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that, with the additional supply of steam, an additional supply of oil shall also be furnished at this time, the latter passing then not through the constantly open choke plug alone, but also through the passage or passages opened up by the valve. Thus not only is the back pressure from the cylinder neutralized or equalized by the additional volume of steam admitted at the lubricator end of the oil or tallow pipe, but the oil feed is increased also; in other words, the feed is increased when the throttle is open, and is decreased when the throttle is closed, because in the latter case the oil can pass through the small constantly open choke passage or plug only. These features, broadly considered, are not new with me, as a lubricating apparatus embodying said characteristics is shown and described in United States patent No. 267,430, granted to R. J. Hoffman on January 14, 1882.”
The patentee then proceeds to describe what he employs in connection with a lubricator having suitable boiler, cylinder, and equalizing pipe connections, and then describes the structure which embodies the features mentioned and shown in the drawing, and then says:
"The operation of my improved device is as follows: When the engine is standing still or running on a down grade with no steam in the cylinders, the steam passing continuously directly from the boiler through the equalizing pipes, M, will press against the smaller bead of piston, d, compressing the spring, h, and moving back the piston until the holes, f, will be covered by the partition, n, of casing, a. In this case only the very small hole, e, will be operative for the passage of steam and oil into the cylinder, and the lubricator will operate as an ordinary lubricator, with fixed outlet nozzle or choke plug. When steam, however, is admitted into the cylinders, it will press against the larger head of piston, d, and, aided by the spring, overcome the pressure of steam against the small end of the piston, which latter will then assume the position shown in the drawing, with its holes, f, opening into the recess, c. In this case, in addition to the small hole, e, the holes, f, will be open to the passage of steam and oil, and the increased volume of steam passing through these additional openings will effectually overcome the retarding effect of the back pressure from the cylinder. I believe myself to be the first to have devised a lubricating apparatus provided with suitable cyl. inder and equalizing pipe connections wherein the duct connecting the lubricator and the steam chest at any point in the length of the duct is provided with a minimum supply choked passage, a relatively larger by-passage, separate and distinct from the minimum supply choked passage, and a valve for controlling said by-passage automatically operated by variations of pressure within the duct. What I claim, and desire to secure by letters patent, is as follows:
“(1) In a lubricating apparatus provided with suitable boiler, cylinder, and equalizing pipe connections, and in combination with the lubricator and the steam chest or cylinder, a duct connecting the same containing a minimum supply choked passage, a relatively larger by-passage, separate and distinct from the minimum supply choked passage, and a valve for controlling said by-passage, automatically operated by variations in pressure within the duct at the times and in the manner substantially as hereinbefore set forth.
“(2) In a lubricating apparatus provided with suitable boiler, cylinder, and equalizing pipe connections, a casing communicating with the delivery end of the lubricator, provided with a choked or very small permanently open passage for continuous flow of steam and oil in restricted quantity from the lubricator to the steam chest, and with a valve-controlled by-passage separate and distinct from the minimum supply passage, for permitting an increased flow of steam and oil from the lubricator through the casing into the steamchest, substantially as hereinbefore set forth."
The defendant presents two defenses—lack of patentable novelty in view of the prior art and noninfringement.
I have gone carefully over the prior state of the art, and considered all prior patents and devices of this description, and am
satisfied that the Hoffman patent does not anticipate the patent in suit, nor show that it is destitute of patentable novelty. This is also my conclusion in regard to the Schmidt and the several McCoy patents. To give a detailed description of these patents and of their operation would not be profitable. The changes made by Woods were new, useful, and involved such creative elements as to constitute invention. I think the most important feature in the Woods patent is the fixed minimum or choked passage separate from and independent of the valve-controlled automatically open and shut by-passage. The utility of this feature of the Woods patent is demonstrated by the fact that the defendant has adopted it, and strenuously contends for the right to retain it. I do not find it described or suggested in the prior art.
