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23 F.(2d) 91

Under the law as amended by the addition of the proviso above quoted, it is clear that the trustee cannot be required to pay taxes assessed against property set aside to the bankrupt as exempt. It forms no part of the bankrupt estate administered by the trustee, and such equity as there may be in the property over and above valid liens belongs to the bankrupt. Lockwood v. Exchange Bank, 190 U. S. 294, 23 S. Ct. 751, 47 L. Ed. 1061.

Affirmed.

MELCHIOR-ARMSTRONG-DESSAU CO. OF
DELAWARE, Inc., v. BANCO COMER-
CIAL DE PUERTO RICO et al.
Circuit Court of Appeals, First Circuit.
December 2, 1927.

No. 2149.

Courts 405(12)—Order of Supreme Court of Porto Rico, dismissing appeal for lack of parties, held not appealable; final judgment (Jones Act March 2, 1917, § 43 [48 USCA §

865]).

Order of Supreme Court of Porto Rico, dismissing an appeal for lack of parties, is not "final judgment" or decree, reviewable by Circuit Court of Appeals under Jones Act March 2, 1917, § 43 (48 USCA § 865 [Comp. St. 8

3803rr]).

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

On November 18, 1920, Central Bayaney made a mortgage to the appellee (herein called the bank) to secure about $200,000. (Round and approximate figures will be used in this opinion.) On February 25, 1921, Central Bayaney gave a second mortgage on the same property to secure $42,500, due appellant's predecessor in title. The bank, as least in form, foreclosed its first mortgage; bought in the property for some $75,000 less than the face of its mortgage; and then transferred it, subject to a mortgage, to the other defendant, Giorgetti. After this alleged foreclosure and sale, the appellant brought, on December 14, 1923, a suit against the bank and Giorgetti, described in the opinion of the District Court as "an action to recover on a mortgage," but in the opinion of the Supreme Court described as "an ordinary action of debt."

Originally the appellant did not join Central Bayaney as a party defendant; but as a result of an order on demurrers for lack of proper parties, Central Bayaney was, by an amended petition, joined as a party defendant-appellant adding an allegation to the effect that on March 6, 1923, Central Bayaney was adjudged bankrupt and Francisco Garcia duly appointed as trustee. No answer was filed by Garcia or Central Bayaney, and on plaintiff's motion a default against the defendant Central Bayaney was entered on May 15, 1924. No exception was saved or appeal taken from the order of the district court

Appeal from Supreme Court of Porto that Central Bayaney be made a party. Rico.

Suit by the Melchior-Armstrong-Dessau Company of Delaware, Inc., against the Banco Comercial de Puerto Rico and others. Plaintiff appeals from an order of the Supreme Court of Porto Rico, dismissing its appeal. Appeal dismissed for want of juris

diction.

Henry G. Molina, of San Juan, Porto Rico, for appellant.

Francis E. Neagle, of New York City (Rounds, Dillingham, Mead & Neagle, of New York City, on the brief) for appellee Banco Comercial de Puerto Rico.

After a full trial the district court of Arecibo held for the defendant and dismissed the complaint. No judgment was ever entered against Central Bayaney, the debtor. The appellant thereupon appealed to the Supreme Court, but did not join Central Bayaney as an appellee, or cause any notice to be served on it or on its trustee in bankruptcy. dismissed the appeal, without considering the Thereupon, on motion, the Supreme Court case on its merits, holding that Central Baybeen brought before that court. aney was an adverse party and should have

Summarized, the plaintiff's claims were: (1) That the foreclosure proceedings on Before BINGHAM, JOHNSON, and the first mortgage were invalid in that the ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge. The present appellant's appeal from a final judgment against it by the district court of Arecibo was dismissed by the Supreme Court of Porto Rico on the single ground that Central Bayaney was an adverse party and should have been joined as an appellee.

second mortgagee was not joined.

(2) That this alleged invalidity results in giving the second mortgagee a first lien on the mortgaged property, entitling it, as against the bank and the bank's grantee, to payment out of the mortgaged property.

