and since the denial of a discharge, or failure to apply for it, in a former proceeding, is available as a bar, by analogy the pendency of a prior application for discharge is available in abatement as in the nature of a prior suit pending, in accordance with the general rule that the law will not tolerate two suits at the same time for the same cause. [3] Here there was no plea or objection by any interested party, and it is argued that this is a necessary prerequisite to a consideration of the matter-that the court may not refuse a discharge ex mero motu. That such is the rule where the action of the court is based upon one or more of the acts of the bankrupt which operate to preclude a dis S. 540, 548, 24 S. Ct. 780, 48 L. Ed. 1110; Louisville Trust Co. v. Cincinnati, 76 F. 296, 318, 22 C. C. A. 334; In re Sussman (D. C.) 190 F. 111, 112. The order of the District Court denying the first application is not before us for consideration. If erroneous, relief may be afforded by proper and timely application to that court, or by an appellate review of the order. Judgment affirmed. (269 U. S. 177) CONCRETE APPLIANCES CO. et al. v. 1925.) No. 44. 8 1. Evidence charge may be conceded. But the objection (Argued Oct. 14-15, 1925. Decided Nov. 16, that the issue is already pending, as that it has been adjudged, goes to the right of the bankrupt to maintain the later application, not to the question of the evidence or grounds upon which the relief may be granted if the application be maintainable. The refusal to discharge was not on the merits, but upon the procedural ground that the matter could not properly be considered or adjudged, except upon the prior application. This application had been reported upon adversely by the referee, was still pending, and, in ordinary course, could have been con *124 sidered and acted *upon by the court. To ignore it, and make a second application, involving a new hearing, was an imposition upon and an abuse of the process of the court, if not a clear effort to circumvent the statute by enlarging the statutory limitation of time within which an application for a discharge must be made. In such a situation the court may well act of its own motion to suppress an attempt to overreach the due and orderly administration of justice. What is said in the Fiegenbaum Case, supra (121 F. 70, 57 C. C. A. 410), is appropriate here: Courts may take judicial notice that principle of conveying and distributing a mobile substance by gravity has found exemplification for centuries in apparatus for lifting water by power to a central reservoir, from which its flow is induced by gravity through suitable conduits to fixed points, or through movable pipes or hose to varying selected points. 2. Patents 328-948,719, for apparatus for transferring concrete from source of supply to working point on building, held invalid. Callahan patent, 948,719, for "material concrete or other plastic materials from a suitatransferring apparatus" for use in transferring ble source of supply to working points on building or other structure in course of construction, held invalid for want of invention. 3. Patents 17, 27(1)—Applying devices old in other arts to new uses not invention; adaptation of familiar appliances to distribute wet concrete and applications for patents held evidence of mechanical or engineering skill, and not of invention. "Not only should the court of bankruptcy protect the creditors from an attempt to retry an Merely applying devices old in other arts to issue already tried and determined between the new uses is not invention, and independent same parties, but the court, for its own protec-adaptations by engineers and builders of familition, should arrest, in limine, so flagrant an attempt to circumvent its decrees." [4] There is nothing in Bluthenthal v. Jones, 208 U. S. 64, 28 S. Ct. 192, 52 L. Ed. 390 to the contrary. There the previous denial of a discharge had been in another court sitting in another state. This court held that, while an adjudication in bankruptcy, refusing a discharge, came within the rule of res judicata, the court in which the second proceeding was brought was not bound to search the records of other courts and give effect to their judgment. This is far from saying that the court may not take judicial notice of, and give effect to, its own records in another, but interrelated, proceeding, as this was. See In re Loughran, supra, 218 F. 621, 134 C. C. A. 377; Bienville Water Supply Co. v. Mobile, 186 U. S. 212, 217, 22 S. Ct. 820, 46 L. Ed. 1132; Dimmick v. Tompkins, 194 U. ar appliances to distribution of wet concrete in On a Writ of Certiorari to the United Patent infringement suit by the Concrete Appliances Company and another against John E. Gomery and others. To review a decree of the Circuit Court of Appeals (291 F. 486), modifying and affirming a decree for defendants (284 F. 518), plaintiffs bring certiorari. Affirmed. *178 *Mr. Stephen J. Cox, of New York City, for petitioners. (46 S.Ct.) Mr. Justice