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Leavitt torpedoes" (with which we are not | not purport to grant an interest in the patent concerned) "wherever sold by the Bliss Company and the Whitehead torpedoes sold only to the United States government."
or any exclusive territorial rights, but only, with respect to the Whitehead torpedo, rights as to a single prospective purchaser, the government of the United States; and the Armstrong Company contracts at its own cost "to take all necessary proceedings for protecting and defending the license to use
 Authority to maintain a suit for infringement against the United States can be derived only from the Act of Congress of June 25, 1910 (36 Stat. 851, c. 423 [Comp. St. § 9465]), which provides that the "owner" of an infringed patent may recover reasonable compensation in the Court of Claims, and reserves to the United States "all defenses, general or special, which might be pleaded by a defendant in an action for infringement, as set forth in title LX of the Revised Statutes of the United States, or otherwise."
Giving to this statute, as we do, the liberal interpretation placed upon it in Crozier v. Krupp, 224 U. S. 290, 32 Sup. Ct. 488, 56 L. Ed. 771, and in Cramp v. International Curtis Marine Turbine Co., 246 U. S. 28, 38 Sup. GREAT NORTHERN RY. CO. v. CAHILL Ct. 271, 62 L. Ed. 560, the "owner" who may maintain an infringement suit against the government must have at least such an in- (Argued Jan. 13, 1920. Decided May 17, 1920.)
(253 U. S. 71)
terest in the patent as without the *statute would support such a suit against a defend- CONSTITUTIONAL LAW 297-RAILROADS
ant other than the United States.
225-COMPELLING RAILROAD COMPANY TO INSTALL CATTLE SCALES FOR BENEFIT OF DEALERS DENIES DUE PROCESS.
A state cannot compel a railroad company to install cattle scales at a station as a means for building up the business of trading in cattle at that point, however much the public might be benefited thereby.
 It has long been settled that a licensee may not maintain a suit for infringement (Gayler v. Wilder, 10 How. 477, 13 L. Ed. 504; Littlefield v. Perry, 21 Wall. 205, 22 L. Ed. 577; Paper Bag Cases, 105 U. S. 766, 26 L. Ed. 959; Pope Manufacturing Co. v. Gormully & Jeffery Manufacturing Co., 144 U. S. 248, 12 Sup. Ct. 641, 36 L. Ed. 423), and that to entitle an assignee or grantee to maintain such a suit under warrant of R. S. § 4919 (Comp. St. § 9464), such assignee or grantee must have an assignment, grant, or conveyance, either of the whole patent, of an undivided part of it, or of an exclusive right under it "within and throughout a specified part of the United States." Any assignment or transfer short of one of these is a mere license, giving the licensee no interest in the patent sufficient to sue at law in his own name for infringement or in equity without joining the owner of the patent. Waterman v. Mackenzie, 138 U. S. 252, 255, 11 Sup. Ct. 334, 34 L. Ed. 923; Pope Manufacturing Co. v. Gormully & Jeffery Manufacturing Co., 144 U. S. 224, 12 Sup. Ct. 632, 36 L. Ed. 414.
While the legal effect of the terms used, and not the name applied to the instrument containing them, will determine whether a transfer is an assignment or a license, nevertheless the language used is often, as in this case, of great significance in determining what that legal effect shall be.
Palhereby granted" against *infringers. pably this is a mere license, not sufficient to sustain a suit for infringement.
The right granted the appellant by the contract of 1905 is termed in it a "license"; the appellant contracts, as licensees usually do, to pay a royalty for each torpedo fitted with the devices to be patented; the contract does
Several minor questions, including some of practice, are argued in the brief for appellant, but the opinion of the Court of Claims deals with them thoroughly and satisfactorily and its judgment is
In Error to the Supreme Court of the State of South Dakota.
Proceeding instituted before the Board of Railroad Commissioners of South Dakota by J. C. Cahill and another, copartners as Redman & Cahill, against the Great Northern Railroad Company. A judgment reversing the order of the Board was reversed, and the order of the Board affirmed, by the Supreme Court of South Dakota (40 S. D. 55, 166 N. W. 306), and the Railroad Company brings error. Reversed and remanded, with directions.
Messrs. E. C. Lindley and M. L. Countryman, both of St. Paul, Minn., for plaintiff in error.
Messrs. Oliver E. Sweet, of Pierre, S. D., Clarence C. Caldwell, of Sioux Falls, S. D., and P. W. Dougherty, of Pierre, S. D., for defendants in error.
