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office and depot of said Hot Springs Railroad, the said business and ticket office and depot being then and there the business office of the authorized agent of said Hot Springs Railroad, at said Hot Spring, during business hours, and a reasonable time before the time of departure of its train for St. Louis that the plaintiff desired to take and did take," and offered to identify himself as the original purchaser of the ticket to the satisfaction of said agent, for the purpose of entitling himself to return thereon to St. Louis, and of permitting the ticket to be officially signed, dated in ink, and duly stamped by said agent; but the defendant and the Hot Springs Railroad Company failed to have said agent there at any time between the time when the plaintiff so presented himself and his ticket and the time of departure of the train, "whereby," the petition averred, "said defendant and its agent, and the agent of said Hot Springs Railroad at Hot Springs, Ark., failed and refuse, without any just cause or excuse, to identify the plaintiff as the original purchaser of said ticket, or to officially sign, date in ink, and stamp said ticket." The plaintiff thereupon boarded the train of the Hot Springs Railroad at Hot Springs, and was carried thereby to Malvern, where, on the same day, he boarded a regular passenger train of the defendant for St. Louis, and, upon the conductor thereof demanding his fare, presented his ticket, informed him of his presentation of it at the office at Hot Springs, of his offer there to identify himself, and of the absence of the agent, as aforesaid, and offered to sign his name, and otherwise identify himself to the conductor, and demanded to be carried to St. Louis by virtue of said ticket; but the conductor refused, and put him off the train, and left him at a way station, where he was obliged to remain, without fire or other protection against the cold, until he took the midnight train of the defendant for St. Louis, first paying fare; "by reason of each and all of which wrongful and unlawful acts aforesaid of defendant, its agents and employes, the plaintiff says he has been damaged in the sum of ten thousand dollars, for which he asks judgment.' The circuit court sustained a demurrer to this petition, and gave judgment for the defendant. Its opinion delivered upon sustaining this demurrer, and sent up with the record, is reported in 23 Fed. Rep. 326; and its opinion at a former stage of the case, in 5 McCrary, 462, and in 17 Fed. Rep. 880.

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Clinton Rowell, for plaintiff in error. John F. Dillon and Winslow S. Pierce, Jr., for defendant in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

The right of this plaintiff to be carried upon the defendant's train, without paying additional fare, does not depend upon his having been received as an ordinary passenger, or upon any representations made by a ticket seller, con-ductor, or other officer of the company as to his right to use a ticket, but wholly upon the construction and effect of the written contract, signed by him, upon the face of the ticket (of the kind called "tourist's" or "round-trip" tickets) sold him by the defendant for a passage to Hot Springs, and back, by which, in consideration of a reduced rate of fare, he agreed to the following terms: By the fifth condition the ticket "is not good for return passage unless the holder identifies himself as the original purchaser to the satisfaction of the authorized agent of the Hot Springs Railroad at Hot Springs, Ark., within eighty-five days from date of sale; and, when officially signed and dated in ink and duly stamped by said agent, this ticket shall then be good only five days from such date." The clear meaning of this condition is that the ticket shall not be good for a return passage at all, unless, within 85 days from its original date, the holder not only identifies himself as the original purchaser to the satisfaction of the agent named, but that agent signs, dates, and stamps the ticket; and that, upon such identification and stamping, the ticket shall be good for five days from the new date. The

