1049 For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER I. CREATION AND EXISTENCE OF THE RELATION. VIII. RENT AND ADVANCES. 223(1) (U.S.D.C.N.Y.) Lessee's counterclaim, in action for rent, seeking cancellation of instruments, held equitable.-Jones v. Peacock. 3 F. (2d) 827. LICENSES. I. FOR OCCUPATIONS AND PRIVILEGES. 8(1) (App.D.C.) Statute specifically enumerating classes of business requiring consent of adjoining property owners presumed not applicable to business not enumerated.-Coombe v. U. S. ex rel. Selis, 3 F. (2d) 714. 22 (App.D.C.) Consent of adjoining property owners not condition to issuance of license to junk dealer.-Coombe v. U. S. ex rel. Selis, 3 F. (2d) 714. 37 (App.D.C.) Police regulation requiring consent of adjoining owners to operation of junkshop held not to require consent on transfer of business, in view of administrative interpretation.-Coombe v. U. S. ex rel. Selis, 3 F. (2d) 714. Transfer of license, called to licensing officer's attention, notice that assignee has succeeded to assignor's right to have business licensed.-Id. LIENS. See Maritime Liens; Mechanics' Liens. LIMITATION OF ACTIONS. II. COMPUTATION OF PERIOD OF (H) Commercement of Action or Other peti 124 (U.S.C.C.A.S.C.) Underwriters' tion of intervention in shipper's action against owner for delay held not to state new cause of action.-U. S. v. Middleton, 3 F. (2d) 384. III. ACKNOWLEDGMENT, NEW PROMISE, AND PART PAYMENT. 157(2) (U.S.D.C.Pa.) Payment from which no promise may be implied will not toll the statute.-Charles Warner Co. v. Nazareth Cement Co., 3 F. (2d) 152. Payment held not to toll statute.-Id. LIQUOR SELLING. 223 (2) (U.S.D.C.N.Y.) Defendant in action for rent held not entitled to counterclaim for cancellation of lease, supplemental agreement, and bond on ground of failure to perfect See Intoxicating Liquors. title.-Jones v. Peacock, 3 F. (2d) 827. Defendant in action for rent held not entitled to cancellation of instruments making lease ineffectual on lessors' failure to perfect title.-Id. (D) Distress. 264 (U.S.C.C.A.Del.) Statute by which third party's goods on leased premises are made subject to distraint held not repealed by Conditional Sales Act.-In re Brittingham Mfg. Co., 3 F. (2d) 807. LEASE. See Landlord and Tenant. LEGISLATIVE POWER. See Constitutional Law, ~55. LIBEL AND SLANDER. I. WORDS AND ACTS ACTIONABLE, AND 21 (App.D.C.) Newspaper item reporting arrest of "Harry Kennedy, an attorney," held libelous as to "Harry F. Kennedy," only attorney in city. Washington Post Co. v. Kennedy, 3 F. (2d) 207. IV. ACTIONS. (B) Parties, Preliminary Proceedings, and Pleading. 77 (U.S.C.C.A.III.) Under Illinois laws, action for libel of reciprocal insurance association may not be maintained by its attorney in fact in own name.-John L. Walker Co. v. National Underwriters' Co., 3 F. (2d) 102. LITERARY PROPERTY. 2 (U.S.D.C.Ga.) Scenario of photoplay is property entitled to protection in equity.Thompson v. Famous Players-Lasky Corporation, 3 F. (2d) 707. LOGS AND LOGGING. 2 (U.S.C.C.A.Cal.) Contract for sale of timber land held valid and enforceable.-Ward v. Pearsall, 3 F. (2d) 365. MALICIOUS PROSECUTION. II. WANT OF PROBABLE CAUSE. I. NATURE, GROUNDS, AND SUBJECTMATTER IN GENERAL. (A) Under Maritime Law. 7 (U.S.C.C.A.N.Y.) Food and supplies for passengers are necessaries.