Mr. Chief Justice WHITE delivered the opinion of the Court.
In Great Northern Railway Co. v. Minnesota, 238 U. S. 340, 35 Sup. Ct. 753, 59 L. Ed. 1337, the question was whether an order of the Railroad and Warehouse Commission of Minnesota directing the railway to install at a named station a cattle-weighing scale was rightly sustained by the Supreme,
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Court of the state. It was found by that court (a) that out of 259 stations on the railway line in Minnesota where stockyards for handling cattle existed there were but 54 supplied with cattle-weighing scales, all of which the railway had voluntarily installed; (b) that although such scales had no direct part in transportation, they were convenient in stock dealings, and a station possessing one had an advantage over a place where none existed; in fact, that at the 54 stations where they had been voluntarily installed it had come to pass that they were used, not by shippers for the purposes of their transportation business, but by those who bought and
over the railway into Albee. It was indisputably established, however: (a) That not only the defendant railway but the other roads operating in the state of South Dakota had at some of their stations installed stock yard scales which presumably, in the absence of all proof to the contrary, had been voluntarily installed; (b) that all shipments of cattle from Albee during the preceding three years amounted only to 56 carloads, all of which were moved in interstate commerce, that is, to St. Paul, Minn., and that with regard to less than carload lots two cattle shipped in intrastate commerce constituted the sole movement; (c) that the universal rule on all railroads throughout the United States is to determine the weight of cattle
shipped in carload lots, for the purposes of ascertaining the freight charges, not by weight taken on scales at the point of shipment, but by a track scales at or adjacent to the point of delivery; (d) that the business of dealing in cattle at Albee would be facilitated and probably increased by the exist
ence there of a cattle scale where cattle
Coming to consider the contention of the railway that the order to put in the scales was repugnant to the Fourteenth Amendment as a taking of its property without due process, since as a carrier no obligation rested upon it to put in the scales, it was pointed out that the test was whether the order was so arbitrary and unreasonable as to exceed the power of government, or was justified dealt in could be weighed, and that the public by the public necessities which the carrier want in this respect had come to be increascould lawfully be compelled to meet. Hold-ingly felt since the removal by its owner of ing that as the duty of the railway was confined to furnishing appliances for its busi-a *private scale which the public had used ness of transportation and that cattle scales at a time previous to the demand made upon were not of such a character it followed that the railway to install the cattle scale here the railway could not be compelled to supply in question. them as a means for building up the business of trading in cattle however much the public might be benefited thereby, the defense of the railway was maintained and the order of the Commission was held to be wanting in due process and void. The result it was pointed out could not be avoided by the suggestion that the order was intended to correct a discrimination which existed in favor of certain stations which had scales, since in substance to say that would be to correct one discrimination by creating another.
Shortly before the argument in this court of the Minnesota case just referred to, the firm of Cahill & Redman *petitioned the Board of Railroad Commissioners of South Dakota for an order requiring the Great Northern Railway Company to install and maintain a cattle scale adjacent to its cattle yards at Albee station. It was alleged in the petition that no means otherwise of weighing cattle existed at Albee, that the public necessities of the cattle trade required the scale, and that the number of cattle shipped from the place justified the outlay by the railway.
The railway answered, denying any duty on its part to install the scale, and asserted that to compel it to put the scale in would deprive it of its property without due process, and would besides deny it the equal protection of the laws, both in violation of the Fourteenth Amendment.
At the hearing which followed there was no showing that any cattle had been shipped
The Commission in its findings, while pointing out that the complainants had testified that, besides the benefit to the public, there would be an advantage to shippers by the establishment of the scale, as it would enable the shippers to load their cattle, so as to avoid any loss resulting from a failure to bring the loaded car up to the minimum weight required for carload shipments, added the following:
"The testimony of the other witnesses, including those appearing for the railway company, is to the effect that the only use to which a stock scale is put is for the accommodation and consales of live stock to the buyers at stockyards venience of stock buyers and persons making in arriving at the weights as to the basis for the purchase and sale."
