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(250 U. S. 473)

BARRETT v. VIRGINIAN RY. CO.

petitioner's action, re*spondents finally come before a court of equity saying in effect: Although represented by counsel of great eminence, we have not heretofore known the (Submitted March 21, 1919. Decided June 9,

1919.)

No. 275.

law; notwithstanding all solemnly declared to the contrary, we now maintain that petitioner was really acting for us, our trustee indeed; and we wish to share in the plan 1. COURTS 334 — PRACTICE - CONFORMITY which it has carried to success against our Аст. persistent opposition. Such a claim exhales a very bad odor; and I think the parties presenting it should be dismissed, burdened with an appropriate bill of costs, for two very simple reasons:

First. They are barred by laches. Rational men are presumed to know the law; knowledge of consequent rights and appropriate means of asserting them is necessarily implied from full acquaintance with the facts. Respondents' attempt to rely upon an alleged belated discovery of a well-known remedy after years of litigation conducted in full view of all the circumstances affronts both established principles and common experience. And this is emphasized by the names of distinguished counsel who have continuously represented the minority stockholders since 1888.

"Nothing can call a court of equity into activity but conscience, good faith, and reasonable diligence; and when a party with full knowledge of the facts, acquiesces in a transaction, and sleeps upon his rights, equity will not aid him." Hayward v. Eliot National Bank, 96 U. S. 611, 24 L. Ed. 855.

Due diligence in asserting a constructive trust is incompatible with persistent denial of such relationship after full knowledge of all the circumstances and a furious chase for 25 years in the opposite direction by the soi-uisant beneficiary.

Second. Certainly the petitioner never consciously undertook to act as respondents' trustee for years nobody seems to have thought any such relation existed. When the latter obtained full information of the real facts (1888), at most, their option was promptly to treat petitioner as their constructive trustee, or to reject that view. And I had supposed in such circumstances, under an elementary rule, failure affirmatively to ratify, approve, or adopt the alleged fiduciary's action within a reasonable time amounted to disapproval. A potential cestui que trust may not indefinitely speculate on the outcome. In the present case respondents not only failed promptly to approve the action whose benefits they now seek; they deliberately engaged in a long series of actions inconsistent with their present claim; and while they did so petitioner, supposing its title absolute and unquestioned, dealt with the stock accordingly and as it probably would not have done if the present claim had been asserted.

Conformity Act June 1, 1872, § 5 (Comp. St. § 1537), was intended to bring about uniformity in the law of procedure in the state had supplanted the common-law procedure by and federal courts after many of the states the Code practice.

2. TRIAL 139(1)—DIRECTION OF VERDICTPROPRIETY.

In the federal courts, whenever in the trial of a civil case it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such a verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court.

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The right to take a nonsuit is substantial, and when and how it may be asserted are questions relating directly to practice and mode of proceeding, within the intendment of the Conformity Act.

6. COURTS 352-CONFORMITY ACT-RIGHT TO DISMISSAL.

While the federal courts may in proper cases direct a verdict, it was improper, in view of Code Va. 1904, § 3387, etc., relating to nonsuits and demurrers to evidence, which are made applicable by the Conformity Act (Comp. St. § 1537), for a federal District Court for Virginia to deny an application for leave to take a nonsuit after the court had announced that it would direct a verdict for defendant, but before verdict had been actually directed; there having been no demurrer to the evidence or joinder therein.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Fourth Cir

cuit.

Action by S. D. Barrett against the Virginian Railway Company. A judgment for defendant on a directed verdict was affirmed by the Circuit Court of Appeals (244 Fed. 397, 157 C. C. A. 23), and plaintiff brings certio

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$475

(39 Sup.Ct.)

rari. Reversed and remanded, with direc-[ the law of procedure in the federal and state tions. courts of the same locality. It had its origin in the Code enactments of many of the states. *Mr. W. L. Welborn, of Roanoke, Va., for While in the federal tribunals the common-law petitioner. pleadings, forms, and practice were adhered Messrs. G. A. Wingfield and H. T. Hall, to, in the state courts of the same district both of Roanoke, Va., for respondent. the simpler forms of the local Code prevailed. This involved the necessity on the part of the

Mr. Justice McREYNOLDS delivered the bar of studying two distinct systems of remeopinion of the Court.

Claiming under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. §§ 8657-8665]), petitioner sued the Virginian Railway Company in the United States District Court, Western Dis. trict of Virginia, for damages on account of personal injuries suffered by him July 27,

1915.