sixth condition, by which the ticket is to be void if the plaintiff does not sign his name, and otherwise identify himself, whenever called upon so to do by any conductor or agent of either of the lines over which he may pass, is evidently intended as an additional precaution against a transfer of the ticket either in going or in returning, and not as an alternative or substitute for the previous condition to the validity of the ticket for a return trip. The twelfth condition states that the plaintiff understands and expressly agrees that no agent or employe of any of the lines has any power to alter, modify, or waive any of the conditions of the contract. By the express contract between the parties, therefore, the plaintiff had no right to a return passage under the ticket, unless it bore the stamp of the agent at Hot Springs. Such a stamp was made by the contract a condition precedent to the right to a return passage, and no agent or employe of the defendant was authorized to waive that condition. The plaintiff contends that, as there was no agent at the office at Hot Springs, to whose satisfaction he could identify himself, and by whom he could have his ticket stamped, when he presented himself with his ticket at that office, within a reasonable time before he took the return train, he had the right to be carried from Hot Springs to St. Louis under his ticket without having it stamped, and may therefore maintain this action against the defendant for the act of its conductor in expelling him from the connecting train upon the defendant's road. If this defendant had been the party responsible for not having an agent at Hot Springs, the question thus presented would have been of some difficulty, although we are not prepared to hold that, even under such circumstances, the plaintiff's remedy would not be limited to an action for the breach of the implied contract to have an agent here, and to the expense which he thereby incurred. But this case does not require the expression of any opinion upon that question. By the first condition of the contract contained in the plaintiff's ticket, the defendant is not responsible beyond its own line. Consequently it was not responsible to the plaintiff for failing to have an agent at the further end of the Hot Springs Railroad. The agent who was to identify the passenger, and stamp his ticket there, was the agent of the Hot Springs Railroad Company, and is so described in the ticket, as well as in the petition. If there was any duty to have an agent at Hot Springs, it was the duty of that company, and not of the defendant. The demurrer admits only the facts alleged, and does not admit the conclusion of law, inserted in the petition, that by reason of the facts previously set forth, and which do not support the conclusion, the defendant and its agent failed and refused, without just cause or excuse, to identify the plaintiff as the original purchaser of the ticket, or to sign, date, and stamp it. Hitchcock v. Buchanan, 105 U. S. 416. The omission to have an agent at Hot Springs not being a breach of contract or of duty on the part of this defendant, the case is relieved of all difficulty. The conductor of the defendant's train, upon the plaintiff's presenting a ticket bearing no stamp of the agent at Hot Springs, had no authority to waive any condition of the contract, to dispense with the want of such stamp, to inquire into the previous circumstances, or to permit him to travel on the train. It would be inconsistent alike with the express terms of the contract of the parties, and with the proper performance of the duties of the conductor, in examining the tickets of other passengers, and in conducting his train with due regard to speed and safety, that he should undertake to determine, from oral statements of the passenger or other evidence, facts alleged to have taken place before the beginning of the return trip, and as to which the contract on the face of the ticket made the stamp of the agent of the Hot Springs Railroad Company at Hot Springs the only and conclusive proof.

The necessary conclusion is that the plaintiff cannot maintain this action against the defendant for the act of its conductor in putting him off the train. Townsend v. Railroad Co., 56 N. Y. 295; Shelton v. Railway Co.,

29 Ohio St. 214; Frederick v. Railroad Co., 37 Mich. 342; Bradshaw v. Railroad Co., 135 Mass. 407; Murdock v. Railroad Co., 137 Mass. 293, 299; Railroad Co. v. Fleming, 14 Lea, 128. Judgment affirmed.

ST. PAUL PLOW-WORKS v. STARLING.1

(May 14, 1888.)

COURTS-UNITED STATES SUPREME COURT-JURISDICTIONAL AMOUNT-PATENTS. In an action in a circuit court upon a contract of license to make a patented article, where defendant, admitting the contract, raises the issues, which the court determines, of infringement and the validity of plaintiff's patent, an appeal will lie, regardless of the amount in controversy, under Rev. St. U.S. § 699, giving appellate jurisdiction to the supreme court "in any case touching patent-rights."

In Error to the Circuit Court of the United States for the District of Minnesota.

Chas. S. Careins, for motion. John B. Sanborn and W. H. Sanborn, in opposition.

