by all reasonable ways and means to arrive at the true and actual market value. Among such ways and means are market price or the quotations for a given day; amounts realized on sales, public and pri vate; and, in some instances, the cost of production. The course of business at St. Gall in respect of these embroideries was peculiar, and to reach a result, in estimating the value, required the consideration of many elements making up the amount which actually represented the pecuniary basis of transactions. How these various elements impressed the general appraiser, and what grounds influenced or controlled his mental processes, were matters in respect of which he could not be interrogated, since his decision, when approved by the collector, was final, and could not be reviewed, and the verdict of a jury substituted. The proper evidence of the decision of the appraisers and of the collector was to be found in their official returns; and if they acted without fraud, and within the powers conferred on them by statute, their decision could not be impeached by requiring them to disclose the reasons which impelled their conclusions, or by proving remarks they may have made in the premises.

The adjudication was of true market value, and did not consist in taking market value, and adding the cost and charges specified in section 2907, in order to get at dutiable value. The percentage of the commissionnaires was not the "commission" named in that section, which plainly refers to other agents than these St. Gall dealers; and, moreover, all these ingredients must be regarded as simply taken into consideration in making up an opinion, and the valuation could not be picked to pieces by an investigation into the sources of information which may have influenced the officers in the judgment they pronounced. The seventh section of the act of March 3, 1883, had no application.

We think that the cause was properly tried, and that the record exhibits no material error, if any. Judgment affirmed.

· REVIEW OF JUDG MENT ON TRIAL BY COURT OF ACTION AT LAW-STATE PRACTICE.

The judgment of a United States circuit court, entered on findings by the court on trial of an action of assumpsit, a jury having been waived by the parties, cannot be reviewed by the supreme court on appeal, but only on writ of error, whatever may be the course pursued in courts of the state under its statutes, as the appellate jurisdiction of the supreme court is regulated by the acts of congress, which have generally observed the distinction between the two modes of review.

Appeal from the Circuit Court of the United States for the Western District of Missouri.

George A. Sanders, for appellant.

Mr. Chief Justice FULLER. This was an action of assumpsit, brought by F. N. Deland against the county of Platte to recover on certain bonds and coupons in the petition set forth.

The cause was submitted to the court for trial, a jury having been waived by agreement of the parties. The court made findings of fact, and gave an opinion which concluded thus: "On the facts of this case I declare the law to be that the plaintiff cannot recover." 54 Fed. 823.

November 5, 1890, judgment was entered for the defendant, preceded by the recital 2 of a general finding in its favor. Motion for new trial was made and overruled, and defendant moved "for appeal, which motion was by the court sustained, and appeal allowed," and plaintiff was granted time for bill of exceptions. The record then states that plaintiff presented "his bond for appeal, which bond was approved by the clerk and filed in said cause"; but the bond is not set out. Then follows an assignment of errors and bill of exceptions. No writ of error was issued or citation signed, and no appearance has been entered for the county of Platte. The record was filed in this court February 2, 1891.

In many jurisdictions an appeal from a court of general jurisdiction is in the nature of a writ of error, but that is not so in respect of the circuit courts of the United States, as to which the distinction between the two modes of review has generally, if not always, been observed in the acts of congress.

Whatever the course pursued in the courts of the state of Missouri under the statutes of that state in relation to the allowance of appeals, the appellate jurisdiction of this court is regulated by the acts of congress, and final judgments of the circuit court in cases such as this can only be revised on writ of error. Appeal dismissed.

(155 U. S. 265)

WARREN et al. v. KEEP.

(December 3, 1894.)

No. 60.

REVIEW ON APPEAL-PATENTS FOR INVENTIONSINFRINGEMENT-PROFITS-NOMINAL DAMAGES. 1. Conclusions of fact of a master and trial court, on conflicting evidence, in an equity case, will not be disturbed on appeal, unless some obvious error is pointed out.