At conclusion of the testimony the railway company moved for a directed verdict; after consideration the trial judge read to counsel an opinion giving reasons and announced his purpose to grant the motion.

"And thereupon the plaintiff, by counsel, moved the court to be permitted to take a voluntary nonsuit, which motion was opposed by counsel for defendant. And as the court is of opinion that the motion comes too late, it is overruled, and to this action of the court the plaintiff, by counsel, excepted. And thereupon the court directed the jury to find a verdict for the defendant, and to this action of the court the plaintiff, by counsel, excepted. And thereupon the jury rendered and returned the following verdict: 'We, the jury, by direction of the court, find for the defendant.'"

Judgment thereon was affirmed by the Circuit Court of Appeals. 244 Fed. 397, 157 C. C. A. 23. Petitioner there urged that the trial court erred (1) in directing a verdict for the defendant, and (2) in denying the plaintiff's request to take a voluntary nonsuit. Both claims were denied and are renewed here. *We think refusal to permit the requested nonsuit was error and for that reason the judgment below must be reversed. This makes it unnecessary to consider the other point.

[1] The Act of June 1, 1872-the Conformity Act (R. S. § 914, c. 255, § 5, 17 Stat. 197 [Comp. St. § 1537])-provides:

"The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such Circuit or District Courts are held, any rule of court to the contrary notwithstanding."

Construing the statute in Nudd et al. v. Burrows, Assignee (1875) 91 U. S. 426, 441, 442 (23 L. Ed. 286), this court said:

"The purpose of the provision is apparent upon its face. No analysis is necessary to reach it. It was to bring about uniformity in

dial law, and of practicing according to the wholly dissimilar requirements of both. The inconvenience of such a state of things is ob vious. The evil was a serious one. It was the aim of the provision in question to remove it This was done by bringing about the conformity in the courts of the United States which it prescribes. The remedy was complete. The personal administration by the judge of his duties while sitting upon the bench was not complained of. * The personal conduct and administration of the judge in the discharge of his separate functions is, in our judgment, *neither practice, pleading, nor a form nor mode of proceeding within the meaning of those terms as found in the context."

*

See, also, Indianapolis & St. Louis R. R. Co. v. Horst, 93 U. S. 291, 300, 23 L. Ed. 898.

[2, 3] "It is now a settled rule in the courts of the United States that whenever, in the trial of a civil case, it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such a verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court. Such is the constant practice, and it is a convenient one. It saves time and expense. It gives scientific certainty to the law in its application to the facts and promotes the ends of justice." Bowditch v. Boston, 101 U. S. 16, 18, 25 L. Ed. 980; Pleasants v. Fant, 22 Wall. 116, 122, 22 L. Ed. 780; Oscanyan v. Arms Co., 103 U. S. 261, 265, 26 L. Ed. 539; Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478, 482, 3 Sup. Ct. 322, 27 L. Ed. 1003; District of Columbia v. Moulton, 182 U. S. 576, 582, 21 Sup. Ct. 840, 45 L. Ed. 1237; Hepner v. United States, 213 U. S. 103, 113, 29 Sup. Ct. 474, 53 L. Ed. 720, 27 L. R. A. (N. S.) 739, 16 Ann. Cas. 960. And this rule is not subject to modification by state statutes or Constitutions. Indianapolis & St. Louis R. R. Co. v. Horst, supra; St. Louis, Iron Mt. & Southern Ry. v. Vickers, 122 U. S. 360, 363, 7 Sup. Ct. 1216, 30 L. Ed. 1161; Lincoln v. Power, 151 U. S. 436, 442, 14 Sup. Ct. 387, 38 L. Ed. 224.

[4, 5] At the common law, as generally understood and applied, a nonsuit could be taken freely at any time before verdict if not indeed before judgment. Confiscation Cases, 7 Wall. 454, 457, 19 L. Ed. 196; Derick v. Taylor, 171 Mass. 444, 445, 50 N. E. 1038; Bac. Abr. Nonsuit (D). And see Pleasants v. Fant, supra, 22 Wall. 122, 22 L. Ed. 780. The right is substantial. When and how it may

be asserted we think are questions relating direct verdict for defendant, is not well directly to practice and mode of proceeding founded. within intendment of the Conformity Act. [6] Section 3387 Virginia Code (1904) provides:

“A party shall not be allowed to suffer a nonsuit, unless he do so before the jury retire from the bar."

Prior to this provision, a plaintiff there had the absolute right to take a voluntary nonsuit at any time before verdict. Harrison v. Clemens, 112 Va. 371, 373, 71 S. E. 538. Chapter 27, Va. Acts 1912, directs:

"That in no action tried before a jury shall the trial judge give to the jury a peremptory instruction directing what verdict the jury shall render."