(3) The gist of the plaintiff's argument is that the proceeding is in essence an in rem proceeding against property applicable to

the payment of its debt and now held by the der doctrine of res judicata or estoppel by judgtwo defendants.

We do not discuss the obviously great difficulties of supporting the plaintiff's theory that an invalidity in the foreclosure proceedings of the first mortgage killed that mortgage, instead of merely requiring new and valid foreclosure proceedings, and thus transmuted a second mortgage into a first lien; for we are driven to the conclusion that we have no jurisdiction on this appeal to require the Supreme Court of Porto Rico to consider plaintiff's appeal on its merits.

The jurisdiction of this court is grounded on section 865, tit. 48, of the U. S. Codesection 43 of the Jones Act of March 2, 1917; 39 Stat. p. 966—which reads:

"That writs of error and appeals from the final judgments and decrees of the Supreme Court of Porto Rico may be taken and prosecuted to the Circuit Court of Appeals for the First Circuit and to the Supreme Court of the United States, as now provided by law."

The order of the Supreme Court of Porto Rico dismissing for lack of parties was not a final judgment or decree within the meaning of this statute; it was a refusal to hear and decide the case. This was in effect recognized by this court in Petition of Zeno, 14 F.(2d) 418, 423. The case falls under the rule laid down by the Supreme Court of the United States in Harriman v. Holler, 111 U. S. 796, 4 S. Ct. 697, 28 L. Ed. 602; Railroad Co. v. Wiswall, 23 Wall. 507, 23 L. Ed. 103; Insurance Co. v. Comstock, 16 Wall. 258, 21 L. Ed. 493.

The result is that the present appeal must be dismissed for want of jurisdiction. The appeal is dismissed, without costs.

ment.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interlocutory.]

2. Judgment 542-Where record disclosed court lacked jurisdiction of subject-matter, decree in respect thereto was ineffective as estoppel.

Where record affirmatively disclosed that court had no jurisdiction of a certain subjectmatter, because not in issue in the pleadings or in the evidence, any decree attempting to adjudicate such matter was of no effect as an estoppel.

3. Patents 327 (10)—Plaintiff's failure to assert another patent than one involved in infringement suit against defendant's device did not estop plaintiff from complaining of device in subsequent suit.

In patent infringement suit, plaintiff's failure to assert another patent than one involved in the suit against defendant's alleged infringing device did not estop plaintiff from complaining of such device in subsequent suit, under doctrine of res judicata or estoppel by judgment. 4. Judgment 540-Doctrine of “res judicata" requires that parties and subject-matter must have been same in both actions.

The doctrine of res judicata requires that not only must the parties have been the same in the earlier and later actions, but the subject-matter must have been the same.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Res Adjudicata.]

5. Judgment 717-To create "estoppel by judgment," where subiect is not identical, fact must have been adjudicated in former action.

To create an estoppel by judgment, where the subject-matter of the case is not identical, it must be shown that the particular right, question, and fact in controversy in the later action was necessarily adjudicated in the earlier

one.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Estoppel by Judgment.]

6. Patents 328—1,307,733, claims 3, 4, 5, for lubricating device, held valid and infringed.

Gullborg patent, No. 1,307,733, claims 3, 4, BASSICK MFG. CO. v. LARKIN AUTOMO- 5, for lubricating device, held valid and in

TIVE PARTS CO.

fringed.

District Court, N. D. Illinois, E. D. December 5, 7. Patents 328-1,307,734, claims 14, 15, for

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23 F.(2d) 92

an application asking that court to advise whether it may in the future commit acts actually found in this court to amount to infringe

ment.

In Equity. Patent infringement suit by the Bassick Manufacturing Company against the Larkin Automotive Parts Company. On plaintiff's application for preliminary injunction. Application granted.

See, also, 19 F. (2d) 939.

Williams, Bradbury, McCaleb & Hinkle, of Chicago, Ill. (Lynn Williams, of Chicago, Ill., of counsel), for plaintiff.

Dyrenforth, Lee, Chritton & Wiles, of Chicago, Ill. (John Lee, of Chicago, Ill., of counsel), for defendant.