In the meanwhile the Minnesota case had been decided and therefore when the Commission came to apply the law to the facts by it found in this case it was called upon to determine how far the ruling in that case deprived it of power to grant the relief prayed in this. Discharging that duty, it held that the Minnesota case was inapplicable, because in South Dakota there was a common knowledge that railroad cattle scales when established were for the benefit of both the public and shippers, enabling all who took cattle into the railroad yards whether for shipment or otherwise to ascertain their weight. After referring to the relation in certain aspects which cattle scales, when installed, bore
to carload and less than carload shipments, f loads, and to ascertain the cost of shipping stock and that a law of the state provided for the in the car in excess of the minimum carload inspection of cattle scales when installed weight." by railways at their cattle 'yards, it was pointed out that, in accordance with many adjudged cases establishing that it was a part of the duty of a carrier to install stockyards in which to hold cattle intended for shipment and to receive inbound cattle when unloaded, it had by further legislation been
made the duty of carriers *to establish stockyards at their stations. Declaring that no difference in principle existed between the duty to furnish stockyards and the duty to install stock scales, the conclusion of the Commission was thus summed up:
"After a very careful examination of the evidence in this record, this commission is of the opinion and finds that live stock scales are a
necessary facility at stockyards for the weigh ing of live stock received for the purposes of shipment, not only for the convenience of the public at large, live stock buyers and individual shippers, but in the necessary weighing preliminary to properly loading and subsequent to the unloading of live stock at such stockyards, and that there is an actual public necessity for the installation of a stockyards scale at the stockyards of the defendant at its station at Albee, in Grant county, in this state."
Disposing of the first of these contentions the court said:
court relied solely upon *two grounds:
"The fallacy of the first proposition is so clear that discussion would be idle. The carrier owes no duty to the local buyer or seller of live stock until the stock is tendered at the stockyards for shipment."
"First, that local buyers and sellers of live stock have the right to demand the installation of stockyard scales for their own convenience in buying live stock; and, second, that it is the duty of the carrier to furnish the shipper such facilities as will enable him to avoid underloading cars where the rate is fixed upon minimum
In passing upon the second proposition the court quoted a passage from a text-book (10 Corpus Juris, 59), in which, after stating the general duty of a common carrier to furnish appliances necessary or appropriate for discharging its duties as a common carrier, it was declared:
Applying such doctrine the court, without citation of authority or reference to any legislative enactment or administrative practice supporting the view, and without referring to the South Dakota statutes relied upon by the Board, making it obligatory upon the carrier to put in cattle pens at all stations, without imposing any such duty to put in cattle scales, but, on the contrary, giving power only to inspect such scales when put
Conforming to these conclusions, the order awarded directed the installation of a stock scale of a certain capacity "in such a manner as to permit of the weighing of live stock loaded into and unloaded from cars at that station, as well as the weighing of stock received into the stockyards at Albee." An intermediary court to which the case was removed held that as the furnishing of in, held, wholly as a matter of first impresa stock scale was no part of the duty of asion, that the identity between the two (catcommon carrier, the railway could not be tle yards and cattle scales) was so complete compelled to furnish it without taking its property without due process of law, and that this result would be all the more flag rantly brought about by compelling the railway to furnish the scale upon the theory that if furnished it would afford a facility for the trading in cattle at the place where it was installed.
that the obligation which existed to erect cattle yards at every station also established the duty to install cattle scales at every station. The judgment of the intermediary court was therefore reversed and the order of the Board affirmed.
cannot be efficiently discharged without the aid "The duty of a carrier of live stock it is said of pens or yards in which the live stock offered for shipment can be received and handled with safety and without inconvenience to the public, before being loaded in the cars in which they are to be transported and such duty is strictly analogous to the duty of the carrier to construct and maintain a secure depot for inanimate freight."
Eliminating, as this conclusion did, all the
The complainant and the Board of Rail-questions pressed before the Board obviously road and Warehouse Commissioners, as ap- with the purpose of taking the case out of pellants, in invoking the reversal of the judg- the reach of the Minnesota decision, based ment of the intermediary court and the af- upon a supposed duty to put in scales befirmance of the order of the Board, as stated cause of the advantage which would result by the Supreme Court of the state, in that to dealers in cattle, it clearly follows that this case is decisively controlled by the ruling in the Minnesota case, and therefore leaves us only the duty to apply that ruling. Coming to do so, the judgment below is therefore reversed and the cause remanded with directions for further proceedings not inconsistent with this opinion.
It is so ordered.
(253 U. S. 101)
WESTERN UNION TELEGRAPH CO. v. of certiorari.
BROWN et al.