And chapter 42, Idem, provides:

Under the Virginia statute, in the absence of a demurrer to the evidence and joinder therein, the plaintiff may take a nonsuit at any time before submission of the case to the jury and their retirement. The conformity statute gives the same right in federal courts. This conclusion accords with opinions by the Circuit Courts of Appeals for the Sixth, Seventh, and Eighth Circuits. Knight v. Illinois Central R. R. Co., 180 Fed. 368, 103 C. C. A. 514; Meyer v. National Biscuit Co., 168 Fed. 906, 91 C. C. A. 335; Chicago, M. & St. P. Ry. Co. v. Metalstaff et al., 101 Fed. 769, 41 C. C. A. 669.

The judgment below must be reversed, and the cause remanded to the District Court, with direction to set aside the judgment in favor of respondent and sustain motion to enter a nonsuit. Knight v. Illinois Central R. R. Co., supra, 180 Fed. 374, 103 C. C. A. 514; Harrison v. Clemens, supra, 112 Va. 374, 375, 71 S. E. 538. Reversed.

"In all suits or motions hereafter, when the evidence is concluded before the court and jury, the party tendering the demurrer to evidence shall state in writing specifically the grounds of demurrer relied on, and the demurree shall not be forced to join in the said demurrer until the specific grounds upon which the demurrant relies are stated in writing; nor shall any grounds of demurrer not thus specifically stated be considered, except that the court may, in T. H. SYMINGTON CO. v. NATIONAL MALits discretion, allow the demurrant to withdraw the demurrer; may allow the joinder in demurrer to be withdrawn by the demurree, and new evidence admitted, or a nonsuit to be taken until the jury retire from the bar."

(250 U. S. 383)

LEABLE CASTINGS CO. et al.

MINER v. T. H. SYMINGTON CO. (Argued April 19 and 22, 1918. Decided June 9, 1919.) Nos. 31, 24.

IMPROVEMENT - CON

1. PATENTS 174
STRUCTION-SPECIFICATION.

Citing Parks v. Ross, 11 How. 362, 373, 13 L. Ed. 730, and Richardson v. City of Boston, 19 How. 263, 15 L. Ed. 639 (see also Schuchardt v. Allen, 1 Wall. 359, 370, 17 L. Ed. 642), petitioner maintains that in the federal courts the practice of directing verdicts has superseded the demurrer to evidence and should be controlled by the same general principles. Therefore, it is said, the statutory rule which gives the judge discretion to allow or refuse a nonsuit after joinder in such a demurrer applies when 2. PATENTS

there is a motion for directed verdict.

Where a patent for an improvement in draft rigging for railroad cars called for a pocket or housing to hold the other parts in dicating that the pocket was to be integral place, and there was nothing in the claims inwhile the specification stated that it might be cast in a single piece, the claims are not limited to an integral part.

DENCE.

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Obviously the laws of Virginia recognize a marked distinction between demurrer to evi-vention as against existing letters patent is, in Oral testimony tending to show prior indence and direction of a verdict-the former the absence of models, drawings, or some kinis permitted; the latter is expressly prohibit-dred evidence, open to grave suspicion, particed. And the different nature and effect of the ularly if the testimony be taken after the lapse two things has been pointed out in Oscanyan of years from the time of the alleged invention. v. Arms Co., supra, 103 U. S. 264, 26 L. Ed. 3. PATENTS 16-INVENTION. 539; Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S. 39, 11 Sup. Ct. 478, 35 L. Ed. 55; and Slocum v. New York Life Insurance Co., 228 U. S. 364, 388, 33 Sup. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029. The conclusion announced in Parks v. Southern Ry. Co., 143 *Fed. 276, 277, 74 C. C. A. 414, that, because federal courts may in proper cases direct verdicts, therefore, in the exercise of sound discretion, they may deny an application for leave to take a nonsuit and

A conception of the mind is not an invention until represented in some physical form, and unsuccessful experiments or projects abandoned by the inventor are equally destitute of that character.

4. PATENTS 62-INFRINGEMENT-PREVIOUS

INVENTION-Evidence.

In an infringement suit, oral evidence held insufficient to show prior invention as against existing letters patent, at most disclosing only a mental conception in the process of develop

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*385

(39 Sup.Ct.) ment which was occasionally outlined on scraps of paper, and then committed to the wastebasket, and was roughly worked into a wooden model with a penknife.