LINDLEY, District Judge. The plaintiff presents its petition for a preliminary in junction against infringement of claims 3, 4, and 5 of Gullborg patent 1,307,733, and claims 1, 2, 6, 14, and 15 of Gullborg patent 1,307,734. These patents have been previously discussed by this and other courts.1 The only additional prior art references submitted do not impress the court. At the conclusion of the oral argument the court announced its decision that defendant had con

tributorily infringed claims 1, 2, 6, 14, and 15 of patent 1,307,734 by the manufacture and sale of compressors with the intention that the purchasers should combine them for use with plaintiff's Alemite pin fittings and

couplers.

[1] As to the complaint that the manufacture and sale of the present Larkin pin fitting is a direct infringement of claims 3, 4, and 5 of patent 1,307,733 and a contributory infringement of claims 14 and 15 of the patent last above named, defendant insists that the contrary is established under the doctrine of res adjudicata or estoppel by judgment by the decree of the District Court of Ohio of October 14, 1924. It appears, however, that that decree was interlocutory in character. In deed, the case in which it was entered has not yet reached a final decree. The court may hereafter open the interlocutory order for rehearing upon additional proofs; it may set aside or modify the same. Consequently, being a decree awarding a perpetual injunction in a patent suit, but including an order of

reference to a master to ascertain the damages suffered because of the infringement, it

1 Lyman Mfg. Co. v. Bassick Mfg. Co. (C. C. A.) 18 F. (2d) 29; Bassick Mfg. Co. v. Standard Produce Mfg. Co. (D. C.) 19 F. (2d) 937; Bassick Mfg. Co. v. Larkin Automotive Parts Co. (D. C.) 19 F. (2d) 939; Larkin Automotive Parts Co. v. Bassick Mfg. Co. (C. C. A.) 19 F. (2d) 944.

is unquestionably only interlocutory, and not final, and therefore does not operate as an estoppel in a subsequent suit under any recognized doctrine of res adjudicata or estoppel by judgment. See Brush Electric Co. v. Western Electric Co., 76 F. 761 at page 763 (C. C. A. 7th Cir.); American Foundry Equipment Co. v. Wadsworth, 290 F. 195 (C. C. A. 6th Cir.); Harmon v. Struthers (C. C.) 48 F. 260; Morss v. Knapp et al. (C. C.) 37 F. 351; Stromberg Co. v. Zenith Co. (D. C.) 220 F. 154, 156; Roemer v. Neumann (C. C.) 26 F. 332; Bradley Mfg. Co. v. Eagle Co., 57 F. 980, 985 (C. C. A. 7th Cir.). [2] However, even if the decree of the Ohio court should become final before this order is

entered, the defense is not made out. The pin fitting being manufactured by defendant have been similar to the pin fitting now complained of, except that the present fitting is smaller in size. The acts of infringement now complained of involve infringement of claims 3, 4, and 5 of patent 1,307,733, none of which was involved in the prior litigation. The plaintiff now complains, also, that defendant's sale of its present pin fitting and

at the time of the hearing in Ohio appears to

its sale of compressors and couplers for use in conjunction therewith are in contributory infringement of claims 14 and 15 of Gullborg patent, No. 1,307,734. Upon a careful examination of the record the court finds that, although the Ohio decree, in one paragraph, mentioned said claims, it appears that the question of their infringement by the manufacture and sale of the defendant's pin fittings was not in issue in the pleadings or in the evidence. Where the record affirmatively discloses that the court had no jurisdiction of certain subject matter, any decree is of no effect as an estoppel. See 34 C. J. attempting to adjudicate such subject matter g 834, p. 530, and section 1183, p. 768, and

authorities there cited.