-The Gdansk, 3 F. (2d) 565. 8 (U.S.C.C.A.N.Y.) Contract to supply food to alien passengers while temporarily removed to quarantine station held not to give maritime lien on vessel.-The Gdansk, 3 F.(2d) 565. 9 (U.S.D.C.Mass.) Services rendered in fumigating baggage of passengers held to give right to lien.-The Susquehanna, 3 F.(2d) 1014. 12 (U.S.C.C.A.N.Y.) Immigration Act held not to create lien on vessel for maintenance of alien passengers, temporarily removed to quarantine station.-The Gdansk, 3 F.(2d) 565. (B) Under Statutory Provisions. 24 (U.S.D.C.N.C.) Statute held not to bar proof that supplies or equipment were fur MARRIAGE. See Divorce; Husband and Wife. MASTER AND SERVANT. I. THE RELATION. (B) Statutory Regulation. 13 (U.S.C.C.A.III.) Yardmaster directing train movements held "operator, train dispatcher, or other employee," within Hours of Service Act.-Atchison, T. & S. F. Ry. Co. v. U. S., 3 F. (2d) 138. Telephone communications by yardmaster as to train movement held "orders," within Hours of Service Act.-Id. II. SERVICES AND COMPENSATION. (A) Performance of Services. 62 (U.S.D.C.Me.) Employer held to have irrevocable license to use invention made and patented by employee.-Scott v. Madison Woolen Co., 3 F. (2d) 331. (B) Wages and Other Remuneration. 69 (U.S.D.C.III.) Whether action of Labor Board is arbitrary determined by character of act itself.-Railroad Labor Board v. Robertson, 3 F. (2d) 488. III. MASTER'S LIABILITY FOR INJURIES . (B) and 101, 102(8) (U.S.C.C.A.N.J.) Reasonable care required in providing appliances and place of work. Standard Oil Co. of New Jersey v. De Vries, 3 F. (2d) 852. nished on credit to owner alone.-The Defiance, 103(1) (U.S.C.C.A.N.J.) Master's duty non 3 F. (2d) 48. Sale of marine engine to owner of vessel on credit of owner alone held not to create lien. -Id. Seller's opinion that maritime lien existed held not to create lien.-Id. Lien defeated by failure to make delivery of engine to vessel's side.-Id. One who advanced money on personal credit of master for purchase of marine engine acquired no lien.-İd. 25 (U.S.D.C.Md.) Stevedoring rendered to ship not in home port lienable.-In re Atlantic, Gulf & Pacific S. S. Co., 3 F. (2d) 309. 25 (U.S.D.C.Mass.) Services rendered in fumigating baggage of passengers held to give right to lien; "necessaries."-The Susquehanna, 3 F. (2d) 1014. 25 (U.S.D.C.Mass.) Use of canal held a "necessary."-In re Burton S. S. Co., 3 F. (2d) 1015. II. CREATION, OPERATION, AND EFFECT. 26 (U.S.C.C.A.N.Y.) Not to be extended by construction.-The Gdansk, 3 F. (2d) 565. 30 (U.S.D.C.Md.) Stevedore not required to make inquiry as to existence of nonmaritime liens. In re Atlantic, Gulf & Pacific S. S. Co., 3 F. (2d) 309. 30 (U.S.D.C.Mass.) Failure to inquire as to ownership of vessel held to defeat right to lien. The Susquehanna, 3 F. (2d) 1014. 31 (U.S.D.C.N.C.) Transferee of note acquired no lien where seller itself had no lien. -The Defiance, 3 F. (2d) 48. 37 (U.S.D.C.Me.) Lien cannot be enforced by part owner as against a stranger having a lien. The Frank Brainerd, 3 F. (2d.) 664. 37 (U.S.D.C.Md.) Assignee of freights held to have no lien and claim for supplies furnished ship on voyage in which freights were earned superior to claim of assignee.