The parent patent contains the following disclaimer: "The location of the semi-elliptic springs outside of the wheel-gage on each side of the truck, together with the location of the links for supporting the semi-elliptics closely adjacent to the axle-boxes, and the swinging of said springs from the truck-frame from such points gives a better support for the car-body than does the usual link-hung bolster supported from the truck-transoms within the wheel-gage. These general features of construction, however, are embraced in an application filed by Samuel M. Curwen and myself on the 3d day of November, 1896, Serial No. 610,902, and therefore I do not claim the same herein."

The answer denies the validity of the patents, setting up a large number of earlier ones, and also denies infringement. There was a trial in the Supreme Court of the District, upon which a decree was rendered dismissing the bill. The decree was affirmed by the Court of Appeals, 30 App. D. C. 255, and an appeal was taken to this court.

It is difficult to put one's finger with certainty upon what the plaintiff claims. It certainly is not the total combination of a successful truck. Mr. Brill, the inventor and the plaintiff's assignor, is pictured as playing a large part in the development of street railway trucks, but whether that be true or not, his share in the invention of the truck that we have described, so far as the present patent at least is concerned, must be at best but very small. It is insisted, to be sure, that the case is not affected by inventions for use with steam railroad cars because of the different requirements upon street roads. Cars for the latter use must be low hung to make getting in and out easy, must accommodate the motors hung upon the axles, must be adapted to short curves and so forth. But these differences are not of universal effect; indeed this patent is not confined to street cars. The suspension of the car body upon a semi-elliptic spring hung from the side frame of the truck by a jointed hanger, with most of the characteristics of the present patent, as disclosed in a patent to Thyng in 1845, was obvi

ously as available for street as for steam railways, and the use of these features by Brill was not a patentable invention. The use, on the modern long car, of two four-wheeled pivotal trucks with a short wheel base and wheels of equal diameter, which support the car body by a pivot on a bolster between the axles, resting on semi-elliptic springs, was not peculiar to Brill. It was described in a patent to Taylor, October 31, 1895, No. 507,855. Brill's specification disclaims at the outset the general features of the truck it describes. Indeed it hardly is denied that every clement in the combination was well known in the construction of railway cars.

.

We are not dealing with a new type of trucks, but with certain features only. At the argument it was admitted that the plaintiff's case must stand or fall on claim 13 of No. 627,898. In that claim the only possible element of novelty is the mode in which the semi-elliptic springs are suspended from the side frames. In practice the links are elastic and the pins on which the whole combination hangs have a universal ball and socket movement, although the claim only says 'movably and resiliently suspended substantially as described.' Neither 'movably' nor 'resiliently' indicates the ball and socket arrangement, but it is described in the specification and we give the plaintiff the benefit of the doubt. We agree, however, with the Circuit Court of Appeals that the substitution of a ball and socket movement for the movement in one direction of the Thyng link, coupled as it was with a slight longitudinal play, required a minimum of invention. A link having universal movement was patented by Beach in 1876. The plaintiff's witness, Akarman, says that there always has been provision made for lateral and longitudinal motion in every well-constructed truck. Spring links to support semielliptic springs were old; it is unnecessary to recite the patents in which they appear. The mention of 'the usual link hung bolster' in the disclaimer indicates the indisputable fact. We also agree with the other court that the disclaimer in favor of Brill and Curwen is a solemn admission of the priority of the

devices claimed by them. It certainly covers the collocation of the spring links and semi-elliptic springs. One of the claims of Brill and Curwen is, "12. The combination in a car truck of the side frames, the equalizing-bars movably and resiliently suspended from the side frames, and a bolster supported on said equalizing-bars, substantially as described." It is said that the Brill patent did not follow the Thyng invention for more than fifty years. The answer is that for most of that time it was not wanted. Very soon after the change in street railway travel required it it came.

If the plaintiff's claim could be sustained, which we cannot admit, it would be confined to the specific form of link described. There would be little room for the doctrine of equivalents. The defendant's device does not use a ball and socket but uses a rigid link supported by a relatively unyielding spiral spring in the frame of the truck, and does not infringe the very narrow claim which is the most that in any view could be allowed.

Decree affirmed.

MR. JUSTICE MCKENNA dissents.

MANKIN v. UNITED STATES FOR THE USE OF LUDOWICI-CELADON COMPANY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 167. Submitted January 7, 1910.-Decided January 17, 1910.

Under the labor and material law of February 24, 1905, c. 778, 33 Stat. 811, amending the act of August 13, 1894, c. 280, 28 Stat. 278, indemnity is provided for persons furnishing labor and materials to a subcontractor as well as to the contractor in chief for the construction of a public building.