STONE delivered the opinion of the Court. Mr. George Bayard Jones, of Chicago, Ill., the "receiving means," a hopper, in which for respondents. the concrete is deposited. From thence it flows by gravity into the conduit, and through it to the form or mold, which may be in any part of the structure at a suitable level beAs the buildlow the base of the hopper. ing progresses, the conveyor, the hopper, and the attached conduit may be progressively raised within the tower, so that gravity may carry the flowing concrete to any desired point at lower levels in the structure. The The several elements in the petitioners' claims which we have enumerated embrace familiar devices long in common use, separately or in smaller groups, both in this and in kindred mechanical arts. It is not argued that there is any novelty in such units or groups, and the only serious question pre *180 In an earlier suit petitioners sought to enjoin an infringement of the Callahan patent, No. 948,719, and the Circuit Court of Appeals for the Sixth Circuit held the patent valid. Concrete Appliances Co. v. Meinken, 262 F. 958. Later the present suit was brought in the District Court for the Eastern District of Pennsylvania to enjoin an infringement of the same patent by the respondents. District Court expressed the opinion that the claims of the patent did not involve invention, but, in deference to the determination in the Sixth Circuit, dismissed the petitioners' bill on the ground of noninfringement. 284 F. 518. On appeal, the Circuit Court of Ap-sented is whether in combination *in the appeals for the Third Circuit held that the patent was invalid for want of invention. 291 F. 486. In view of the conflict of decision, the writ of certiorari was granted by this court (264 U. S. 578, 44 S. Ct. 404, 68 L. Ed. 858) to review the determination in the Third Circuit. Thomson Co. v. Ford Motor Co., 265 U. S. 445, 44 S. Ct. 533, 68 L. Ed. 1098. Both suits involved claims numbered 1, 2, 5, and 13 of the Callahan patent for "material transferring apparatus" designed for use in transferring concrete or other plastic materials from a suitable source of supply to working points desired on a building or other structure, in the course of construction. In principle, the device concerned calls into operation gravity, in conveying mobile substances from an elevated central point to varying working points in building operations. The claims made by the patentee, *179 paratus described, they constitute an invention. That the combination embodied in the described apparatus produces a useful result in the mechanical arts, and in modified form is widely used in building operations, is established. Our inquiry, therefore, must be addressed to the question whether the combination is novel, and whether it passes the line, sometimes tenuous and difficult of ascertainment, which separates mechanical skill from invention. The pursuit of this inquiry involves a consideration of the state of the art prior to Callahan's application, of which elaborate proof was made in the trial court. Because of an evident difference in the state of the proof in the two cases, the adjudications of this patent by the two Circuit Courts of Appeals are, we think, only apparently conflicting. It is clear from an examination of the two records, the earlier of which relate to a combination embraced in which is an exhibit in this suit, as well as the apparatus described, when paraphrased from the opinion of the court in the Sixth Cirand separated into their constituent ele-cuit, that that court did not have before it ments, comprise: (1) A tower; (2) a boom the detailed history of the practical developoscillatory or swinging horizontally, adjust-ment of the art, which was elaborately ably connected with the tower and adapted to proved in the present case and which conbe arranged at various points in its height; (3) a conduit carried by the boom, extending laterally from the tower, connected to it and adjustable vertically at varying heights in the tower; (4) a means for raising plastic material to the height desired in the tower; and (5) a means for receiving the plastic material from the raising means and conducting it to the conduit, both the raising means and the receiving means being adjustable vertically at varying heights in the tower. vinced both the District Judge and the Circuit Court of Appeals in the Third Circuit that the plaintiff's appliance did not embody an invention. The question thus presented is one of fact, but notwithstanding the agreement of the two courts below, on this aspect of the case, the difference in result reached by the two Circuit Courts of Appeals leads us to review the salient fea tures of the state of the art at about January, 1908, when, according to petitioners, CalThe apparatus described in the letters pat-lahan conceived the combination covered by ent is capable of use in conveying "wet" or the claims in his patent. See Thompson Co. "mush" concrete from the point where