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of the first claim as covers perforations or openings in the sides of a suspended fire-pot extending throughout the entire depth of sides, and limiting such perforations or openings to substantially the lower half of the fire-pot, the material or substantial part of the thing patented in and by said claim not hereby disclaimed being as follows: A fire-pot suspended from its upper edge with substantially the upper half of its sides made solid, and substantially the lower half of its sides containing perforations or openings."
Viewed as a disclaimer, this instrument naturally excites attention. A disclaimer is usually and properly employed for the surrender of a separate claim in a patent, or some other distinct and separable matter, which can be exscinded without mutilating or changing what is left standing. Perhaps it may be used to limit a claim to a particular class of objects, or even to change the form of a claim which is too broad in its terms; but certainly it cannot be used to change the character of the invention. And if it requires an amended specification or supplemental description to make an altered claim intelligible or relevant, while it may possibly present a case for a surrender and reissue, it is clearly not adapted to a disclaimer. A man cannot, by merely filing a paper drawn up by his solicitor, make to himself a new patent, or one for à different invention from that which he has described in his specification. That is what has been attempted in this case. There is no word or hint in the patent that the invention claimed was a fire-pot with sides grated only half way, or part of the way, from the bottom towards the top, or that such partially grated sides have any advantage over those grated all the way to the top. The first claim, as modified by the disclaimer, has nothing in the specification to stand upon; nothing to explain it; nothing to furnish a reason for it.
It is contended that the drawings annexed to the patent may be referred to for the purpose of defining the invention, and showing what it really was. But the drawings cannot be used, even on an application for a reissue, much less on a disclaimer, to change the patent, and make it embrace a different invention from that described in the specification. This is fully and clearly shown in the recent case of Parker & Whipple Co. v. Clock Co., ante, 38.
The counsel for the appellants suggests that there is a difference between sections 4917 and 4922, Rev. St., (corresponding, respectively, to sections 7 and 9 of the act of 1837,) and that the disclaimer filed in this case satisfies the conditions of the former of these sections. He says: "Evidently there are two sections under which a disclaimer can be made in this country: First, Under section 4917, where the claim is too broad; that is to say, in the language of the section, where the patentee has claimed more than that of which he was the original and first inventor or discoverer.' Second. Under section 4922, where a patentee has in his specification claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor or discoverer.' And it goes on to state that he may maintain a suit at law or in equity for the infringement of any part thereof which was bona fide his own, if it is a material and substantial part of the thing patented, and definitely distinguishable from the parts claimed without right.'" We think that counsel is mistaken in supposing that these sections have reference to different sets of circumstances as grounds for a disclaimer. They both relate to the same condition of things in that regard; namely, to the case in which a patentee, through inadvertence, accident, or mistake, and without any fraudulent intent, has included and claimed more in his patent than he was entitled to, and where the part which is bona fide his own is clearly distinguishable from the part claimed without right. In every such case he is authorized by section 4917 to file a disclaimer of the part to which he is not entitled; and that is the only section which gives him this right. The object of the other section (4922) is to legalize and uphold suits brought on such pat
ents as are mentioned in section 4917, to the extent that the patentees are entitled to claim the inventions therein patented; but no costs are allowed to the plaintiffs in such suits unless the proper disclaimer has been entered at the patent-office before the commencement thereof; and no patentee is entitled to the benefits of this section if he has unreasonably neglected or delayed to enter a disclaimer. We do not see how it is possible to misunderstand the two sections when read together, as it is necessary to read them. One section authorizes a disclaimer to be filed in certain cases; the other enables patentees to maintain suits in those cases, provided a disclaimer is filed without unreasonable delay. They are parts of one law, having one general purpose, and that purpose is to obviate the inconvenience and hardship of the common law, which made a patent wholly void if any part of the invention was wrongfully claimed by the patentee, and which made such a defect in a patent an effectual bar to a suit brought upon it. There is no such difference in the phraseology of the two sections as to make them apply to different classes of cases. They refer to the same class, and, being read together, throw mutual light on each other; and, viewed in that mutual light, we think it clear that there is no authority for amending a patent by means of a disclaimer in the manner in which the appellants have attempted to amend their patent in the present
The decree of the circuit court is affirmed.
NORTH PENNSYLVANIA R. Co. v. COMMERCIAL NAT. BANK OF CHICAGO. (December, 1887.)
1. CARRIERS-MISDELIVERY OF FREIGHT-PRESENTATION OF BILL OF LADING.
Action was brought against a railroad company by the assignee of freight receipts, to recover for the misdelivery of live-stock to parties whom defendants had been directed to notify of the arrival of the property, but who presented no bill of lading or order of the consignee. It was not shown on the trial that plaintiff or the shipper had any knowledge that it had been the common practice of defendant to so deliver former shipments between the same parties. Held, that defendant was liable for the value of the stock.
