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were again rejected, September 6, 1875, in a letter which said: "The employment of locks of various kinds for securing the bolt-work of a door is too common and well-known to require further references. Either Hollen's or Rutherford's lock can be applied to the bolt-work of a door without the least change being made to adapt it thereto. The mere substitution of one wellknown kind of locks for another kind equally well-known has been decided again and again as not a patentable difference.”
On December 3, 1875, an interference was declared between claims 1 and 2 and four other applications; and between claim 3 and four other applications. On February 12, 1876, the interference as to claims 1 and 2 was dissolved, and they were again rejected. A further amendment of the specification was made February 15, 1876, and claims 1 and 2 were altered, so as to read as follows: “(1) The combination, substantially as herein before set forth, a of a time-mechanism and a Combination-lock with the bolt-work of a safe or vault door, the time-mechanism being constructed to act in conjunction with and render inoperative the combination-lock when locked, said lock having its bolt or bearing constructed to receive the pressure of the series of bolts constituting the bolt-work of the door when locked, and preventing the unlocking of said bolt-work until the arrival of a certain predeterminate time. (2) The combination, substantially as hereinbefore set forth, of a combination-lock and the series of bolts constituting the bolt-work of a safe or vault door, with a time-movement and a lever connection, said lever being constructed and located to render the bolt or bearing of the combination-lock inoperative when locked, the tumblers of the combination-lock and its spindle being free to rotate while the bolt-work is held in its locked position by the bolt or bearing of the combination-lock." The claims were not allowed, but à new interference as to them was declared, March 8, 1876, with the same four applications, the subject-matter being, "the combination of a time-mechanism, and a combination-lock, with the bolt-work of a door.”
On the eleventh of January, 1877, the application was amended by withdrawing claims 1 and 2. Two days before this, and on January 9, 1877, Sargent had filed the application on which No. 186,369 was granted. The special construction and arrangement of parts, a claim for which, as the specification of that patent states, was made in a separate application, was covered by the claim of patent No. 198,157, granted to Sargent, December 11, 1877, in pursuance of the application of July 12, 1875, that claim being as follows: “In combination with a time-movement and a lock, a yoke lever or equivalent, adapted to be connected with the dog, fence, or angle-bar of said lock, to hold it from falling into the slots or notches of the combination-wheels, except when released by the time-movement, substantially as described.” The present suit does not involve any infringement of No. 198, 137.
As before remarked, the specification of No. 186,369, the patent here sued on, contains the following statement: “The lock-bolt or bearing of the combination-lock may be of a circular, segmental, or other desired form, provided said lock-bolt is arranged and adjusted so as to turn upon a suitable axis or bearing, and is so constructed that, in one position, it will prevent the retraction of the bolt-work, so as to retain the safe or vault door locked, while, in another position, it will admit of the bolt-work being retracted, for the purpose of allowing the safe or vault door to be opened.” This clause had not appeared in any of the specifications from and including that filed June 11, 1873, until it was inserted in the one filed January 9, 1877, on which the patent No. 186,369 was granted. It is a limitation without which, it must be assumed, in view of the numerous prior rejections, the claims allowed would not have been granted. The same clause was inserted May 7,1877, in the specifi. cation of the application of July 12, 1875, as it remained after claims 1 and 2 therein were withdrawn, January 11, 1877, and that clause appears in the specification of No. 198,157, as issued December 11, 1877.
The defendants' lock, which it is alleged infringes the two claims of No. 186,369, is of the construction shown by the following drawing, made by the plaintiff's witness Millward:
In that drawing, A is the case of the lock; B, the bolt; C, the dog, pivoted in the bolt at c, and engaging, when held up-by the time-mechanism, behind a fixed stump, D; E, the arbor of the lock, the hook, e, of which engages with the hook, f, of the dog, and throws the bolt, B, back, when the dog is released by the time-mechanism. The same hook, e, by running on the sur. face, g, throws the bolt, B, out to lock the door. F is the time-attachment, which has a lever, G, the arm of which, extending through the case of the lock, has the hook, H, at its lower end, which holds up the pivoted arm, I, and through it the dog, C.