it is v. Ford Motor Co., supra, 447 (44 S. Ct. 533). prepared for use and distributing it to points [1, 2] It is a fact of which we may take where it is incorporated into a building in judicial notice (King v. Gallun, 109 U. S. 99, process of construction. When the mixed con- 3 S. Ct. 85, 27 L. Ed. 870) that the principle crete is in readiness to be placed in the forms of conveying and distributing a mobile subor molds in which it is allowed to "set" or har-stance by gravity has found exemplification den into an integral part of the structure, it *181 is elevated by the "raising means," usually a for centuries, in apparatus for lifting *water bucket, skip, or other suitable conveyor, to by power, in buckets or other convenient in moving and distributing grain and other substances of similar mobility, to all the requirements for the convenient handling and distribution of concrete by gravity in building operations. Without attempting to refer to all of the numerous instances of that adaptation it will be sufficient to indicate some of the more significant examples which mark its progress. As early as 1902-3 in the construction of the Ingalls Building in Cincinnati, an apparatus was used for elevating concrete to a hopper, from which it was discharged through movable metal chutes supported by horses, to varying required points on the floor area of a building in process of erection. This apparatus was described in the Engineering News of July 30, 1903. form of conveyor to a central reservoir from which its flow is induced by gravity, through suitable conduits to fixed points or through movable pipes or hose to varying selected points. Long prior to the Callahan application the principle had been applied to other substances capable of flow under the action of gravity, such as grain, coal, crushed stone, sand, and iron ore. The proof is abundant that by 1905 it was common practice in the erection and use of grain elevators to provide for raising the grain by endless belt or other conveyor to the top of the elevator; then to discharge it into a receptacle, called a garner or hopper, from which it flowed by gravity through pipes or spouts having a swivel connection with the hopper and swinging laterally, so that the lower end of the spout was movable in the arc of a circle. In 1906 a like apparatus was used in the These spouts were capable of extension, vari- construction of a reinforced concrete buildable at will by attaching additional sections ing in Norfolk, Va. Concrete was elevated in appropriately swiveled, to the end of the seca tower to a hopper, which was capable of betion of the spout connecting with the hopper. | ing elevated from story to story as the work The conduit or spout was supported, accord- progressed. The chute attached to the mouth ing to need and convenience, by an inclined cable attached at a suitable point above to the elevator tower, or by pivoted boom or gaff attached to the tower of the elevator and capable of being raised or lowered at its outer end. Apparatus of this type was commonly and successfully used for the unloading and storage of grain, and for loading it from storage on to ships or cars in varying positions and distances from the elevator tower; sectional or telescopic spouts, attached to the tower and to each other, being used to secure the delivery of the grain in the desired direction, and at desired distances, the spout being raised or lowered and given direction by the use of boom and tackle. On occasion there was duplication of the apparatus on board ship by the use of a supplemental hopper and supplemental conduit or chute supported and controlled by boom and tackle located on the ship. *182 *183 of the *hopper by swivel was capable of lateral movement, and supported by block and tackle attached to the top of the tower. There is proof of the use at San Francisco harbor in 1906, in concrete construction, of substantially similar apparatus placed on a scow. It involved the use of a chute moved into different positions by a supporting boom. In June, 1907, a similar apparatus was used in the construction of a steel-framed concrete building in St. Louis, although sketches, prepared at the time, called for a swinging boom for the support of a conduit, the boom was in practice dispensed with, as the steel skeleton of the building afforded a means of supporting the conduit. In the summer of 1908 an appliance of the same sort was used in the construction of a concrete building at St. Joseph, Mo.; the hopper being capable of elevation within the tower as required, and the movable chute being supported by cables radiating from the top of the tower. In 1906 the Great Lakes Dredge & Dock Company built at Gary, Ind., a concrete cofferdam, using a mixer placed on a car running on a trestle, with a wooden hopper beneath the mouth of the mixer, and a movable steel chute extending from the hopper into the cofferdam; the chute being secured by ropes or wires extending to the bracing. *Similar apparatus was