On Writ of Certiorari to the United States Circuit Court of Appeals for the First Circuit. On Writ of Certiorari to the United States Circuit Court of Appeals for the Seventh

Circuit.

Suit by the National Malleable Castings Company and another against the T. H. Symington Company. A decree for defendant was reversed on complainants' appeal (230 Fed. S21, 145 C. C. A. 131, 234 Fed. 343, 148 C. C. A. 245), and defendant brings certiorari. Suit by the T. H. Symington Company against William H. Miner, in which a decree for complainant was affirmed (229 Fed. 730, 144 C. C. A. 140), and defendant brings certiorari. Decree in the first case affirmed, and in the second reversed.

*Messrs. George I. Haight and Charles C.
Linthicum, both of Chicago, Ill., for Miner.
Mr. Charles Neave, of Boston, Mass., for
National Castings Co.

Messrs. Melville Church, Gilbert P. Ritter, and Ernest F. Mechlin, all of Washington, D. C., for T. H. Symington Co.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

These cases are so related that they may be disposed of together. Each is a suit to enjoin the infringement of a patent. One was begun

in the district of Maine and is based on let

[1] One of the elements called for by the claims in the Byers patent which were sustained is a "pocket" or housing, which is to hold other parts in place. The corresponding element of the Emerick patent is described Whether the Byers pocket was to be integral as "counterpart castings" and is in two parts. or might be in two or more parts is a matter about which the two courts differed. In the

Maine suit it was held that the claims were
not limited to an integral pocket, but in the
Illinois suit the ruling was the other way.
The former view, as it seems to us, is the
right one. There is nothing in Byers' claims
which were sustained indicating that the
pocket is to be integral, while there is a dis-
tinct call for such a pocket in claim 9. The
difference in terms points persuasively to a
difference in purpose, and the specification
does even more, for it says "the pocket may
be cast in a single piece." This is the com-
mon form of designating an admissible al-
Of course,
ternative in such instruments.
the other alternative is casting it in a plural-
ity of pieces. When this is done and the
pieces are assembled, they form a pocket and
serve in the same way as if there were but

one.

The courts differed also as to who was the prior inventor. Presumptively it was Byers, for his application and patent were both prior to Emerick's application. Recognizing

this, the parties claiming under Emerick sought by proof to carry his invention back

to an earlier date, and to that end produced the testimony of three *witnesses, Emerick ters patent granted May 7, 1901, to Jacob J. being one. All three testified in both suits, their testimony being substantially the same Byers on an application filed April 21, 1900. in both. In the Maine suit the court proThe other was begun in the Northern Dis-nounced this testimony too equivocal and untrict of Illinois and is based on letters patent certain to establish priority as against Byers' granted February 18, 1902, to William H. Emerick on an application filed May 24, 1901. suit the court, although regarding the testi application and patent, but in the Illinois Both patents cover an improvement in draft rigging for railroad cars. In each suit it be-mony as hardly satisfactory, gave effect to it. On reading it we are persuaded that it came necessary to compare the patents, dewas clearly insufficient. termine whether the invention of one was anticipated by the other, and ascertain which of the patentees was the original and first inventor. Ultimately the suits reached the Circuit Courts of Appeal for the circuits in which they were brought. In the Maine suit

[2-4] This court has pointed out that oral testimony tending to show prior invention as against existing letters patent is, in the absence of models, drawings, or kindred evidence, open to grave suspicion, particularly the court held that Byers was the prior in- if the testimony be taken after the lapse of ventor and that *claims 3, 5, and 6 of the pat-years from the time of the alleged invention. Deering v. Winona Harvester works, 155 U. ent to him were valid and infringed. National Malleable Castings Co. v. T. H. Symington, 230 Fed. 821, 145 C. C. A. 131; 234 Fed. 343, 148 C. C. A. 245. In the Illinois suit the court held that Emerick was the prior inventor and that claims 1, 2, 3, and 4 of the patent to him were valid and infringed. 229 Fed. 730, 144 C. C. A. 140. These conflicting decisions led to the allowance of the present writs of certiorari.

While the discussion at the bar and in the briefs has taken a wide range, only two points need be considered.

S. 286, 300, 15 Sup. Ct. 118, 39 L. Ed. 153.
And it has said:

"A conception of the mind is not an invention until represented in some physical form, abandoned by the inventor. are equally destiand unsuccessful experiments or projects, tute of that character." Clark Thread Co. v. Willimantic Co., 140 U. S. 481, 489, 11 Sup. Ct. 846, 849 (35 L. Ed. 521).

