Reporter's Statement of the Case

(n) Demurrage rate to apply if any demurrage is incurred: 15¢ per net reg. ton.

(0) Full name and address of firm in whose name contract should be prepared: Oriental Navigation Company, Inc., 17 Battery Place, New York, N. Y.

(p) Whether steamers are designed for transportation of coal cargoes: Ordinary 'tween deck cargo vessels which have carried many coal cargoes successfully.

(9) Remarks: One port of discharge only on each cargo. NOTE 1.-In the event that vessels differing from the type of those furnished for transporting the first two cargoes under the alternate proposal are nominated for subsequent cargoes, such nominations will be subject to the approval of the Navy.

NOTE 2.-Payment of freight charges will be made promptly for each voyage as soon as information has been received from the naval representative that discharge has been completed.

14. Bids should be submitted in duplicate and mailed in the enclosed envelope.

15. The right is reserved to accept or reject any or all bids as may be deemed to the best interests of the Government.

Contract fifty-seven seven naught five awarded you transportation sixty thousand tons coal to San Diego and Puget Sound at three ninety-eight and Pearl Harbor at four ninetyeight accordance your alternate bid keep Commandant Fifth Naval District Hampton Roads advised movements vessel. DAVID POTTER, Paymaster General of Navy.

Reporter's Statement of the Case

EXHIBIT C

NOTICE OF AWARD

In reply refer to No. 57705-PF.

NAVY DEPARTMENT,

BUREAU OF SUPPLIES AND ACCOUNTS,

Washington, D. C.

Bid No. 2

1. The following classes in your proposal for naval supplies, opened in this bureau 3 May, 1923, are hereby awarded to you under contract No. 57705.

2. A formal contract for the material specified above will be forwarded promptly to be executed and returned. If other classes are awarded, "Notices of award" will be duly forwarded, and the additional classes shall be, if possible, incorporated in the same contract; otherwise a second contract will be executed.

3. Correspondence.-The successful bidder should eliminate useless correspondence by first looking through all conditions in his proposal to ascertain if the points in question are not already explained. Should further information be desired, all such correspondence should refer to the contract, schedule, and class numbers and be addressed to the Bureau of Supplies and Accounts, except when it is in regard to inspection, in which case the correspondence should be with the inspection officer, if known, otherwise with the bureau concerned (to ascertain the bureau concerned, see the top of the front page of each schedule).

4. Deliveries.-Before proceeding with the delivery, please refer to the conditions of delivery in your retained copy of the proposal.

If the proposal provides for varied deliveries as may be required in the future, during the existence of the contract, you are to make deliveries only upon the receipt of orders from a competent authority.

Opinion of the Court

But if the proposal provides for delivery of a specified quantity within a definite period, provided there is to be no inspection before shipment, you are authorized to proceed at once with the preparation and delivery of the material. * * *

Respectfully,

DAVID POTTER,

Paymaster General of the Navy.

ORIENTAL NAVIGATION Co., INC.,

17 Battery Place, New York City, N. Y.

The court decided that plaintiff was entitled to recover.

DOWNEY, Judge, delivered the opinion of the court:

The plaintiff contracted with the Navy Department to carry approximately 60,000 tons of coal from Hampton Roads, Va., to Navy Yard, Puget Sound, Wash., and/or Naval Fuel Depot, San Diego, Calif., and/or Naval Station, Pearl Harbor, T. H. The formal contract followed the issuance of a circular inviting bids, the submission of a bid by plaintiff and its acceptance. The contract was performed and the only question is as to canal tolls at ballast rates on vessels engaged in the performance of the contract on return trips for second or third cargoes. The claim was originally broader but has been reduced to the basis stated.

The contract contained the provision that "Panama Canal tolls will be assumed by the Navy." The circular inviting bids and the plaintiff's bid thereon contained the provision that "Panama Canal tolls will be assumed by the Navy on the West Coast tonnage."

The defendant argues that the real contract is to be found in the circular, the bid, and the acceptance, and that these make it clear that the tolls assumed by the Navy were "on the West Coast tonnage, i. e., upon the tonnage bound for the West Coast," apparently construing this language as intended to differentiate between a westbound trip with cargo and a return trip of the vessel eastbound.

The argument would be of force if there were not another, and, it seems to us, a better explanation as to why the language of the circular and of the contract were not the same.

This explanation is found in the fact that the circular invited bids first for the transportation of coal not only to

Opinion of the Court

Puget Sound and San Diego, on the West Coast, but also to Portsmouth, N. H., and Boston on the East Coast, and there was therefore propriety in providing for canal tolls to refer to them as tolls "on the West Coast tonnage as distinguished from the East Coast tonnage as to which there were of course no tolls to be assumed. The distinction was evidently as between East and West Coast destinations. The "alternative proposal" called for by the circular was the one submitted by the plaintiff and as it involved no East Coast transportation there was no occasion for distinguishing as between East and West Coast tonnage and the contract therefore simply provided that " Panama Canal tolls will be assumed by the Navy."

There is another feature of the matter which is of weight in determining the question presented. The contract provided that "The following vessels have been nominated to transport nine cargoes, approximately 60,000 tons, of coal" followed by the names of four vessels, with some descriptive features, so that it was plainly contemplated by the contract that four vessels would carry nine cargoes, necessitating the return of vessels, not simply for return to home port, but for a second and even third cargo.

The transportation seems to have been performed in eight trips instead of nine, but in accomplishing the service one vessel carried three cargoes, two vessels carried two each, while the fourth vessel carried but one. There were thus four return trips after second and third cargoes, two by the Orinoco, and one each by the Orleans and Orient.

The tolls upon these vessels for these four trips in ballast amount to $12,179.52, the amount to which the claim is now reduced, and this we think the plaintiff, under a fair interpretation of the contract, is entitled to recover.

GRAHAM, Judge; HAY, Judge; BOOTH, Judge; and CAMPBELL, Chief Justice, concur.

Reporter's Statement of the Case

WILLIAM A. ZEIDLER v. THE UNITED STATES

[No. A-51. Decided February 1, 1926]

On the Proofs

Patents; connecting two pieces of metal.-The Zeidler patent for con-necting two pieces of metal, parts of safety spirals, held invalid. for want of invention.

The Reporter's statement of the case:

Mr. O. Ellery Edwards for the plaintiff. Messrs. Archibald Cox, Joseph W. Cox and James H. Griffin were on the briefs.

Mr. Manvel Whittemore, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant..

The court made special findings of fact, as follows:

I. The plaintiff is a citizen of the United States and a resident of the city of New York, in the county of Bronx and State of New York.

II. At all times hereinafter mentioned the plaintiff was the owner of substantially the entire capital stock of the William A. Zeidler Company, a New York corporation, and was the president thereof, and alone directed and controlled the activities of said corporation.

III. The plaintiff filed his petition in this case under and pursuant to the act of Congress approved June 25, 1910, providing for additional protection for the owners of patents of the United States, 36 Stat. 851, as amended by the act of July 1, 1918, 40 Stat. 704, 705.

IV. In the art prior to plaintiff's alleged inventions, hereinafter described, there were in existence and had been. patented various methods of connecting two pieces of metal or like material, which were included in the following letters patent:

No. 254882, metallic reed for musical instruments, issued to Munroe, March 14, 1882;

No. 726809, car seal, to White, April 28, 1903;

No. 841755, spectacle temple, to Willson, January 22, 1907;