-In re Atlantic, Gulf & Pacific S. S. Co., 3 F. (2d) 311. 49 (U.S.D.C.Me.) Lien claimants held not entitled to challenge validity of attachment.The Frank Brainerd, 3 F.(2d) 664. delegable.-Standard Oil Co. of New Jersey v. De Vries, 3 F. (2d) 852. (G) Contributory Negligence of Servant. 228(3) (U.S.C.C.A.Or.) Foreman, failing to comply with statutory duty as to safety devices, held not entitled to recover for injuries. -Marks v. Bauers, 3 F. (2d) 516. (H) Actions. 285 (2) (U.S.C.C.A.N.J.) Evidence of cause of freight conductor's death held insufficient for jury-Smith v. Philadelphia & R. Ry. Co., 3 F.(2d) 604. 286(1) (U.S.C.C.A.Ala.) Railroad's negli gence in failing to guard employee, shot during strike, held question for jury.-St. Louis-San Francisco Ry. Co. v. Mills, 3 F. (2d) 882. 286(3) (U.S.C.C.A.N.J.) Negligence in not providing safe appliances and place of work question for jury.-Standard Oil Co. of New Jersey v. De Vries, 3 F. (2d) 852. in 286 (21) (U.S.C.C.A.N.J.) Negligence not providing safe gangplank or passageway from lighter to tanker held for jury.-Standard Oil Co. of New Jersey v. De Vries, 3 F. (2d) For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 132(10) (U.S.C.C.A.Ark.) Lien filed within 90 days after last item of continuing contract held to cover all materials furnished.-American Tank Co. v. Continental & Commercial Trust & Savings Bank, 3 F. (2d). 122. VII. ENFORCEMENT. II. TRUSTS MONOPOLIES. AND OTHER COMBINATIONS IN RESTRAINT OF TRADE. 17(2) (U.S.C.C.A.Ohio) Discrimination in price to different purchasers not unlawful, unless it lessens competition or tends to create a monopoly.-S. S. Kresge Co. v. Champion Spark Plug Co., 3 F. (2d) 415. Discrimination in prices held not in violation of Clayton Act.-Id. 260(4) (U.S.C.C.A.Ark.) Enforcement in federal court not defeated because lienholder did not commence suit in state court within statutory time.-American Tank Co. v. Continental & Commercial Trust & Savings Bank, See Chattel Mortgages. 3 F.(2d) 122. MORTGAGES. MUNICIPAL CORPORATIONS. 281(1) (U.S.C.C.A.Ark.) Evidence held to show that materials were furnished to specific leasehold estates, not on personal credit of See Counties; Street Railroads. lessee.-American Tank Co. v. Continental & Commercial Trust & Savings Bank, 3 F. (2d) 122. 281 (2) (U.S.C.C.A.Ark.) Evidence held to show continuing agreement under which lien filed within 90 days after last item covered all material.-American Tank Co. v. Continental & Commercial Trust & Savings Bank, 3 F. (2d) 122. MILITARY LAW. See Army and Navy. MINES AND MINERALS. 1. PUBLIC MINERAL LANDS. (A) Reservation and Disposal in General. 5 (U.S.C.C.A.Wyo.) Oil-leasing act held to permit leases only to holders of valid placer locations.-Richardson v. Western Oil, Coal & Investment Co., 3 F. (2d) 403. (B) Location and Acquisition of Claims. 27(4) (U.S.C.C.A.Wyo.) Contract between rival claimants contemplating lease from government held to entitle plaintiff to royalties only in lands to which it had a valid existing claim.-Richardson v. Western Oil, Coal & Investment Co., 3 F. (2d) 403. XI. USE AND REGULATION OF PUBLIC PLACES, PROPERTY, AND WORKS. (A) Streets and Other Public Ways. ~705(2) (App.D.C.) Mutual rights and duties of pedestrian and automobile driver stated.