Coming to the question of infringement, it seems to me that infringement is established. Defendants' experts point out at least two features of the defendants' apparatus which it is contended take it out of the scope of the patent in suit. It is claimed that in the defendants' apparatus the choked passage and the valve-controlled by-passage is situated at the steam-chest end of the duct or tallowpipe connection between the lubricator and the steam chest, instead of at the end nearest the lubricator, as shown in the drawing of the Woods patent and that the form of valve used by the defendants to control the by-passage is different from the preferred form shown by Woods. I cannot find that the patent in suit is so limited in terms or scope that the position of the choked passage and the valve-controlled by-passage with relation to the duct is material. In fact the patent says:
“I believe myself to be the first to have devised a lubricating apparatus provided with suitable cylinder and equalizing pipe connections wherein the duct connecting the lubricator and the steam chest at any point in the length of the duct is provided with a minimum supply choked passage, a relatively larger by-passage, separate and distinct from the minimum supply choked passage, and a valve for controlling said by-passage, automatically operated by variations of pressure within the duct."
I think the operation, function, and effect of the devices is the same located in any position along the duct. The defendants' valve which controls the by-passage is a ball valve, acting by gravity, while the valve of the Woods patent in suit is a differential valve, actuated by a spring. I do not see how this is material or avoids infringement. The Woods patent states that this differential form is preferential merely. The patent says that the piston valve is preferentially of the differential type, and that the patentee can, and prefers to, combine it with a spring. It is clear that the patent is not limited, and that either form of valve satisfies the patent.
Claims 1 and 2 of the patent in suit only are in question, and I do not think it would be profitable to discuss or go at length into the expert testimony or a minute description of the drawings and specifications and modes of operation of the defendants' lubricator. It is true that identity of result is not the test of infringement. Ordinarily, there must be substantial identity of means and of operation, and I think this is found here. The defendants claim that the ball valve
of the defendants could not be substituted for the piston valve of Woods without an entire reconstruction of the device. I do not think this is true, broadly stated. It is true that to substitute the one for the other would involve considerable reconstruction, and many changes in construction, but, if any difference in the mode of operation is involved, it is clearly contemplated by the explicit terms of the Woods patent, who provides for the use of either form of valve, and merely suggests the one as being preferred by him. The form of valve is not the essential feature of the invention disclosed by the Woods patent.
It is perhaps proper to mention that I have fully considered the disclosures made in the Woods file wrapper, and find nothing to change my views. The defendants press the point or inquiry rather as to the sufficiency of the description of the invention claimed in the Woods patent. All that is necessary is that the specification be so full, clear, and exact as to enable one skilled in the art to which the invention relates to make and use it without experiments of his own.
It follows that it must be held that claims 1 and 2 of the patent in suit are valid, not anticipated, and infringed by the defendant the Delaware, Lackawanna & Western Railroad Company as a user, and by the Michigan Lubricator Company as maker and vendor.
There will be a decree accordingly.
BOWKER V. HAIGHT & FREESE CO. et al.
(Circuit Court, s. D. New York. May 26, 1906.) WITNESSES—REFUSAL TO ANSWER QUESTIONS BEFORE MASTER—LIABILITY TO
PUNISHMENT FOR CONTEMPT.
It is the duty of a witness being examined before a master in chancery to answer such questions as the master directs after objections thereto have been overruled, and for his refusal to do so he is subject to punishment for contempt, unless he himself makes some claim of personal privilege.
[Ed. Note.For cases in point, see vol. 50, Cent. Dig. Witnesses, $8 37-41.]
On Motions to Require Witness to Answer Questions Before Master, and to Punish Him for Contempt for His Refusal.
Roger Foster and Wm. P. Maloney, for the motion.
LACOMBE, Circuit Judge. This is a motion to require a witness who is being examined before the master to answer certain questions, and also to declare him to be in contempt for refusal to answer, and to punish him for such contempt. The objections to the questions are all, in substance, on the ground of incompetency, irrelevancy, or immateriality. The objections were overruled, and the master directed the witness to answer, whereupon the defendant company reserved its rights by duly recorded exceptions. It was then the duty of the witness to answer; nevertheless, he remained silent. He should answer questions 305, 319, 322, and 400.
As to the motion to punish for contempt, the witness is evidently ig
norant of his duty when under examination, apparently supposing that he is to answer or remain silent as his counsel may elect. For that reason no penalty will now be imposed, but he should take notice that as a witness it is his duty to answer such questions as the court may direct him to answer, and that on the hearing where he is being examined the master sits as a court, with power to rule upon all objections. Should this witness hereafter decline to answer questions which the master directs him to answer, he will run the risk of being adjudged in contempt, and punished by fine or imprisonment, unless to such question he may himself interpose some personal privilege which would excuse his refusal. Council for the receivers will see to it that such witness is served with a copy of this opinion, so that in the case of future contumacy there may be no appeal to the clemency of the court on any theory that he was ignorant of his rights and duties, or supposed that advice of counsel would protect him.