Another form of the bolt-work of the defendants' lock is shown by the following drawing:
It is contended for the defendants, that each of the combinations covered by the two claims of No. 186,369 must be limited to the particular devices described in the specification and shown in the drawings, and to their mode of operation, both claims being limited by the words “substantially as hereinbefore set forth;" and that, under this construction, the defendants do not infringe. The second claim imposes on the combination claimed in it theo limitation, that the tumblers of the combination-lock and its spindle shall bei free to rotate, while the bolt-work is held in its locked position by the bolt or bearing of the combination-lock. This is enforced by the language of the specification, which, in stating in what the invention consists, states that "the peculiarity and novelty" of the union or combination, consisting of a combination-lock, a time-movement, and a yoke or lever connection, is, that “when the said combination-lock, with its time-mechanism, is arranged upon a safe or vanlt door, to operate in conjunction with the bolt-work thereon, and all locked, the tumblers or combination-wheels of said lock, and the spindle of the same, together with its usual indicator, are all left free to be moved or rotated without exerting any unlocking action or strain whatever upon the mechanism composing the combination-lock, or the delicate mechanism composing the time-movement.” Again, the specification says: "Another feature of the utmost importance present in the combination of parts brought together is, that the connection between the time-movement and the combination-lock is such that, when the time-movement is set, the parts adjusted, and the safe doors closed, the combination-lock will be rendered inoperative until a predeterminate hour, during which interval of time the unlocking action of the combination-lock will be suspended by the time-movement, while the tumblers or combination-wheels of the aforesaid combination-lock are left free to rotate, if power is exerted upon the dial-spindle for the purpose of twisting said spindle out of place, or impairing the lock-mechanism, and, by such, the working parts of the combination-lock cannot be injured or rendered useless for future action." This feature, thus declared to be peculiar and novel, of the free rotation of the tuni blers, is not shown to exist in the defendants' lock. The plaintiff's expert, Mr. E. S. Renwick, testifies that this peculiarity is not found in the defendants' lock, and that, for that reason, that lock does not ein body the combination of claim 2 of No. 186,369.
As to claim 1, it is limited, by the language of the specification, to a combination-lock having a bolt or bearing which turns on an axis, or revolves. The defendants' lock has a sliding-bolt. It was not new, at the time ofen Sargent's invention, to apply a time-movement to dog the sliding-bolt of a lock; and it is plain that he limited himself to a rotating bolt. The specification makes it as necessary that the combination-lock should have a turning or revolving bolt, or bearing, as that such bolt or bearing should have the quality of receiving the pressure of the bolt-work, when locked. This turning or revolving feature of the bolt or bearing is made, by the specification, as necessary to the combination-lock of claim 2, as to that of claim 1.
In patents for combinations of mechanisın, limitations and provisos, imposed by the inventor, especially such as were introduced into an application after it had been persistently rejected, must be strictly construed against the inventor and in favor of the public, and looked upon as in the nature of disclaimers. As was said in Fay v. Cordesman, 109 U.S. 408, 420; S. C. 3 SUP. Cr. REP. 236, 244, "the claims of the patents sued on in this case are claims for combinations. In such a claim, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim, and his privilege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material,
leaving open only the question whether an omitted device is supplied by an equivalent device or instrumentality. Water Meter Co. v. Desper, 101 V. S. 332; Gage v. Herring, 107 U. S. 640; S. C. 2 SUP. CT. REP. 819.”
These considerations lead to the conclusion that the decree of the circuit court was correct and must be aflirmed.
(115 U. S. 41) PIRIE and others, Partners, etc., v. TVEDT and another, Partners, etc.
(May 4, 1885.) REMOVAL OF CAUSE-SEVERAL DEFENDANTS, ONE OF SAME STATE AS PLAINTIFF.
In a suit on a contract brought by a citizen of one state against a citizen of the same state and a citizen of another state, there is no such separate controversy as entitles the citizen of the other state to remove the cause, even though he answers separately from his co-defendant setting up a separate defense, and the statutes reg. ulating proceedings in the state where the suit was brought allowed judgments to be given in actions ex contractu for one or more plaintitts, or for one or more defendants. In Error to the Circuit Court of the United States for the District of Minnesota.