-Reaver v. Walch, 3 F. (2d) 204. 705 (10) (App.D.C.) Last clear chance doctrine held inapplicable to injuries to pedestrian by automobile.-Reaver v. Walch, 3 F. (2d) 204. 706(3) (App.D.C.) Pedestrian has burden of proving negligent operation of automobile.Reaver v. Walch, 3 F.(2d) 204. Res ipsa loquitur doctrine held inapplicable to pedestrian's injuries by automobile.-Id. 706(6) (App.D.C.) Evidence of negligence of driver of automobile, striking pedestrian, held insufficient for jury.-Reaver v. Walch, 3 F. (2d) 204. 864 (4) (U.S.C.C.A.Colo.) Bonds for municipal light plant held not "debt," within constitutional limitation.-Franklin Trust Co. V. City of Loveland, Colorado, 3 F. (2d) 114. NATIONAL BANKS. 36 (U.S.C.C.A.Wyo.) Public oil lands can be acquired only by compliance with placer See Banks and Banking, 256-2881⁄2. mining laws.-Richardson v. Western Oil, Coal & Investment Co., 3 F. (2d) 403. (C) Patents. 43 (U.S.C.C.A.Wyo.) Patent held to cut off rights of claimants to oil lands.-Richardson v. Western Oil, Coal & Investment Co., 3 F. (2d) 403. II. TITLE, CONVEYANCES, AND CON- (C) Leases, Licenses, and Contracts. 79(1) (U.S.C.C.A.Tex.) Lessor held owner of that part of oil reserved as royalty, both before and after production.-W. T. Waggoner Estate v. Wichita County, 3 F. (2d) 962. 80 (U.S.C.C.A.La.) Oil lessee entitled to remove machinery and supplies on forfeiture of lease.-In re Midland Oil Co., 3 F. (2d) 112. III. OPERATION OF MINES, QUARRIES, (A) Statutory and Official Regulations. 87 (U.S.C.C.A.W.Va.) Privilege tax for coal mining held to apply only to mining for sale or profit.-Norfolk & W. Ry. Co. v. Hall, 3 F.(2d) 254. NATURALIZATION. (C) Condition and Use of Land, Buildings, and Other Structures. 52 (U.S.C.C.A.Ala.) Owner of premises engaging independent contractor to work thereon may incur duty to warn contractor's employees of dangers.-U. S. Cast Iron Pipe & Foundry Co. v. Sullivan, 3 F. (2d) 794. II. PROXIMATE CAUSE OF INJURY. 59 (U.S.C.C.A.Ala.) When negligence proximate cause of injury.-St. Louis-San Francisco Ry. Co. v. Mills, 3 F. (2d) 882. cause 62(1) (U.S.C.C.A.Ala.) Intervening which should have been foreseen will not relieve from liability.-St. Louis-San Francisco Ry. Co. v. Mills, 3 F. (2d) 882. IV. ACTIONS. (B) Evidence. 122(5) (U.S.C.C.A.Porto Rico) Presumption from instinct of self-preservation applicable only in absence of evidence.-American R. Co. of Porto Rico v. Lopez, 3 F. (2d) 876. of 134(8) (U.S.C.C.A.Ala.) Death ployee of independent contractor while working in clay pit shown to be due to owner's negligence.-U. S. Cast Iron Pipe & Foundry Co. v. Sullivan, 3 F. (2d) 794. (C) Trial, Judgment, and Review. em PATENTS. II. PATENTABILITY. (A) Invention. 16 (U.S.C.C.A.Colo.) Mere improvement, to secure better result by original method, not "invention."-Lehman v. Ripley, 3 F. (2d) 518. 17 (U.S.C.C.A.N.Y.) Claims for hair-wav ing device designed to apply borax to one portion of hair and protect another portion held not to embody invention.-E. Fredericks, Inc. v. Eugene, 3 F. (2d) 543. 20 (U.S.C.C.A.N.Y.) Mechanical change or alteration not invention.-E. Fredericks, Inc. v. Eugene, 3 F. (2d) 543. Transfer of idea of device from art of medicated plasters to art of permanent hair waiv ing held not invention.