GRAY, J. The original action was brought in the circuit court of the United States for the district of Minnesota by a citizen of Nebraska against a corporation of Minnesota, for breach of an agreement in writing, dated December 17, 1877, by which the plaintiff granted to the defendant the right to make and sell within a defined territory a certain kind of plow, under letters patent granted August 18, 1874, to the plaintiff for an improvement in plows, (of which he alleged in his complaint that he was the first and original inventor,) and the defendant agreed to make such plows in a good and workman-like manner, and to advertise and sell them at a price not exceeding the price of :similar implements sold by other manufacturers, and to render accounts semiannually, and pay the plaintiff a royalty of $2.50 for each plow sold. The defendant, in its answer, admitted the agreement sued on, but denied any breach; denied that the plaintiff was the original and first inventor of any improvement in plows, and averred that his alleged improvement had been described in six earlier patents specified; admitted that the defendant had made and sold plows according to the method described in letters patent granted March 9, 1880, to one Berthiaume, and averred that those plows were constructed upon an entirely different principle from the plaintiff's. The plaintiff filed a general replication, denying the allegations of the answer. A jury trial having been duly waived in writing, the case was tried by the court, which, upon facts set forth in detail, found that the defendant had made 960 plows under the Berthiaume patent, and 350 other plows; that all those plows infringed the plaintiff's patent, and that the plaintiff's invention was not anticipated by either of the six other patents set up in the answer; and concluded. that the plaintiff was entitled to a royalty of $2.50 on each plow sold by the defendant, amounting to $3,275; overruled a motion for a new trial; and gave judgment for the plaintiff accordingly. 29 Fed. Rep. 790, 32 Fed. Rep. 290. The defendant sued out this writ of error, which the original plaintiff now moves to dismiss for want of jurisdiction, because the judgment below was for less than $5,000. The decision of this motion depends upon section 699 of the Revised Statutes, by which a writ of error or appeal may be allowed from any final judgment or decree of the circuit court, without regard to the sum or value in dispute, "in any case touching patent-rights." This section substantially re-enacts the corresponding provision of the patent act of 1870, in which the words were "in any action, suit, controversy, or case, at law or in equity, touching patent-rights." Act of July 8, 1870, c. 230, § 56, (16 St. 207.) The language applied to this subject in the patent act of 1836, under

1 See 29 Fed Rep. 790; 32 Fed. Rep. 290.

which the cases of Wilson v. Sandford, 10 How. 99, and Brown v. Shannon, 20 How. 55, were decided, was that used in that act in defining the jurisdiction of the circuit court in patent cases, namely, "actions, suits, controversies and cases, arising under any law of the United States, granting or confirming to inventors the exclusive rights to their inventions or discoveries." Act of July 4, 1836, c. 357, § 17, (5 St. 124.) Similar words were used in the patent act of 1861 in defining the jurisdiction of this court. Act of February 18, 1861, c. 37, (12 St. 130.) But in the act of 1870, as in the Revised Statutes, congress, while using similar language in defining the jurisdiction of the circuit court, substituted (it must be supposed purposely) the new phrase "touching patent-rights," in defining the jurisdiction of this court. The present case was an action upon a contract by which the plaintiff licensed the defendant to make and sell a patented article, and not a suit for infringing the plaintiff's patent. But the questions whether that patent was valid, and whether it had been infringed, were put in issue by the pleadings, and decided by the circuit court. Whether, within the meaning of other statutes, and in the light of previous decisions, this case should be considered as "arising under" the patent laws of the United States, is a question not before us. See Manufacturing Co. v. Hyatt, 125 U.S. 46, ante, 756, and cases there cited. It is sufficient for the decision of this motion that we have no doubt that a case in which the validity and the infringement of a patent are controverted is a "case touching patent-rights," and therefore within the appellate jurisdiction of this court, under section 699 of the Revised Statutes, without regard to the sum or value in dispute. Motion to dismiss for want of jurisdiction denied.

ROBERTSON v. DOWNING et al.
(May 14, 1888.)

CUSTOMS DUTIES-CONSTRUCTION OF LAWS-VALUATION.

Rev. St. U. S. § 2907, and act June 22, 1874, § 14, (18 St. 189,) providing that, in determining the dutiable value of imports, there shall be added to the invoice price the cost of transportation from the place of growth, production, or manufacture to the place of shipment, apply only to cases where the place of growth, production, or manufacture is in the same country as the place of shipment, and not to cases where the import comes from one country, and is transported into, and shipped to the United States, from another country.

In Error to the Cuit Court of the United States for the Southern District of New York.

Sol. Gen. Jenks, for plaintiff in error.