in use for the moving of coal by gravity through chutes so constructed as to be moved either vertically or horizontally and supported by cable or boom. Before 1904-5 it was common practice for architects' specifications to require that concrete used in building operations be mixed "dry"; that is, of a consistency which would not admit of its ready flow by gravity. This practice was resisted by engineers and contractors, because it was cheaper and easier to In 1907, in connection with this same conuse "wet" concrete, which could be conven- struction, the apparatus was modified by the iently distributed through chutes and con- addition of a mast, to which was attached a duits. For reasons which need not now be swinging boom from which the movable steel inquired into in detail, the increasing use in chute was suspended. This was in successful earlier years of "wet" concrete in all types operation several months, and was constructof structural work had become the estab-ed by a man who had never seen concrete lished practice by 1905. Cotemporaneously handled in this manner, but who was familwith this increasing use, and, as the proofs iar with grain elevator practice. show, an active agency in inducing it, was the practical adaptation of the apparatus, used In July, 1908, five months prior to the filing of the Callahan application, an apparatus (46 S.Ct.) comprising the elements enumerated in the *184 claims in suit was used successfully in constructing a concrete building in St. Louis. The hopper was vertically adjustable, but the boom was mounted at the top of the tower, so that there was no necessity for change of its location vertically as the building progressed. The use of a swinging boom, attached to a building in process of erection or to a construction tower, which boom was in practice raised from time to time as convenience of operation required, was then a well-known device. In this state of the art, Callahan and several others, in the period 1909, applied for patents on combinations for the conveying of wet concrete through spouts or chutes; their applications resulting in interferences. Without more extensive examination of the record, this state of the proof leads us ir resistibly to the conclusion that the combination described in the Callahan application does not constitute an invention. The observations of common experience in the mechanical arts would lead one to expect that, once the feasibility of using "wet" concrete in building operations was established, the mechanical skill of those familiar with engineering and building problems would seek to make use of known methods and appliances for the convenient handling of this new building material. [3] To say nothing of the universally known methods and appliances for raising and distributing water, there were ready at hand widely used and generally understood appliances for the elevation and distribution of mobile substances, such as grain and coal, which involved, both in principle and in practical detail, all the elements described in the Callahan claims. Failure to make use of these obviously applicable methods and appliances in combination, suitable to the particular work in hand, in dealing with a new, plastic material capable of similar treatment, would, we think, have evidenced a want of ordinary mechanical skill and of *185 es with which they had to deal." Hollister v. Benedict Manufacturing Co., 113 U. S. 59, 72, 5 S. Ct. 717, 724 (28 L. Ed. 901). This progressive adaptation, much of which preceded and some of which was cotemporaneous with the Callahan adaptation, of wellknown devices to new but similar uses, "is but the display of the expected skill of the calling, and involves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility of manipulation which results from its habitual and intelligent practice." Hollister v. Benedict Manufacturing Co., supra, at page 73 (5 S. Ct. 724). No novel elements were used by Callahan in his device. We are unable to find that their use in combination in it was more than the application to them of mechanical skill in the course of a natural development and expansion of the art. The decree of the court below is Affirmed. (269 U. S. 90) LIPSHITZ & COHEN v. UNITED STATES. (Argued Oct. 21, 1925. Decided Nov. 16, 1925.) No. 68. Sales261 (1)-Government sale of obsolete material held not to warrant weight. Where government offered to sell obsolete material by schedule headed "List of Junk for Sale and Location of Same. The weights as shown below are approximate and must be accepted as correct by bidder," held, that the naming of quantities in the schedule could not be regarded as in the nature of a warranty, but merely as an estimate of the probable amounts in reference to which good faith only could be required of the party making it. In Error to the District Court of the United States for the Northern District of Georgia. Suit by Lipshitz & Cohen, a partnership composed of Berel S. Lipshitz and another, against the United States. Judgment for the United States, and plaintiff brings error. Affirmed. Mr. Henry A. Alexander, of Atlanta, Ga., for plaintiff in error. 