-Id. 35 (U.S.C.C.A.III.) Doubt as to invalidity must exist before evidence of commercial success warrants finding in favor of validity.U. S. Sanitary Specialties Corporation v. West Disinfecting Co., 3F. (2d) 997. 36 (U.S.C.C.A.Ohio) When sales are evidence of invention stated.-Wellman-SeaverMorgan Co. v. William Cramp & Sons Ship & Engine Bldg. Co., 3 F. (2d) 531. Commercial success has evidential force.-Id Effective date of French patents is date of issue.-Id. Effective date of German patents is date of publication.-Id. 72 (U.S.C.C.A.Ohio) When superficial similarities must be minimized in destructive effect on advance of great commercial value stated. -Wellman-Seaver-Morgan Co. V. William Cramp & Sons Ship & Engine Bldg. Co., 3 F. (2d) 531. 73 (U.S.D.C.N.Y.) Anticipation by foreign publications.-A. Schrader's Son. Inc., v. Wein Sales Corporation, 3 F. (2d) 999, IV. APPLICATIONS AND PROCEEDINGS THEREON. 107 (App.D.C.) Nolan Act, relieving applicants for patents whose applications had become abandoned during war of burden of showing delay unavoidable, held within authority of Congress.-Seror v. Dick, 3 F. (2d) 92. Verified representation in application for patent that applicant was citizen of France held prima facie showing in interference proceeding that applicant was entitled to benefits of Nolan Act.-Id. 113(6) (App.D.C.) Jurisdiction of Court of Appeals in interference proceedings limited to determination of priority.-Taggart v. Shilstone, 3 F. (2d) 95. V. REQUISITES AND VALIDITY OF LETTERS PATENT. after 120 (U.S.C.C.A.Or.) Patent issued application filed for second patent is not in the prior art.-Cookingham v. Warren Bros. Co., 3 F. (2d) 899. 1053 For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 121 (U.S.C.C.A.Or.) Inventor may obtain separate patents, although standing in relation by way of genus and species.-Cookingham v. Warren Bros. Co., 3 F. (2d) 899. VII. REISSUES. 148 (U.S.C.C.A.III.) Surrender and reissue nullifies original patent, and forecloses right to recover damages for prior infringement.-Luminous Unit Co. v. Freeman-Sweet Co., 3 F. (2d) 577. IX. CONSTRUCTION AND OPERATION OF LETTERS PATENT. (B) Limitation of Claims. 165 (U.S.D.C.Mass.) Patent cannot be construed to cover wider field than indicated in specification.-Nash Engineering Co. v. W. D. Cashin & Co., 3 F. (2d) 686. 165 (U.S.D.C.Mont.) Patentee bound by his own construction of claims.-Greenawalt v. American Smelting & Refining Co., 3 F. (2d) 658. 167(1) (U.S.C.C.A.N.Y.) Specifications followed to determine meaning of terms.-E. Fredericks, Inc. v. Eugene, 3 F. (2d) 543. 172 (U.S.C.C.A.N.Y.) Patentee limited by claims which cannot have limitations read into them for purpose of avoiding anticipation.E. Fredericks, Inc: v. Eugene, 3 F. (2d) 543. 245 (U.S.D.C.Ohio) Interchangeability of parts standard test of infringement, lacking which presumption is against infringement.Auto Hone Co. v. Hall Cylinder Hone Co., 3 F. (2d) 479. (C) Suits in Equity. 292 (U.S.D.C.Cal.) Defendants' denial of assignment to plaintiff held not to authorize interrogation of plaintiff as to other assignments. Miller & Pardee v. Lawrence A. Sweet Mfg. Co., 3 F. (2d) 198. Answers not sealed and deposited with court, unless by consent of parties.