FIELD, J. The plaintiffs below, the defendants in error here, in March, 1882, imported into the United States at the port of New York 5,179 packages of steel rods from Mulheim, in Germany. They were shipped at the port of Antwerp, in Belgium, to which place they were brought by rail from Mulheim, where they were made. Antwerp is distant from the frontier of Germany between 40 and 50 miles, and from Mulheim 200 miles. The appraisers added to the invoice price of the articles at Mulheim 11 marks per ton to make the dutiable value of the articles, and 4 marks per ton for the charges incurred in their transportation to Antwerp. Upon their appraised value, including these charges, the defendant, who was at the time collector of the port of New York, on the 5th of May, 1882, ascertained and liquidated the duties. Subsequently, a reliquidation was made, by which 2 per cent. was deducted from the 11 marks. This reliquidation was completed on the 24th of May, 1882. Two days afterwards the plaintiffs made a formal protest against including in the dutiable value of the goods any sum for charges or otherwise in addition to the value stated in the invoice; but adding that they should pay the amount exacted, in order to get the goods, and then claim to have it refunded. On the trial the plaintiffs put in evidence letters from the

acting secretary of the treasury, against the objection of the government, to show that an appeal was taken to the secretary from the decision of the collector, and that it was affirmed. The counsel of the government excepted to their admission. The following are the letters:

"TREASURY DEPARTMENT, OFFICE OF THE SECRETARY, WASHINGTON, D. C., August 14, 1882. Collector of Customs, New York-SIR: The department is in receipt of your letter of the 27th ultimo, submitting the appeal (1,996, 2,050 H) of Messrs. Downing, Sheldon & Co., from your assessment of duty on additions made by the appraiser to the invoice and entered value of certain steel-wire rods imported by them per Hermann, March 9, 1882. The appraiser reports that an addition was made by him for charges under the department's decision of July 20, 1880, (S. S. H 4,617,) for the reason that the invoice did not state that the price of the merchandise was free on board,' and that an additition for value was also made by him to make the usual market value of the merchandise. Your assessment of duty thereon is hereby affirmed. Very respectfully, H. F. FRENCH, Acting Secretary."

"TREASURY DEPARTMENT, OFFICE OF SECRETARY, WASHINGTON, D. C., August 12, 1882. Messrs. Downing, Sheldon & Co., (care of Kausche & Downing, P. O. box 3550, N. Y. :) GENTLEMEN: This department is in receipt of your appeal, (No. 2,050 H,) dated May 25, 1882, from the decision of the collector of the port of New York, assessing duty on certain merchandise, imported per Hermann, March 9, 1882. In reply, you are informed that the case has been disposed of by instructions this day addressed to the collector of customs at the port mentioned, to whom you are referred for particulars. Respectfully, H. F. FRENCH, Acting Secretary."

The decision of the secretary was made August 12, 1882. The plaintiffs paid the amount of duties exacted, and in October following brought the present action. The jury found in their favor for $130.96. The court, by consent of parties, reduced this sum to $47.64, and judgment for that amount, besides costs, was entered. This reduction was made, as we infer from the record, so as to cover only the increased duties exacted by reason of the addition for charges on transportation to Antwerp.

The question of importance presented is whether, under the statute charges for transportation of goods imported from one country, which on their passage may pass through another country, should be added to the invoice value of the articles to make their dutiable value under section 2907 of the Revised Statutes, and section 14 of the act of June 22, 1874. Section 2907 provides that, "in determining the dutiable value of merchandise, there shall be added to the cost, or to the actual wholesale price or general market value at the time of exportation in the principal markets of the country from whence the same has been imported into the United States, the cost of transportation, shipment, and transhipment, with all the expenses included, from the place of growth, production, or manufacture, whether by land or water, to the vessel in which shipment is made to the United States; the value of the sack, box, or covering of any kind in which such merchandise is contained; commission at the usual rates, but in no case less than two and a half per centum; and brokerage, export duty, and all other actual or usual charges for putting up, preparing, and packing for transportation or shipment.' Section 14 of the act of June 22, 1874, (18 St. 189,) provides "that wherever any statute requires that, to the cost or market value of any goods, wares, and merchandise imported into the United States, there shall be added to the invoice thereof, or, upon the entry of such goods, wares, and merchandise, charges for inland transportation, commissions, port duties, expenses of shipment, export duties, cost of packages, boxes, or other articles containing such goods, wares, and merchandise, or any other incidental expenses attending the packing, shipping, or exportation thereof from the country or place where purchased or manufactured, the omission, without intent thereby to defraud the revenue, v.8s.c.-84

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