BOWKER v. IIAIGHT & FREESE CO. et al.
(Circuit Court, S. D. New York. May 26, 1906.)
1. ASSIGNMENTS—CHECK AS ASSIGNMENT OF FUNDS ON DEPOSIT IN BANK.
Both at the common law and under the New York statute a check does not operate as an assignment of funds on deposit to the credit of the drawer in the bank against which the check is drawn until it has been accepted or certified by the bank.
[Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Assignments, $$
89-94.) 2. RECEIVERS-RIGHT TO POSSESSION OF PROPERTY--BANK DEPOSIT.
An attorney who received a check from a corporation as a retainer for services to be rendered, and who presented and received payment of the check after he had knowledge that a receiver had been appointed for the property of the corporation, will be required to turn over the sum so received to the receiver.
[Ed. Note. For cases in point, see vol. 42. Cent. Dig. Receivers, 88 117–123.] On Motion by the Receivers to Compel Mr. Franklin Bien to Pay Over to Them the Sum of $2,000.
Fredk. J. Moses, for the motion.
LACOMBE, Circuit Judge. There is no dispute as to the facts, and the conclusion to be drawn from such facts is abundantly settled by authority. The Haight & Freese Company was a corporation, with which, prior to May 9, 1905, Mr. Bien apparently had no business relations. It was a New York corporation, had its principal office and transacted business here, and had a branch office in Boston. On May 8, 1905, the United States Circuit Court in Massachusetts, in an action brought in that court, appointed Mr. James D. Colt a receiver of the property of the corporation within that jurisdiction. On the morning of May 9th Mr. Bien was informed of that proceeding, and was retained for the company for the purpose of proceeding at once to Bos
ton to protect the interests of the corporation. He demanded a retaining fee of $2,000. Thereupon a check for $2,000, dated May 9th, drawn by the defendant company upon the Colonial Bank, in which it kept a deposit account, was delivered to Mr. Bien. It was drawn to the order of “Harvey Watson, Manager," and indorsed, “Pay to the order of Franklin Bien on account of retainer. Harvey Watson, Mgr.” At the time of these transactions, which took place in the morning, no receiver had been appointed in this jurisdiction, but later in the same day, the papers in this suit being presented to the court, Mr. Colt and Mr. Walter D. Edmonds were appointed receivers of the property of the defendant corporation in this jurisdiction, and about 4 p. m. said receiver, Edmonds, having duly qualified, went to the office of the company, served a certified copy of the order upon the proper officer, and demanded delivery of all its property and assets. The papers were promptly turned over to Mr. Bien, and he was, some hours after he had received the check, informed that receivers had been appointed in this jurisdiction. This check was not presented to the bank until the next day, when it was certified; the bank not having yet been advised of the appointment of receivers. Subsequently it was paid to Mr. Bien.
The statute law of this state provides that “a check, of itself, does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” Negotiable Instruments Law, Laws 1897, p. 756, c. 612, § 325. This is but a statutory expression of what was before the well-settled law in both the state and federal courts (Attorney General v. Continental Life Ins. Co., 71 N. Y. 325, 27 Am. Rep. 55; Florence Mining Co. v. Brown, 124 U. S. 385, 8 Sup. Ct. 531, 31 L. Ed. 424), and it disposes of this case.
On the morning of the 10th, when the check was presented for acceptance (certification), there had been no assignment, legal or equitable, of any part of the moneys of the Haight & Freese Company on deposit with the Colonial Bank. The bank was debtor to the company for whatever balance stood to the latter's credit, which it was to pay out on the order of the corporation. Down to the time when the bank actually executed its acceptance, payment of the check might have been countermanded by the company, and in such case it would be the duty of the bank to refuse payment. The money on deposit was property of the company which was not turned over to Mr. Bien until the morning of the 10th, when the check was certified, and at that time he knew that receivers in this jurisdiction had been appointed, and that he was receiving from the bank money which should be turned over to them. As an employé of the company, its retained counsel, and as an officer of this court, he may not retain in his possession property of the company thus obtained.
Receivers may take an order directing payment, with interest, within 10 days.