The indemnity extends to the full amount furnished notwithstanding the contractor may have already paid the subcontractor in full or

Argument for Plaintiff in Error.

215 U.S.

in part. Provisions in state statutes, limiting recovery against contractor to amount remaining unpaid to subcontractor, do not affect suits under the Federal statute which contains no such provisions. The decision in Hill v. American Surety Co., 200 U. S. 197, in regard to claims against subcontractors under the act of 1894, followed as to such claims under the statute as amended in 1905.

158 Fed. Rep. 1021, affirmed.

THE facts, which involve the construction of the Federal labor and material act of February 24, 1905, c. 778, 33 Stat. 811, are stated in the opinion.

Mr. C. V. Meredith, Mr. J. Jordan Leake, Mr. T. C. Catchings and Mr. O. W. Catchings for plaintiff in error:

The statute must be strictly construed as a mechanic's lien statute and as such does not, as amended in 1905, inure to the benefit of subcontractors. The act as amended differs in this respect from the statute as construed in Hill v. Am. Surety Co., 200 U. S. 197. No matter how meritorious his service the statute does not protect one who is not clearly within it. Phillips on Mech. Liens, 2d ed., §§ 36, 47 et seq.; Wood v. Donaldson, 17 Wend. 550; Donaldson v. Wood, 22 Wend. 395; Boisot, Mech. Liens, §§ 246 et seq.; McGuire v. Ohio R. R. Co., 33 W. Va. 63.

Under the statute as amended the contractor and surety company are not and should not be required to pay twice, and the material men are only entitled to recover the amount remaining unpaid to the subcontractor which in this case is for less than the amounts claimed by the material men and awarded by the court below.

Where the owner is compelled to pay twice the statute is highly penal and must be construed strictly against one seeking that result. West Lumber Co. v. Knapp, 122 California, 81; Hampton v. Christenson, 84 Pac. Rep. 200; Alderman v. Hartford Co., 66 Connecticut, 47; Nixon v. Cydon Lodge, 56 Kansas, 298; Dunn v. Rankin, 27 Ohio, 132; Morrison v. Whaley, 16 R. I. 715.

The New Jersey statute has been construed as not requiring payment beyond the amount due the subcontractor. Garrison v. Borio, 47 Atl. Rep. 1060; and see also as to New York rule, Brainard v. Kings County, 84 Hun, 290, aff'd 155 N. Y. 538; Phillips, Mech. Liens, 2d ed., § 61, citing Renton v. Conley, 49 California, 188, and McKnight v. Washington, 8 W. Va. 666; Stout v. Golden, 9 W. Va. 231; McIntire v. Barnes, 4 Colorado, 288; Boisot, Mech. Liens, § 255; Wadsworth v. Hodge, 88 Alabama, 500.

If the rule were otherwise a contractor might have to pay those supplying materials to the subcontractor more than he agreed to pay the subcontractor himself. McMurray v. Brown, 91 U. S. 256, 266; Hunler v. Truckee Lodge, 14 Nebraska, 24, 41; Fullerton Lumber Co. v. Osborn, 72 Iowa, 472; Wolf v. Penna. R. R. Co., 29 Pa. Sup. Ct. 439; Knelly v. Howarth, 208 Pa. St. 487; Mullikeir v. Harrison, 44 S. E. Rep. 426; Gridley v. Sumner, 43 Connecticut, 14; Lumber Co. v. Smith, 35 So. Rep. 693; Merriott v. Crane Co., 126 Ill. App. 337, 343; Am. Surety Co. v. United States, 127 Alabama, 349; General Supply Co. v. Hunn, 126 Georgia, 615; Vandenberg v. Walton, 92 Pac. Rep. 149; see Digest of laws of various States in Alexander's Lien Laws; Southeastern States, Alabama, p. 35; Florida, p. 114; Mississippi, p. 435; North Carolina, p. 474; South Carolina, p. 525; Virginia, p. 694.

Mr. C. H. Alexander, Mr. W. C. Bowman, Mr. Richard F. Reed and Mr. Gerard Brandon for defendants in error.

MR. JUSTICE DAY delivered the opinion of the court.

This is a writ of error to the Circuit Court of Appeals for the Fifth Circuit, wherein a judgment of the Circuit Court of the United States for the Southern District of Mississippi in favor of the defendants in error was affirmed. The facts are: The Mankin Construction Company on February 27, 1905, entered into a contract with the Secretary of the Treasury for the con