2. TRIAL-VERDICT-DIRECTION OF, BY Court.
It is proper for the court to direct the jury as to the verdict it shall bring in, when it would be its duty to set aside a different one, if rendered.
In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.
This was an action brought by the Commercial National Bank of Chicago against the North Pennsylvania Railroad Company to recover the value of 404 head of cattle received by it in November, 1877, to transport to Philadelphia, and not delivered there to the plaintiff, the assignee of the shipper, or to its order. The facts out of which it arose are briefly as follows:
In 1877 one Paris Myrick was engaged at Chicago in the business of buying cattle and forwarding them by railway to Philadelphia. On the seventh of November of that year he bought 202 head of cattle, weighing 240,000 pounds, and on the same day delivered them to the Michigan Central Railroad Company at Chicago, to be transported to Philadelphia. That company is one of several railway carriers forming a continuous line from Chicago to Philadelphia. On the delivery of the cattle, Myrick took from the company the following receipt:
"MICHIGAN CENTRAL RAILROAD COMPANY, "CHICAGO STATION, November 7, 1877. "Received from Paris Myrick in apparent good order. Consigned to order
"Marked and described as above, (contents and value otherwise unknown,) for transportation by the Michigan Central Railroad Company to the warehouse at **
"Notice. See rules of transportation on the back hereof. "Use separate receipts for each consignment.
"WM. GROGAN, Agent."
On the margin of the receipt was the following notice:
"This company will not hold itself responsible for the accuracy of these weights as between buyer and seller; the approximate weight having been ascertained by track scales, which is sufficiently accurate for freighting purposes, but may not be strictly correct as between buyer and seller. "This receipt can be exchanged for a through bill of lading."
On the same day Myrick drew and delivered to the Commercial National Bank of Chicago a draft, of which the following is a copy:
CHICAGO, November 7, 1877. "Pay to the order of George L. Otis, cashier, twelve thousand two hundred and eighty-seven 57-100 dollars, value received, and charge the same to account of PARIS MYRICK.
"To J. & W. Blaker, Newtown, Bucks Co., Pa."
As security for the payment of the draft, Myrick indorsed the receipt obtained from the railroad company, and delivered it with the draft to the bank, which thereupon gave him the money.
On the fourteenth of November, Myrick purchased 202 more head of cattle, weighing 260,000 pounds, and on that day delivered them to the Michigan Central Railroad Company at Chicago, to be transported to Philadelphia, and received from the company a similar receipt to the one taken on the first shipment. On the same day he drew another draft, and delivered it to the Commercial National Bank, of which the following is a copy:
CHICAGO, November 14, 1877. "Pay to the order of Geo. L. Otis, cashier, twelve thousand four hundred & forty-eight 12-100 dollars, value received, and charge same to account of "PARIS MYRICK.
"To J. & W. Blaker, Newtown, Bucks Co., Pa."
For the payment of this draft, Myrick indorsed the receipt obtained from the railroad company, and delivered it, with the draft, to the bank, which thereupon gave him the money. The cattle of both shipments were conveyed on the road of the Michigan Central Railroad Company to Detroit, and thence over the roads of other connecting companies to Philadelphia. The last two carriers were the Lehigh Valley Railroad Company and the North Pennsylvania Railroad Company, whose lines extended between Waverly, Tioga county, New York, and Philadelphia. The cattle of both shipments were carried over the roads of these companies from Waverly on their joint way-bills. The 13 covering the first shipment were dated November 10, 1877, and 12 of them were alike except in the number of cattle carried under them. The following is a copy of one of them:
Way-Bill of Merchandise Transported by L. V. R. R. and N. P. R. R., from Waverly to Philada..
In the thirteenth joint way-bill of the first shipment the words "Notify J. & W. Blaker" were omitted. The joint way-bills covering the second shipment were dated November 17, 1877, but, like the thirteenth joint way-bill of the first shipment, they did not contain the words "Notify J. & W. Blaker" after the name of the consignee or owner. In other respects, except in the number of cattle carried, they were similar to those covering the first shipment.