An "option" is a privilege given by the owner of property to another to buy the property at his election, and the owner does not sell the property, but gives to another the right to buy at his election.
[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Option.] 2. CORPORATIONS 116-CONTRACT HELD A
SALE OF STOCK, AND NOT AN OPTION TER-
Upon stipulation the case was tried in the (Argued Jan. 20 and 21, 1920. Decided May 17, District Court without a jury, and the court made findings from which it appears: On March 16, 1907, W. C. Pitt and W. T. Campbell entered into a contract with Hastings and Lange for the sale of 625,000 shares of the capital stock of the Kennedy Consolidated Gold Mining Company. In this contract it was stipulated that Pitt and Campbell agreed to sell and deliver to Hastings and Lange, who agreed to buy, take, and receive from them, 625,000 shares of the Kennedy Consolidated Gold Mining Company, upon the following terms and conditions: First. The total price to be paid for the shares of stock to be $75,000 in gold coin of the United States payable $7,500 on the execution of the agree ment; $11,250 on or before the 1st day of May, 1907; and the like sum on or before the 5th of July, 1907, the 5th of September, 1907, the 5th of November, 1907, the 5th of January, 1908, and the 5th of March, 1908. It was agreed that immediately upon payment of the first-named sum Pitt and Campbell would deposit in escrow in and with the Lyon County Bank, of Yerington, Nev., certificates of stock indorsed in blank representing in the aggregate 625,000 shares of the capital stock of the mining company, and would thereupon enter into an escrow agreement with Hastings and Lange and the bank, under which agreement the bank should hold the shares of stock to be delivered to Hastings and Lange upon the payment by them of the final sum provided for, and the bank was constituted the agent of Pitt and Campbell for the purpose of receiving the payments
A contract whereby the owners of stock agreed to sell, and the other parties agreed to buy, the stock for a price payable in installments, and which provided that the stock should be deposited in escrow until final payment, and
that in case of default the stock might be returned to the sellers, and all payments theretofore made should be forfeited to them, and the rights of each of the parties should cease and terminate, was a sale, and not an option terminable by the purchasers at will, as the provision for termination of the contract was for the benefit of the sellers, and hence the measure of damages for delay in delivery of a telegram stopping payment of a draft sent as a payment on the contract was not the amount of the
On Writ of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit.
160 C. C. A. 556. The case is here upon writ
Action by George M. Brown, executor of William Lange, Jr., deceased, and another, against the Western Union Telegraph Company. A judgment for plaintiff was affirmed by the Circuit Court of Appeals (248 Fed. 656, 160 C. C. A. 556), and defendants bring certiorari. Reversed and remanded.
See, also, 248 U. S. 552, 39 Sup. Ct. 8, 63 L.
*under the agreement, and it was further agreed that in event of default by Hastings and Lange the bank should be authorized, under the terms of such deposit in escrow, to deliver all the shares of stock so deposited with it to Pitt and Campbell, and all payments theretofore made by Hastings and Lange should be forfeited to Pitt and Campbell, and that thereupon all rights of each of the parties should forever cease and terminate. Hasungs and Lange paid to Pitt and Camp-, bell the initial sum of $7,500, and Pitt and
*Messrs. Beverly L. Hodghead, of San Francisco, Cal., and Rush Taggart and Francis Raymond Stark, both of New York City, for petitioner.
Mr. Samuel Poorman, Jr., of Los Angeles, Campbell deposited in escrow with the Lyon Cal., for respondents.