-Id. ~297(4) (U.S.C.C.A.Pa.) Effect of decision of Court of Appeals of District of Columbia, determining priority of invention, stated.Rousso v. Barber, 3 F. (2d) 740. 297(8) (U.S.C.C.A.Pa.) Validity not established by consent decree.-Rousso v. Barber, 3 F. (2d) 740. Permitting plaintiff 313 (U.S.C.C.A.N.Y.) to withdraw suit without prejudice after issue joined held error.-E. Fredericks, Inc. v. Eugene, 3 F. (2d) 543. XIII. DECISIONS ON THE VALIDITY, CON- 328. 178 (U.S.C.C.A.Ohio) Claim limitation as equivalent something claimed and rejected. 927,298. 178 (U.S.D.C.Ohio) Not entitled to con UNITED STATES. ORIGINAL. Street pavement, held not anticipated and valid; claims 3, 5, 6, and 11. held infringed (C. C. A. Or.) 3 F. (2d) 899. Pressure gauge for pneumatic tires, held not anticipated, claims 1, 2, and 3, held not infringed (D. C. N. Y.) 3 F.(2d) 999. struction broad enough to cover all means of 985,709. Method of forming water proof faced accomplishing same result -Auto Hone Co. v. Hall Cylinder Hone Co., 3 F. (2d) 479. cement block, held not infringed (C. C. A. Or.) 3 F. (2d) 244. 1,030,890. Hydraulic valve, held not anticipated and valid; claims 1 and 4, also held infringed (C. C. A. Ohio) 3 F.(2d) 531. pipe, held valid, but not infringed (D. C. N. Y.) 3 F.(2d) 66. ←211(1) (U.S.D.C.Del.) License to corpora- 1,152,326. Apparatus for laying submarine tion held not to extend to subsidiary companies.-De Forest Radio Telephone & Telegraph Co. v. Radio Corporation of America, 3 F. (2d) 847. 214 (U.S.D.C.N.Y.) Nonpayment of royalty under license agreement showing intent not to practice invention entitles licensor to cancellation of license.-Hazeltine Research Corporation v. Freed-Eisemann Radio Corporation, 3 F. (2d) 172. 1,157,046. 1,164,815. 1,168,945. 1,180,799. Delay in payment of royalty pending negotiations for annual lump sum royalty held not repudiation of license agreement.-Id. Acceptance of overdue royalties waived for- 1,193,884. feiture of license agreement.-Id. Burden on plaintiff to prove that sublicense contract should be canceled.-Id. Clear and satisfactory proof required to show forfeiture or repudiation of contract.-Id. Court should consider whether, under facts, cancellation of license contract would be unjust and inequitable.-Id. 1,237,717. 1,304,534. 219(1) (U.S.D.C.N.Y.) Courts of law have 1,313,232. exclusive jurisdiction, where issue solely nonpayment of royalty under license contract.Hazeltine Research Corporation v. FreedEisemann Radio Corporation, 3 F. (2d) 172. XII. INFRINGEMENT. (A) What Constitutes Infringement. 226 (U.S.D.C.Cal.) Adoption of patentee's preferred methods not essential to "infringement."-Casey v. Bennett, 3 F. (2d) 640. Towel cabinet, held void (C. C. A. Device for tightening harrow teeth. Spark plug, claims 1, 3, and 6, held Portable grinder for truing up cylin- Hair-waving device, claims 5 and 1,346,337. Deodorizing material, claim 2, held not patentable invention or discovery (C. C. A. Ill.) 3 F. (2d) 997. 1,348,407. Improvement in apparatus for roasting ores, held void; also held not infringed, if conceded validity (D. C. Mont.) 3 F. (2d) 658. Motor for electric horn, claim held void (C. C. A. N. Y.) 3 F. (2d) 539. 236 (U.S.D.C.Cal.) Change of form, though 1,355,283. an improvement, will not avoid infringement.Casey v. Bennett, 3 F. (2d) 640. |