2. In an action for infringement on a patent for stove grates, it appeared that the patented grate was for ordinary stoves, and was entirely new and patentable, both in all its parts and as an entirety; that defendants consented to a decree which precluded them from contending that complainant was to be restricted, in his demand for damages, to any one feature or part of the grate; and that the grates on which profits were assessed were not sold as an incident to any particular stove, but as independent, marketable articles. Held, that complainant was properly awarded the entire profits on the grates so sold.

3. The fact that defendants, at the time they made and sold the grates in question, made and sold at the same price another kind of grate, did not limit complainant's right of recovery to nominal damages.

Appeal from the Circuit Court of the United States for the Northern District of New York. Bill by William I. Keep against John Hobert Warren and others for infringement of a patent. There was a judgment for complainant (42 Fed. 896), and defendants appeal. Affirmed.

Esek Cowen, for appellants. N. Davenport, for appellee.

'Mr. Justice SHIRAS delivered the opinion of the court.

On the 14th day of March, 1881, William 1. Keep filed a bill of complaint in the circuit court of the United States for the Northern district of New York against John Hobert Warren, Joseph W. Fuller, George A. Wells, and Walter P. Warren, alleging complainant's ownership of several letters patent, and infringement by the defendants.

The subject-matter of the letters patent was certain devices and designs for baseburning stoves and stove grates.

The case was put at issue by an answer and replication, but on the 20th day of March, 1883, a decree was entered by consent, declaring the validity of the letters patent set forth in the bill, and infringement by the defendants of some of them.

The decree directed that an account should be taken for profits and damages upon all the patents so declared to be infringed, but contained the following provision: "That such gains, profits, damages, and accounting shall not apply to any stoves made or sold by said defendants before February 1, 1876, nor to any grates made or sold by said defendants before that date, except as to grates covered by said letters patent No. 139,583, and supplied by defendants after January 1, 1876, to stoves originally sold by them without such grates."

The master found that between January 1,

1876, and January 1, 1882, the defendants sold grates upon which the profits amounted to $11,363.54, and that amount, with six cents damages and costs, was awarded by the master to and in favor of the complainant.

Exceptions to this report were filed by the defendants, alleging that the evidence did not sustain the master in finding the number of the infringing grates sold by the defendants, nor in finding the amount of profits which the de-, fendants had realized from the infringement.

The court below sustained an exception to the action of the master in allowing the sum of $348 as profits on 400 grates, made and sold by the defendants between January 1, 1879, and July 1, 1879, but overruled the other exceptions, and entered a final decree in favor of the complainant for the sum of $10,510.86, with costs, from which decree the defendants appealed to this court.

The first error insisted upon is that the evidence did not justify the master in finding the number of grates sold by the defendants during the six years over which the accounting extended. The defendants' contention is not that due effect was not given to the evidence adduced on their behalf, but that the plaintiff's evidence, consisting chiefly of the testimony of Keep himself, did not clearly establish the number of the infringing grates sold..

Our examination of this part of the subject has not enabled us to approve the defendants' contention. The master's action in restricting his finding to grates sold as separate and independent articles, and in excluding from the account all grates which were sold in or with a stove, was quite as favorable to the defendants as they had any right to claim. In finding the number of grates sold during the period in question, as separate articles, the master depended chiefly on the entries in the defendants' books, as testified to and explained on the part of the complainant by Keep, who had been engaged with the defendants for more than eight years, and claimed to be thoroughly acquainted with their methods of business, and, on the part of the defendants, by L. W. Drake, who was their assistant superintendent. There was a considerable amount of this evidence, and it was to some extent conflicting. The master acted in view of this evidence, and the court below concurred in his finding, except in some unimportant particulars. As no obvious error or mistake has been pointed out to us, their conclusions must be permitted to stand. Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894; Crawford v. Neal, 144 U. S. 585, 12 Sup. Ct. 759; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821.

Assuming that the number of infringing, grates sold by the defendants was correctly; found, we have next to consider whether the master erred in awarding to the complainant the entire profits made upon the grates so sold. The appellees' contention is that

there was no evidence tending to show how much of the profits was due to the complainant's invention, and that hence he was entitled to recover nominal damages only. It is, no doubt, well settled that, where a patent is for a particular part of an existing machine, it is not sufficient to ascertain the profits on the whole machine, but it must be shown what portion of the profits is due to the particular invention secured by the patent in suit. Blake v. Robertson, 94 U. S. 728; Dobson v. Carpet Co., 114 U. S. 439, 5 Sup. Ct. 945. But it is equally true that where the patented invention is for a new article of manufacture, which is sold separately, the patentee is entitled to damages arising from the manufacture and sale of the entire article. Manufacturing Co. v. Cowing, 105 U. S. 258; Hurlbut v. Schillinger, 130 U. S. 456, 9 Sup. Ct. 584; Crosby Steam Gage & Valve Co. v. Consolidated Safety Valve Co., 141 U. S. 441, 12 Sup. Ct. 49.

The grates, on whose sale the master assessed profits, were not sold as an incident to any particular stove, but as an independent, marketable article, and the infringers must pay the entire profits realized from the sale thereof. The statement that, at this late day, there can be a grate, for use in ordinary stoves, which is entirely new, and patentable in all its parts and as an entirety is somewhat surprising; but that is what we learn from this record. The patent infringed contains eight claims, of which seven are for the several parts of the grate, and the eighth for the entire device, and the defendants are precluded by the decree, to which they consented, from contending that the plaintiff is to be restricted, in his demand for damages, to any one feature or part of the grate.

It is further claimed that the master ought to have reported nominal damages only, because there was evidence before him to the effect that the defendants, at the time they made and sold the complainant's grate, likewise made and sold another kind of grate, called the "Hathaway grate," and that the same price was received for both kinds. From this it is said to follow that there was no advantage derived by the defendants from the manufacture and sale of the complainant's grate, "above that which they would have received had they made and sold the Hathaway grate only. We do not think that the consequence suggested necessarily follows as matter of fact, nor that it has any relevancy as matter of law.

Mowry v. Whitney, 14 Wall. 620, and Littlefield v. Perry, 21 Wall. 205, which are relied on by the defendants to sustain this contention, were both cases in which the patented features were so blended with other features not covered by the patent that it became necessary to inquire into what portion of the defendants' profits was due to the patented features, and to apportion the profits accordingly. Thus it was said in Mowry v.

Whitney: "The patent is for an entire process, made up of several constituents. The patentee does not claim to have been the inventor of the constituents. The exclusive use of them singly is not secured to him, What is secured is their use when arranged in the process."

In Littlefield v. Perry the patent was for certain improvements in cooking stoves, and the court below, having found an infringement, decreed an account "of all the profits, gains, and advantages which the aid de fendants have received, or which have arisen or accrued to them, from the manufacture, use, or sale of stoves embracing the improvements described in and covered by the said letters patent." This court said: "The decree is, as we think, too broad. * • The order is to account for all profits received from the manufacture, etc., of stoves embracing the improvements covered by any of the patents. This would cover all the profits made upon a stove having in it any one of the improvements patented. The true inquiry is as to the profits which the defendants have realized as the consequence of the improper use of these improvements. Such profits belong to the plaintiff, and should be accounted for to him."

We think the court below was justified in saying: "The complainant's grate was made and sold separately from stoves. Unquestionably it was intended for use in stoves; but so are many devices that may be the subject of distinct inventions. It was not sold for use in one pattern of stove alone; it could be used in many different stoves. Although in general appearance like other grates, it is so constructed that no part can be used upon any other grate, and no parts of other grates can be used upon it. Remove the patented features, and nothing remains. Although it is an improvement upon stoves, the complainant is not seeking to recover the profits upon the stoves, but upon the improvement only. The rule requiring that the profits arising from the patented features must be separated from those arising from the unpatented features has little application in a case where every feature is patented."

Finally, it is contended that the master and the court below erred in not allowing credit to the defendants for a manufacturer's profit.