County Bank certificates of stock representing 625,000 shares of the stock of the mining company properly indorsed, and the bank received said certificates in escrow and held the same in accordance with the contract. After the execution of the contract Hastings and Lange arranged with the bank to treat drafts that they might send it in partial payment as gold coin, and to pay the amount of such drafts in gold coin to Pitt and Campbell under said contract; that for the purpose of making the payment mentioned in the contract which became due on or before May 1, 1907, Hastings and Lange on April 27, 1907,
*Mr. Justice DAY delivered the opinion of
This is an action by Brown, executor of Lange, and Hastings to recover damages from
the Western Union *Telegraph Company for failure to deliver a message sent by Hastings and Lange to the Lyon County Bank, Yerington, Nev. A judgment was recovered against the telegraph company in the District Court, which was affirmed in the Circuit Court of Appeals for the Ninth Circuit. 248 Fed. 656,
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sent by mail from Oakland, Cal., to the Lyon on April 30, 1907, it would receive the draft County Bank, at Yerington, Nev., a draft for and make payment of the amount thereof to the sum of $11,250 United States gold coin, Pitt and Campbell, in which event the amount payable to the order of the bank; that the would be wholly lost to them, as they did not draft was received by the bank at Yerington, intend to continue under their contract, havNev., on April 30, 1907, some time between ing learned that the stock was of little or no 8:30 a. m., the time the bank opened for busi- value. It was further found that thereupon ness, and 9 o'clock a. m. of that day; that the agent represented that the telegraph comon April 29, 1907, before the message herein-pany would insure the immediate delivery of after mentioned was delivered to the tele- the message to the bank at Yerington if plaingraph company, Hastings and Lange were in- tiffs would pay the sum of $1.45, which sum formed and believed that the stock of the was in excess of the company's regular mining company was of little or no value, charge. Plaintiff accepted the proposal, and and upon obtaining such information they paid the sum to the agent. In the presence determined to make no further payments on of the plaintiffs the agent thereupon wrote their contract with Pitt and Campbell, and upon the message, immediately below the date to abandon their rights in and to said stock, thereof, the words, "Deliver immediately," and to withdraw from the transaction with and accepted the message for immediate transmission to the town of Yerington for immediate delivery to the bank and agreed to immediately transmit and immediately deliver it to the bank for the plaintiffs, and assured the plaintiffs of such immediate transmission and immediate delivery thereof. The sum of $1.45 was in excess of the defendant's regular charge and usual toll; the usual charge for an unrepeated message being 98 cents, and for a repeated message the sum of $1.47. The message was written upon blank form of the telegraph company, which is set forth in the findings.
Pitt and Campbell. It is further found *that on the evening of April 29, 1907, plaintiffs called at the office of the defendant in Oakland, Cal., and requested the agent in charge to telegraph the Lyon County Bank at 1erington, Nev., as follows:
"Oakland, April 29, 1907. "Lyon County Bank, Yerington, Nevada. "Draft mailed you Saturday under mistake. Do not pay any sum to Pitt and Campbell. Return draft. Letter follows.
"Hastings and Lange."
Hastings and Lange stated to the agent of It is further found that neither Hastings the telegraph company that it was necessary nor Lange read the printed matter on the that the message be delivered to the bank be blank, nor was either of them cognizant of fore banking hours on the following morning, the terms and conditions written thereon; that is, before it opened for business on the the message was not repeated in the manner 30th day of April, 1907, and desired to know provided in the stipulations on the blank; of the agent in what manner they could be that the regular course of communication by absolutely assured that the message would telegraph between Oakland, Cal., and Yeringbe so delivered, stating to the agent that they ton, Nev., was by the lines of the Western had a contract for the purchase of certain Union Telegraph Company to Wabuska, Nev., shares of stock of a mining company, and which was the terminus of the telegraph that payment under the contract was required to be made by them on or before May that in order to transmit telegrams beyond company's lines for Yerington messages, and 1, 1907, to Pitt and Campbell through the bank, and that in default thereof the contract Wabuska it was necessary that they be transto purchase the stock would by its terms bemitted from that point over the telephone line forfeited, and the rights of the parties there of the electric company to Yerington; that to would cease and terminate; that for the each of the companies received all messages purpose of making the payment they had offered it by the other company for further mailed to the bank a certain bank draft in transmission, subject to the stipulations on the sum of $11,250; that in the ordinary telegraphic blanks, each company having and course of the mail between the city of Oak-charging their separate toll; that the offices land, Cal., and the town of Yerington, Nev., of the electric company and the telegraph
the same would be delivered to the bank on the following morning, that is to say, during the forenoon of April 30, 1907; that since mailing the draft they had learned facts touching the value of the stock which had determined them to make no further payments and to forfeit the contract and all money by them paid thereunder; that they were seek
company were both maintained in the South
Pacific Railway Company station at Wabuska, and that the telephone instrument of the electric company was within a few feet of the telegraphic instruments of the telegraph company; that at the time the Southern Pacific Railroad Company employed an agent at Wabuska to attend to its railway business, and that by an arrangement being *by the message to intercept payment by tween the railroad company and the telethe bank on account of the contract through graph company said agent was employed to said Pitt and Campbell; and that unless such attend to the telegraph business of the telemessage were transmitted, and delivered im- graph company at Wabuska; that by agreemediately to the bank before banking hours' ment between the railroad company and the