[3-5] As to the defense that by its failure ant's pin fitting in the Ohio suit, the plainto assert patent 1,307,733 against the defendtiff is now estopped to complain of the present pin fitting, it is a complete answer to say that plaintiff was in no wise bound to assert patent 1,307,733 in that suit. The subjectmatter there under consideration was patent 1,307,734, and the asserted infringement thereof. The doctrine of res adjudicata has no application for the essentials of that doctrine are not present. The doctrine requires that not only must the parties have been the same, but the subject matter must have been the same. See Cromwell v. Sac County, 94 U. S. 351, 352, 24 L. Ed. 197. Nor does the

doctrine of estoppel by judgment apply, for the reason that in order for an estoppel to be created, where the subject-matter of the two cases is not identical, it must be shown that the particular right, question, and fact now in controversy was necessarily adjudicated. No court has improved upon the language of the Supreme Court in the case last above cited in this respect. So, disregarding the fact that the Ohio decree is of such character that it cannot be interposed as an adjudication or estoppel, even if, prior to the announcement of this adjudication, it should proceed to a final decree, still for the reasons last above stated it could not then be regarded as a de

fense.

[6,7] The court is of the opinion that the averments of the application for the preliminary injunction are clearly proved; that the function, method of operation, and result of defendant's present fittings are substantially identical with those of the pin fittings previously held by this court to be infringement of the claims 3, 4, and 5 of patent 1,307,733; that, though the prior art discloses each of the several elements of the Alemite pin fitting, the invention achieved a new result, involved a novel combination, and that the additional prior art, Neumeister patent, No. 1,115,007, and the Omnia publication, now submitted to the court, does not alter that situation; that the manufacture and sale of the same fitting is a contributory infringement of claims 14 and 15 of patent 1,307,734, as is also the manufacture and sale of the defendant's compressors, hose, and couplers for use in conjunction therewith; that the mere transposition and location of elements do not avoid the infringement complained of; that, though the function of the valve may have been impaired by the reversal of location of elements, this impairment does not modify the result sufficiently to avoid infringement. See King Ax Co. v. Hubbard, 97 F. 795 (C. C. A. 6, Taft, Judge).

The court has previously made its finding as to the additional contributory infringement of claims 1, 2, 6, 14, and 15 of Gullborg patent, 1,307,734, and nothing urged in the brief of the defendant impels the court to alter its decision in that respect. The defenses based upon the prosecution of the application for the Gullborg patent have been previously urged in this court, as well as in the Circuit Court of Appeals.3 The court 2 See Bassick Mfg. Co. v. Larkin Automotive Parts Co. (D. C.) 19 F. (2d) 939.

3 See Larkin Automotive Parts Co. v. Bassick Mfg. Co. (C. C. A.) 19 F. (2d) 944.

sees no reason to modify its conclusion in that respect.

The suggestion that the court should not issue a preliminary injunction without a full and complete hearing would appeal to the court with greater force if the question of validity of these patents were now for the first time at issue, or if the construction and acts of the defendant were of novel character. As it is, the court sees no reason why this application should be prolonged, and in view of the fact that the court has heretofore considered the questions of validity, that all of the prior art has previously been fully considered, except two new references, which the court has at this time thoroughly examined, and that the construction of the defendant is not greatly different from that of other infringers, any further delay would be

without purpose.

should not proceed in this matter for the rea[8] The defendant insists that this court son that the District Court in Ohio has pending before it an application on behalf of the defendant, asking of that court its advice as to whether or not the present construction can be considered as an infringement. That application recites that without defendant's consent other parties have attempted to do the thing now complained of as contributory infringement, and that defendant is anxious to know whether or not it shall advise them they may proceed. There the defendant takes the position that it has not committed any contributory infringement, but desires to ascertain whether it may proceed to do that which is now complained of. That application was filed a few days before the present application for injunction. The present application does not seek the same relief. It seeks an immediate injunction against the present violation of plaintiff's rights; it charges, and the evidence supports the charge, that the defendant was at the time of the filing of this application, and still is, infringing the defendant's patent. The court knows of no reason why it should permit the defendant to continue to infringe merely in order that it may or may not hereafter prosecute an application in another court, asking that court to advise it whether it may in the future commit the acts actually found in this court to amount to infringement. Comity does not require such action, nor is there any reason why this court should not proceed to grant the relief to which the plaintiff is entitled. There will be an order of preliminary injunction as prayed, at the cost of defendant.