Here the evidence was oral. No model, drawing, or kindred exhibit was produced. Fifteen years had elapsed since the date as

98%

Mr. Assistant Attorney General Hanson, for the United States.

*Mr. Chief Justice WHITE delivered the

of which invention was being claimed. The Mr. Albert M. Yuzzolino, of New York testimony was not direct and strong, but City, for petitioners. weak and uncertain and in some respects contradictory. At most it only disclosed a mental conception in process of development which occasionally was outlined on scraps of paper and then committed to the waste bas-opinion of the Court. ket and was roughly worked into a wooden model four or five inches long with a pen knife. The first real model or drawing was made about the time of the actual application for a patent and there was no attempt at reduction to practice until after the patent was issued. Such proof under the rule just

stated does not suffice.

Decree in No. 31 affirmed.
Decree in No. 24 reversed.

(250 U. S. 355)

F. VITELLI & SON v. UNITED STATES.

(Argued April 24, 1919. Decided June 9,

1919.)

Nos. 67, 68.

83

1. CUSTOMS DUTIES 81-EVIDENCE
(1)-RELIQUIDATION AFTER YEAR-FRAUD-
BURDEN OF PROOF-PRESUMPTION FROM OF-
FICIAL ACTION.

Act June 22, 1874, § 21 (Comp. St. § 5714), providing that when customs duties have been liquidated and paid, and the imported goods delivered to the importer, such settlement shall after a year, in the absence of fragt. be final and conclusive, being remedial to circumscribe the prior unlimited power to reliquidate, the presumption of correctness of official action of the collector, in reliquidating the duties after expiration of the year, cannot obtain, with the result of placing on the importer the burden of showing there was no fraud, and this though the importer pays the reliquidated duties under protest, and appeals; such proceeding being appropriate to resist the result of the reliqui

The petitioners, Vitelli & Son during the years 1905-1907, made entry at the port of New York of 19 different lots of dutiable merchandise, that is, chestnuts and garlic, and these entries were liquidated and the duties paid. About five years after the last of these payments, the collector of the port of New York, declaring that evidence had been produced to his satisfaction showing that 14 of the 19 entries referred to were fraudulent, because of the incorrect weights upon which they were based, canceled the previous liquidations relating to them and directed a reliquidation to be made on the basis of the corrected weights. Vitelli & Son, denying the existence of fraud and disputing the power to make the reliquidation, protested against the claim of duty which resulted from the reliquidation, and, paying the same under protest, prosecuted an appeal to the Board of General Appraisers.

Before the Board the collector made no affirmative proof of the commission of fraud, and submitted the validity of the reliquidation upon the basis of the official papers pertaining to it-that is, the certificates of weight, etc.-upon which he had acted. The petitioners, not taking upon themselves the burden of showing that there was an absence of fraud, stood upon their protest as to the want of power to make the reliquidation. The Board sustained the protest. It held that as under the conditions disclosed the existence of power in the collector to make the reliquidation after one year depended upon the fact of fraud, that the burden was upon the collector to establish that which was necessary to sustain his authority to 2. CUSTOMS DUTIES 85-RELIQUIDATION- act, and having failed to do so the reliquidaAPPEAL-REVERSAL AND REMAND.

dation.

The holding of the Board of General Appraisers, affirmed by the Court of Customs Appeals, that a reliquidation of customs duties was valid, having been under a mistaken con

struction of statute as to presumption and

burden of proof as to fraud, should not be sustained, though there was sufficient evidence, but the question of fraud should be passed on by such tribunals freed from such mistaken construction.

tion was erroneous and the protest was well founded. Appeal was prosecuted to the Court of Customs Appeals, where the action of the

Board was reversed. United States v. Vitelli

& Son, 5 Ct. Cust. App. *151. The court held that although it was true that, as applied to the case before it, the existence of fraud was essential to confer upon the collector the power which he had exerted, as he had exercised the authority, the presumption of the correctness of official action was suffiOn Writ of Certiorari to the United States cient, without proof of fraud to sustain the Court of Customs Appeals.

Reliquidations of duties on imports by F. Vitelli & Son were sustained by the Board of General Appraisers and by the Court of Customs Appeals (7 Ct. Cust. App. 243), and the importers appeal. Reversed and remanded.

reliquidation. In reaching this conclusion it was expressly decided that, in view of the presumption of power indulged in, the effect of section 21 of the Act of June 22, 1874, c. 391, 18 Stat. 190 (Comp. St. § 5714), was to cast upon the importer the burden of establishing a negative, that is, that there had

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+356

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