The cattle of both shipments arrived in Philadelphia,-the first on November 11th, and the second on November 18th,-and were immediately delivered by the Pennsylvania Railroad Company to the North Philadelphia Drove-Yard Company, which was formed for the business of receiving, taking care of, and delivering live-stock to their owners or consignees. This company notified the Blakers of the arrival of the cattle, and delivered them to those parties. The Blakers were dealers in cattle, and had particular pens in the yard assigned to them. The cattle of both shipments were placed in these pens by the agent of the railroad company at the drove-yard station, and he then wrote on the thirteenth joint way-bill of the first shipment, and on all the joint waybills of the last shipment from Waverly, under the name of the consignee or owner, these words: "Ac. J. & W. Blaker." On the day after they arrived and were placed in these pens, in each case, the Blakers sold the cattle and appropriated the proceeds. The cattle of both shipments were delivered by the railroad company to the drove-yard company without any direction to hold the cattle subject to the order of the consignee, who was also the owner and shipper, and the cattle were delivered to the Blakers without such order. It does not appear that any demand was made by the railroad company, or by the drove-yard company, for anything to show the right of those parties to receive the cattle. The bank transmitted the drafts for collection, with the carriers' receipts attached, to its correspondent at Newtown, Pennsylvania. The Blakers were notified of the receipt of the drafts, but failed to accept them, and they were protested for non-acceptance November 27, 1877. They disposed of the cattle before the arrival of the drafts and carriers' receipts, and soon afterwards failed, and the drafts were not paid.
It appeared in evidence that Myrick had previously made numerous shipments of cattle from Chicago to Philadelphia, and taken similar receipts from the Michigan Central Railroad Company; that these cattle had been received by the North Pennsylvania Railroad Company, and delivered by it at Philadelphia to the drove-yard company; that it had been the practice of that railroad company to deliver the cattle to the drove-yard company, and of the latter company to deliver them to the Blakers without the production of the carrier's receipt or any bill of lading, or any order of the shipper for their delivery. It also appeared that there was no knowledge on the part of the Com
mercial Bank at Chicago, or of its correspondent at Newtown, of any such practice; that drafts of Myrick, cashed by that bank, had accompanied previous shipments of cattle; that such drafts, upon notice to the Blakers of their receipt, had always been promptly paid, and that the bills of lading (the carriers' receipts in question) were not surrendered to the Blakers until such payment.
Upon these facts the Commercial National Bank originally recovered a verdict and judgment against the Michigan Central Railroad Company; the court below holding that the receipts of that company constituted contracts to carry the cattle from Chicago to Philadelphia, and deliver them there to the shipper or to his order; but the judgment was reversed by this court on the ground that a through contract for their carriage was not established by those receipts, and that the question of whether or not there was such a contract for their carriage should have been submitted to the jury to determine from the circumstances of the case. Myrick v. Railroad Co., 107 U. S. 102, 1 Sup. Ct. Rep. 425. The present action was subsequently brought against the North Pennsylvania Railroad Company, the last of the series of railroad carriers in the line from Chicago to Philadelphia, for the non-delivery at Philadelphia of the cattle of both shipments to the order of the shipper, as designated in the receipts given to him at Chicago, and in the way-bills given at Waverly; that is, to his assignee, the plaintiff herein. Upon the evidence in the case, which developed the facts substantially as stated, the court directed a verdict for the plaintiff for the amount of its claim. A verdict was accordingly rendered for $34,271.41, which was the amount of the drafts, with interest from their dates. The cattle sold in November, 1877, for a sum greater than the amount of both drafts. Judgment being entered on the verdict, the case was brought to this court for review.
Geo. F. Edmunds and Wm. R. Wistar, for plaintiff in error. J. A. Sleeper and Wayne Mac Veagh, for defendant in error.
Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.
There is no doubt of the power of the circuit court to direct a verdict for the plaintiff upon the evidence presented in a cause, where it is clear that he is entitled to recover, and no matter affecting his claim is left in doubt to be determined by the jury. Such a direction is eminently proper, when it would be the duty of the court to set aside a different verdict, if one were rendered. It would be an idle proceeding to submit the evidence to the jury, when they could justly find only in one way. Anderson Co. Com'rs v. Beal, 113 U. S. 227, 241, 5 Sup. Ct. Rep. 433.
Upon the evidence presented, and there was no conflict in it, the law was with the plaintiff. The duty of a common carrier is not merely to carry safely the goods intrusted to him, but also to deliver them to the party designated by the terms of the shipment, or to his order, at the place of destination. There are no conditions which would release him from this duty, except such as would also release him from the safe carriage of the goods. The undertaking of the carrier to transport goods necessarily includes the duty of delivering them. A railroad company, it is true, is not a carrier of live-stock with the same responsibilities which attend it as a carrier of goods. The nature of the property, the inherent difficulties of its safe transportation, and the necessity of furnishing to the animals food and water, light and air, and protecting them from injuring each other, impose duties in many respects widely different from those devolving upon a mere carrier of goods. The most scrupulous care in the performance of his duties will not always secure the carrier from loss. But notwithstanding this difference in duties and responsibilities, the railroad company, when it undertakes generally to carry such freight, becomes subject, under similar conditions, to the same obligations, so far as the