91 *Mr. Justice McREYNOLDS delivered the opinion of the Court. familiarity with con*struction problems and Plaintiffs in error seek to recover profits which, it is alleged, would have been realized if the United States had complied with their agreement to deliver approximately 1,530,600 pounds of obsolete material. The cause was heard by the District Judge without a jury. He found the facts and upon them held that the contract had not been For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes An agent of the United States put out a schedule which stated that certain obsolete material, classed as cast iron, cast and forged steel, armor steel, brass, bronz and lead, was held for sale at six specified forts. It set out the weights of each class at each place, and was headed: "List of Junk for Sale and Location of Same. The weights as shown below are approximate and must be accepted as correct by the bidder." Plaintiffs in error made a written offer at the foot of the schedule sheet to pay $1,055, "for all the above described material, as is where is, for which we are enclosing you cashier's check for 20% of the amount-$211 -with our option to remove material within six months from acceptance of this bid. This was accepted May 24, 1922. mate of the probable amounts in reference to It is not necessary for us to consider The judgment of the court below must be (269 U. S. 71) HICKS, Alien Property Custodian, et al. v. GUINNESS et al. v. HICKS, Alien Property "At the time the offer was made and accept- (Argued Oct. 22 and 23, 1925. Decided Nov. 16, ed the plaintiff did not inspect the material for sale at any of the fortifications, and had no knowledge of such material other than that given by the contract. It was later found in junk piles at the various forts." In the following July the purchasers began to remove the material and found nearly all items short. Aggregated these shortages amounted to approximately one-half of the total weight stated in the original schedule, but there is nothing to indicate bad faith. They complained, but made no effort to repu diate or annul the contract. Supporting his judgment in favor of the United States the District Judge said: *92 1. Payment 1925.) Nos. 80, 81. 12(5)-Recovery for breach of contract to pay in foreign money an account An indebtedness by a German subject to an time of recovery. 2. Interest 55-Interest held recoverable "Since the government is not in the business of buying and selling, and its agents are authorized only to offer for sale such material as In suit by American citizen against Alien has been condemned as obsolete or useless, tak- Property Custodian, authorized by Trading with ing the language of this offer and acceptance, I the Enemy Act Oct. 6, 1917, § 9, as amended by am of opinion that the contract must be con- Act June 5, 1920 (Comp. St. Ann. Supp. 1923, strued as one offering to sell an approximate § 31151⁄2e), to recover on account stated with quantity of such cast iron, brass [cast and forg-German subject before declaration of war, held, ed steel, bronz, armor steel] or lead, and as one offering to sell all of the materials of these descriptions which were on hand at the various points named, the intention being not to make a sale by the pound or ton, but to make an entire sale of specific lots of obsolete material, whether more or less than the weight, and to include all thereof. * * * I am satisfied that they [plaintiffs] cannot claim that this contract, worded as it was, has been broken because it turned out that there was less, even greatly less, of some of the materials described as on hand than the description would have led the purchaser to suppose. It is not made to appear that the United States failed or refused to deliver any of the material that was actually at the forts named at the time the contract was made." We approve this construction of the agreement. Applicable principles of law were announced by Mr. Justice Bradley, speaking for the court in Brawley v. United States, 96 U. S. 168, 171, 24 L. Ed. 622. The negotiations had reference to specific lots. The naming of quantities cannot be regarded as in the nature of a warranty, but merely as an esti the cause of action having accrued before war On Writs of Certiorari to the United States Circuit Court of Appeals for the Second Circuit. Suits by Benjamin Guinness and others against Thomas W. Miller (later Frederick C. Hicks), Alien Property Custodian, and others. Decrees for complainants in each case (291 F. 768, 769) were, on appeals by both parties, affirmed by the Circuit Court of Appeals (299 F. 538), and both parties bring certiorari. Decree against defendants affirmed, and decree, so far as adverse to plaintiffs, reversed. Mr. Alexander B. Siegel, of New York City, Mr. Dean Hill Stanley, of Washington, D. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |