and would not license to others within said territory; and that the lessees should pay a rental of six dollars per annum for each instrument delivered, until returned or destroyed, and 25 per cent. of all profits realized; and that the lessors should protect the lessees against all suits for infringement of other patents.

It appears that four of the instruments were put up for the use of Albright, on his premises, and the other 44 for the use of other persons. The defendant and Ghegan testify that Albright entered into the arrangement with the People's Telephone Company merely for the accommodation of Ghegan, (whose business was to put up telephones,) as the company would not give the lease to Ghegan alone; and that Albright took no part in the business. The People's Telephone Company, however, looked to both parties, and charged both with the instruments delivered to Ghegan. It also appears that the complainant filed a bill against Ghegan for infringement, shortly before the bill in the present case was filed against Albright, and that Albright applied to the People's Company to take care of the suit against Ghegan, and procured from them a fee for counsel. When the present suit was commenced, Albright again applied to the People's Company to defend this suit in conformity with the contract. And as late as March, 1884, he filed a petition for a rehearing in the present case, verified by his affidavit, in which, among other things, he stated as follows:

"Your petitioner further shows that before and ever since the beginning of this suit he was under a contract with the People's Telephone and Telegraph Company, whereby, among other things, he and one John J. Ghegan were licensees for the state of New Jersey, for the use of telephones made under letters patent controlled by said company, and whereby the said company was to guaranty and defend your petitioner against all suits for infringement. That your petitioner duly notified said last-named company of this suit against him, and called upon said company to defend him, and that they refused to do so."

-And this refusal was one ground on which he sought a rehearing of the case. This is a clear acknowledgment by Albright that the contract with the People's Company was in full force, and binding on him as well as on Ghegan. All the offending machines were put up under this contract, and in pursuance of it, and would not have been put up without it, so that it may be justly said that Albright, as a party to this contract, joined in inducing and bringing about the infringement complained of. Although Albright chose to let Ghegan have all the benefits of the contract, he was equally responsible with him for the consequences of putting up the instruments, equally responsible to the People's Telephone Company, and equally responsible to the complainant, whose patents were infringed. He must be deemed to have joined Ghegan in putting them into use, to have aided and abetted in the act. The infringement of the complainant's patents was, therefore, a joint tort of Ghegan and the defendant.

But the defendant raised another point of defense. The complainants sued Ghegan and Albright separately, (which they had a right to

do,) and it is alleged that a recovery was had against Ghegan, and that the decree was satisfied by him; and it is claimed that this is a bar to any recovery of damages against the defendant Albright. The facts are that a decree was rendered against Ghegan for an injunction and an account. A few days afterwards the complainant waived the account, and took a decree for nominal damages of one dollar against Ghegan, together with costs to be taxed. The costs were taxed at $293.67. Ghegan testifies that on the twenty-fifth of February, 1885, he sent one dollar to the complainant's attorneys, in a registered letter, in settlement of the damages referred to in the decree against himself, and that he received a return card in due course of mails, acknowledging the receipt of the registered letter. He does not give a copy, or state the contents, of the letter sent by himself, and no answer appears to have been returned by the attorneys. This is all the proof contained in the record of satisfaction of the decree against Ghegan. I think it is entirely insufficient. The decree was for damages and costs, and amounted to nearly $300, and the payment of one dollar could not be a satisfaction of $300, even if the attorneys of the complainant accepted it as such, unless a release were given. The proof that the one dollar sent by mail was accepted and received by the attorneys, in full satisfaction of the damages, as distinguished from the costs, if competent at all, should have been clear and explicit, which it is not.

By the English rule a mere judgment against one joint trespasser or wrong-doer is a bar to a recovery against the others. In this country there must be both recovery and satisfaction. Bigelow, Estop. 103113; Add. Torts, (4th Ed.) 1158. Whether the satisfaction of a judgment taken for mere nominal damages, upon a distinct waiver of actual damages, would be regarded as a full satisfaction for the tort, sufficient to bar a recovery against a joint wrong-doer, is questionable. A waiver of damages against one wrong-doer can hardly be regarded as satisfaction for the wrong done. Suppose the decree taken against Ghegan had been simply for a perpetual injunction, without any mention of damages or profits, would that have been a bar to a recovery against Albright? I hardly think it could be. However, it is unnecessary to decide this point. I do not think that there is sufficient proof of satisfaction in the present case to create an estoppel under the American rule.

My conclusion is that the defendant Albright was jointly liable with Ghegan to the complainant for all the instruments put up for use under the joint lease to him and Ghegan; and that the exceptions to the report must be overruled, and the report confirmed; and that a final decree should be entered for the complainant in conformity with the report, and for a perpetual injunction, etc.

v.32F.no.4-19

STARLING V. ST. PAUL PLOW-WORKS.

(Circuit Court, D. Minnesota. October 10, 1887.)

1. PATENTS FOR INVENTIONS-CONTRACT FOR ROYALTY-BREACH.

By the terms of a contract between the plaintiff and the defendant, the latter was licensed to manufacture and sell a plow, of which the plaintiff was the inventor, upon payment of a royalty for each plow so manufactured and sold. Held, that the manufacture by the defendant of plows called by a different name, but substantially the same as defendant's invention, was a breach of the contract, if defendant failed to pay the royalty, and that plaintiff might elect whether to sue for the royalty or for infringement. 2. SAME-ANTICIPATION-PLOWS.

Patent No. 127,878, for an "improvement in plows," consisted of a sleeve around the axle which is revolved by a lever affixed to it; the sleeve having two arms projecting towards the rear, and pivoted to the plow-beam underneath. By the operation of the lever the elbow is raised, and a trigger pivoted on the lever falls into a notch on a circular plate fastened on the right of the axle, or its connections, with arms running to the tongue. The plow is thus held up while turning or being taken from the field. It can be locked in the ground, or out of it, by inserting a pin in holes made for the purpose in the circular plate, but the plow cannot be regulated while in motion. The plaintiff's invention consisted of a crooked axle, a crank-bar, bent twice at right angles, and a lever so arranged that while in motion the point of the plow could be raised by the operation of the lever, and the horses made to raise it out of the ground; or it could be locked in the ground at any depth, or out at any height. Held, that the former invention did not have the same combination as the latter for raising and lowering, and therefore was not an anticipation of the plaintiff's invention.

Action on a Contract whereby defendant agreed to pay a royalty for the sale of certain patented plows.

Frackelton & Careins, for plaintiff.

John B. & W. H. Sanborn, for defendant.

NELSON, J. A motion for a new trial is made by defendant upon the Allowing grounds: "First, on account of accident and surprise which ordinary prudence could not have guarded against; second, on the ground that the decision is not justified by the evidence, and is contrary to law; third, on the ground of newly-discovered evidence, material to the petitioner, which it could not with reasonable diligence have discovered and produced at the trial; fourth, on account of error in law occurring at the trial, and excepted to by the petitioner." The trial was before the court without a jury, and was very thorough. Many questions arose, and, if error was committed, it was in allowing the defendant to show want of novelty and patentability of the plaintiff's plow. The action was brought upon a contract in which the defendant became a licensee to manufacture and sell the plaintiff's invention called the "Starling Plow," on payment of a royalty for each and every "Starling Plow" manufactured and sold. A breach of the contract is alleged, and a recovery sought and obtained for the amount of royalties upon plows sold and not accounted for and paid the defendant. If the defendant manufactured plows called by a different name, but substantially the same as defendant's invention, invading his rights under the patent, or using

devices claimed in the plaintiff's patent, it is a breach of the contract if defendant fails to pay the royalty therein provided, and on a repudiation of the contract by the licensee, the licensor and patentee can either sue for royalties unpaid or for infringement. Cohn v. Railroad Co., 3 Ban. & A. 572, and cases cited. The election to sue for a breach of the contract is made in this case, and sustained. The court decided the defendant did infringe, and gave judgment.

I dismiss all of the reasons assigned for a new trial with one exception, and will briefly consider that one, viz.: "Newly-discovered evidence, material for the petitioner, which it could not with reasonable diligence have discovered and produced at the trial." This evidence is a patent, No. 127,878, issued June 11, 1872, to William G. Haslup, assignor, for an "improvement in plows." If the newly-discovered evidence which is submitted would not change the result of the verdict and judgment, it is well settled that a new trial should not be granted. The letters patent are attached to the petition for a new trial. I have examined the specifications and claims, and, if it had been offered under the ruling of the court at the trial, it could not have changed the result.

The first claim of the plaintiff's patent is "for a crank-bar, combined with the plow-beam, lever, and axle, as and for the purpose set forth, so that the horses are made to raise the plow out of the ground.”

The plaintiff's plow has a crooked axle, and a crank-bar bent twice at right angles, passing through a box bolted to the plow-beam towards the rear end. The forward end of this bar, near the driver's seat or right wheel of the sulky, rides upon the inner end of the journal. The end of a spring lever, which projects upward along a curved bar on the right side of the driver's seat, is connected rigidly with this end of the crankbar. The curved bar, with notches on the outer side to receive this upright lever, is attached to the axle, and part of a brace running from the axle to the tongue. The crank-bar thus bolted to the plow-beam can be held in any position to which the lever is adjusted. By this device and manner of construction and bolting, the plow can be locked, either in the ground at any depth, or up at any height, at the will of the driver. and in the operation of raising the plow the point comes up first. By means of the lever the point turns up, and the horses are made to raise the plow out of the ground.

In the Haslup patent sulky plow there is a sleeve around the axle proper, which is revolved by a lever affixed to it. This sleeve has two arms projecting towards the rear, and pivoted to the plow-beam underneath. When the lever is pushed forward, the plow is raised, and a trigger pivoted to the lever falls into a notch on a circular plate, fastened on the right of the axle, or its connection, with arms running to the tongue. The plow is thus held up while it is turned or taken from the field. The plow can be locked in the ground, or depth to be plowed determined, only by inserting a pin in holes made for that purpose in the circular plate fastened as heretofore stated. The driver cannot regulate the depth to be plowed, and lock the plow in the ground, while it is in motion. The pin prevents the plow being raised by the lever, and

it could not be operated while in motion so as to raise the point of the plow, and make the horses pull it out of the ground.

The Haslup plow does not have the combination of the plaintiff for the purposes described in his patent, and does not anticipate his invention. The motion for a new trial is denied.

CORNELY v. MARCKWALD.

(Circuit Court, S. D. New York. March 6, 1885.)

1. PATENTS FOR INVENTIONS-INFRINGEMENT DAMAGES.

On an accounting under a decree finding that the defendant had infringed, all that the plaintiff proved upon the question of royalty was that he had instituted 10 or 11 suits against infringers, and in all the cases except one a settlement had been had between the parties-in some instances before and in others after a decree-by the payment of $50 for each infringing machine sold or used by the respective defendants. Held, that the evidence was insufficient to establish a price as for a fixed royalty.

2. SAME.

A patentee, in whose favor a decree of infringement has been entered, is not entitled to an allowance for the loss sustained by him by reason of the diversion of sales of the patented article, which he would have made but for the sales made by the defendant, when he fails upon the accounting to put in any evidence showing the cost of the articles.

3. SAME.

On an accounting for an infringement it appeared that the patentee had gradually reduced his prices from the time he first put his patented article on the market, down to the time when the defendant commenced to compete, and that this reduction had continued after the defendant was enjoined. Held, that the loss sustained by reason of the reduction in prices owing to the competition of the defendant was conjectural, and not the subject of damages.

In Equity. On exceptions to master's report.
William H. L. Lee, for plaintiff.

William A. Coursen, for defendant.

WALLACE, J. The complainant's exceptions to the report of the master upon the accounting under the interlocutory decree raise the question whether the master erred in finding that no damages were established by the proofs before him. The complainant insists that he is entitled to recover, upon the theory that he proved an established royalty for the use of his patented invention when licenses were granted by him to others. It appears that he instituted 19 or 11 suits against infringers, and in all these cases, except one, a settlement was made between the parties-in some instances before and in others after a decree-by the payment of the sum of $50 for each infringing machine sold. or used by the respective defendants. No other testimony was offered bearing upon the question of royalty. Whatever effect it might seem proper to give this testimony were the question an open one, in view of the decision in Westcott v. Rude, 19 Fed. Rep 830, where it was carefully con