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1. Admiralty 16-Admiralty court has no jurisdiction of vessel's claim for demurrage paid railroad for use of cars into which cargo was unloaded; there being no maritime lien, notwithstanding agreement.

Vessel has no maritime lien for demurrage charges paid to railroad company for use of cars into which cargo was unloaded, and such nonmaritime claim cannot be changed into maritime lien by agreement of parties in bill of lading, so that admiralty court has no jurisdiction of such claim.

2. Shipping 154, 185-Vessel has lien on cargo for ocean freight and demurrage.

It is universally recognized in United States that vessel has lien on cargo for ocean freight and demurrage.

3. Shipping 154, 185-Vessel's expressly retained lien on cargo for ocean freight and demurrage is not lost by delivery. Vessel's lien on cargo for ocean freight and demurrage is not lost by delivery, if vessel expressly retains it.

4. Shipping 170-"Demurrage," in maritime sense, is charge allowed vessel for delaying her in unloading.

"Demurrage," in maritime sense, is charge allowed to vessel for delaying her in unloading, in nature of compensating her for freight she might have earned, had she not been so delayed. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Demurrage.]

5. Shipping 154-Basis of lien for "dead freight" is directly related to vessel's services, as distinguished from "demurrage" to rail

road after cargo is unloaded.

In maritime sense, the expression "dead freight" is used to denote compensation payable to owner when charterer failed to ship full cargo, and assuming valid lien for dead freight may be created by agreement in charter or bill of lading, basis of such lien is directly related

to vessel's services, as distinguished from demurrage paid railroad for use of cars into which cargo is discharged.

138,000 feet of lumber ex steamship West Keats, in which the William C. Dorsey & Sons Company intervened. Libel dismissed.

Janney, Ober, Slingluff & Williams, of Baltimore, Md., for libelant.

John H. Skeen and Charles Lee Merriken, both of Baltimore, Md., for respondent.

COLEMAN, District Judge. This is a libel in rem by the California & Eastern Steamship Company against a cargo of lumber carried from Portland, Or., to Baltimore, aboard one of its vessels, the West Keats, whereby libelant seeks to recover certain demurrage charges paid to the railroad company for the use of its cars into which the lumber was discharged at the pier upon the vessel's arrival.

The material facts are not in dispute. The lumber was consigned to the order of the shipper, the Chapman Lumber Company, notify the Burgan Lumber Company, at Baltimore. This latter company sold the cargo to the claimant Dorsey while it was still en route in the vessel, and upon arrival at Baltimore was discharged into railroad cars which had been spotted at the pier at the request of the notify consignees; the vessel at the same time giving written notice to the railroad company that it retained its lien for ocean freight and other charges, and to the notify consignees and claimant that any railroad demurrage charges accruing would be for their account. Notice was given to the claimant Dorsey, by the notify consignees, that bills of lading covering the shipment were held for his order subject to the ocean freight and railroad demurrage. Dorsey refused, for some days, to accept delivery, claiming that he was unable to identify this particular shipment. However, after some correspondence, identity was established to his satisfaction, and he agreed to take the lumber, but refused to pay the railroad demurrage charges.

Thereupon libelant refused to allow the lumber to be released, claiming a lien for the

[Ed. Note. For other definitions, see Words railroad demurrage, and claimant instituted and Phrases, Dead Freight.]

6. Carriers 100(1)-Railroad ordinarily has no claim against vessel for demurrage for use of cars into which cargo was discharged. Railroad normally, in absence of special arrangements, has no claim which it may assert against vessel or her owner for demurrage for use of cars into which cargo is discharged at pier, but its rights would lie against shipper or consignee.

In Admiralty. Libel in rem by the California & Eastern Steamship Company against

replevin proceedings, secured the lumber under bond, and paid the ocean freight. Libelant paid the railroad company its demurrage charges and thereupon filed this libel against claimant Dorsey and the cargo to recoup itself. The libel was subsequently amended, dismissing Dorsey and continuing the action in rem only against the cargo. Claimant Dorsey has intervened, excepting to the jurisdiction of this court on the ground that the subject-matter of the libel is not maritime, and,

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