G. E. Cole, for plaintiffs in error. No appearance for defendant in error.
WAITE, C. J. This is a writ of error brought under section 5 of the act of March 3, 1875, c. 137, (18 St. 470,) for the review of an order of the circuit court remanding a cause which had been removed from a state court. suit was brought by Tvedt Bros., citizens of Minnesota, against Carson, Pirie, Scott & Co., citizens of Illinois, and Owen J. Wood and Theodore S. Stiles, citizens of Minnesota, to recover damages for a malicious prosecution, it being averred in the complaint that “the said defendants, confederating together, and with a malicious and unlawful design and intent had and entertained by them, and each of them, to injure, oppress, and harass these plaintiffs, and to break them up in business, wrongfully, maliciously, unlawfully, and without any reason, or provocation, or probable cause, caused a certain action to be commenced against these plaintiffs, in which said Carson, Pirie, Scott & Co. were plaintiffs, for the pretended recovery of money, and then and there wrongfully, unlawfully, and maliciously, and with the aforesaid intent so had and entertained by each and all of said defendants, wickedly and maliciously conspired together, and without probable cause, caused to be issued
a writ of attachment upon the stock of goods, wares, and merchandise of these plaintiffs; *
that, under said writ of attachment, and by direct instruction of the defendants, the sheriff of said county levied the same upon the stock of goods, and closed up the store, and stopped and broke up the business of these plaintiffs.” The defendants Wood & Stiles answered separately from their co-defendants, denying all malice and conspiracy, and saying that they, as attorneys at law, and acting for and under the instructions of Carson, Pirie, Scott & Co., brought the action and sued out the attachment in good faith, and not otherwise. The other defendants also filed a separate answer, admitting that they caused the action to be brought and the attachment to be issued, and that the attachment had been vacated, though the action itself was still pending and undisposed of.
Upon these pleadings Carson, Pirie, Scott & Co. filed a petition under the second clause of section 2 of the act of 1875, for the removal of the cause to the circuit court of the United States, on the ground that as the action was in tort, and therefore in its nature severable, there was in it “a controversy which is wholly between citizens of different states, to-wit, between the plaintiffs and Pirie, Scott & M'Leishi,
and that said controversy can be fully determined as between them."
After the case got into the circuit court on this petition, it was remanded because there was but one controversy in the suit, and that between the plaintiffs, citizens of Minnesota, on one side, and all the defendants, citizens of Minnesota and Ninuis, on the other. This ruling is the only error assigned.
It has been decided at this term in Louisville & N. R. Co. v. Ide, 114 U. S. 52, S. C. ante, 735, that, in a suit on a contract brought by a citizen of one. state against a citizen of the same state and a citizen of another state, there was no such separate controversy as would entitle the citizen of the other state to remove the cause, even though he answered separately from his codefendant setting up a separate defense, and the statutes regulating the practice, pleadings, and forms and modes of proceeding in the state where the suit was brought, allowed judgments to be given in actions ex contractu for one or more plaintiffs and for one or more defendants. In that case it was said: "A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines, 2 Sumn. 348. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to a final determination in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings. Here, it is certain joint contracts, entered into by all the defendants for the transportation of property. On the one side of the controversy upon that cause of action is the plaintiff, and on the other all the defendants." We are unable to distinguish this case in principle from that. There is here, according to the complaint, but a single cause of action, and that is the alleged malicious prosecution of the plaintiffs by all the defendants acting in concert. The cause of action is several as well as joint, and the plaintiffs might have sued each defendant separately, or all jointly. It was for the plaintiffs to elect which course to pursue. They did elect to proceed against all jointly, and to this the defendants are not permitted to object. The fact that a judgment in the action may be rendered against a part of the defendants only, does not divide a joint action in tort into separate parts any more than it does a joint action on contract.
The order remanding the cause is affirmed.
(114 U. S. 649)
MARTINSBURG & P. R. Co. 0. MARCA.
(May 4, 1885.) RAILROAD COMPANY-CONSTRUCTION CONTRACT_PAYMENT-APPROVAL OF WORK BY EN
A contract for the construction of a railroad provided that the company's en. gineer should, in all cases, determine questions relating to its execution, includ. ing the quantity of the several kinds of work to be done, and the compensation earned by the contractor at the rates specified; that his estimate should be final and conclusive; and that “whenever the contract shall be completely performed on the part of the contr. tor, and the said engineer shall certify the same in writing under his hand, together with his estimate aforesaid, the said company shall, within 30 days after the receipt of said certificate, pay to the said contractor, in current notes, the sum which, according to this contract, shall be due.” Held, that in the absence of fraud, or such gross mistake as would necessarily iniply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the parties. In Error to the District Court of the United States for the District of West Virginia.
Wayne MacVeagh, for plaintiff in error. No appearance for defendant in.
*HARLAN, J. This case is within the principles announced in Kihlberg v.. U.S. 97 U. S. 398, and Sweeney v. U. 8. 109 U. S. 618, S. C. 3 Sup. Ct.