We are relieved from considering what might be a problem of some difficulty-namely, when a complainant's damages are to be measured by the profits of the defendant, what credit should be allowed to the latter, as a mere agency for producing the patented article, for a so-called "manufacturer's profit"-by the fact that the defendants, neither before the master nor in the court below, made any claim for such an allowance, or offered any evidence by which it could be estimated. The complainant testified as to the cost of making the grates, and stated

1. The court of claims has no jurisdiction of claims against the government for mere torts.

2. The architect of the capitol made a contract with one C. for the construction of concrete pavement in the capitol grounds, and C. employed a method of constructing such pavement, covered by a patent to S., who afterwards, and long subsequent to the completion of the pavement and its acceptance by the government, filed a petition in the court of claims, claiming damages from the United States. Held, that such claim was not one founded upon the constitution of the United States, within the statute defining the jurisdiction of the court of claims (Act Cong. March 3, 1887), as a taking of private property for public use without just compensation, nor one founded upon any contract, but a claim for a mere tort. Mr. Justice Harlan and Mr. Justice Shiras, dissenting. 24 Ct. Cl. 278. affirmed.

3. Held, further, that the mere fact of the use of a patented process in the construction of the pavement did not justify a claim that the government, by accepting and using the completed structure, had appropriated any property of the patentee. Mr. Justice Harlan and Mr. Justice Shiras, dissenting. 24 Ct. Cl. 278, affirmed.

Appeal from the Court of Claims.

This was a petition in the court of claims by John J. Schillinger and others against the United States to recover damages for the wrongful use of a patented invention. The court of claims dismissed the petition. Petitioners appeal.

On July 19, 1870, a patent was issued to John J. Schillinger for an improvement in concrete pavement. The claim of the patent was in these words:

"The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose described."

A reissue was granted May 2, 1871. The claims in the reissue were thus stated:

(1) A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described.

“(2) The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose set forth."

On February 27, 1875, Schillinger filed in the patent oflice a disclaimer; which, after stating the language of the specification disclaimed, added: "Your petitioner hereby dis

claims the forming of blocks from plastic ma terial without interposing anything between their joints while in the process of formation."

Thereafter the archetect of the capitol invited proposals for a concrete pavenient in the capitol grounds, and on September 2, 1875, entered into a contract with G. W. Cook for the laying of such pavement. It does not appear that in the proposals, specifications, or contract there was in terms any reference to or description of the Schillinger patent.

Frederick Law Olmsted was the person who prepared the plans and specifications, and in the contract it was provided as fol lows:

"The pavement to be laid with free joints, in the best manner, the courses running diagonally, and arranged around the curved parts to the satisfaction of the said Fred. Law Olmsted.

"It is understood and agreed by the party of the second part that in the event of any legal proceedings being taken by other parties against the contractor of the United States for the infringement of any patent or claimed patent during the execution of the work the contractor shall hold the United States harmless; and, if said proceedings tend to create delay in the prosecution of the work, the United States shall have the right to immediately employ other parties to complete the same, and the contractor shall reimburse the United States in any extra amount it may have to pay for such completion over and above the amount which the contractor would have been entitled to for the same work."

This is the only language found in the contract which in any manner suggests the use, or possibility of use, of the Schillinger patent. The contract price was 281⁄2 cents per square foot. Certain of the claimants who had acquired by assignment the right to use the Schillinger patent in the District of Columbia were bidders for such contract, and proposed to do the work in accordance with the Schillinger patent at 45 cents per square foot. Cook proceeded to perform the contract, finished it, and received payment between Octo-* ber, 1875, and July, 1881.

On March 22, 1887, these claimants filed their petition in the court of claims, asserting full ownership of the Schillinger patent, and seeking to recover from the United States damages for the wrongful use thereof in the, construction of this pavement. The court of claims held (24 Ct. Cl. 278)*that there was no contract, either expressed or implied, on the part of the government for the use of such patent, and on that ground dismissed the petition as outside of the jurisdiction of the court.

From that judgment the claimants appealed to this court.

John C. Fay, Eppa Hunton, and V. B. Edwards, for appellants. Assistant Attorney General Conrad for the United States.