call respondent's attention to the change until after he had delivered the coal, and the respondent did not discover the change until the delivery had been completed. There was marked carelessness upon the part of some employé of the respondent, as well as of some employé of the Niver Coal Company, and we are unable to doubt that the libelant availed himself of the circumstance to put forward a claim which he knew was without merit.

The decree is affirmed, with costs.

'ENTERPRISE MFG. CO. v. LANDERS, FRARY & CLARK.

(Circuit Court of Appeals, Second Circuit. June 2, 1904.)

No. 168.

1. UNLAWFUL COMPETITION-INJUNCTION.

Where defendants admitted that they were manufacturing and selling mills in competition with complainant's mills, and had used parts of complainant's mills as patterns wherever it was convenient or profitable to do so, and that they were now making and selling mills which in effectiveness and attractiveness were the same goods as those sold by complainant, such competition was unlawful, entitling complainant to an injunction.

2. SAME-DECREE.

Where in a suit to restrain defendants from selling certain grinding mills, on the ground of unlawful competition, the answer averred that, in addition to the manufacture and sale of similar mills by defendants, defendants also intended to make other mills which will be substantially the same goods as other classes of mills made and sold by complainant, a decree enjoining defendants from selling "any grinding mills having the characteristic shape, design, color, and ornamentation of the grinding mills sold by complainant, and referred to by the numbers 0, 1, 2," etc. (giving 15 numbers), was justified, though there was no proof of any sale of mills corresponding in size to such numbers.

Appeal from the Circuit Court of the United States for the District of Connecticut.

For opinion below, see 124 Fed. 923.

This cause comes here upon appeal from a decree of the Circuit Court, District of Connecticut, restraining defendants from unfair competition in trade, and for an accounting. Complainant and its predecessors have for 30 years been engaged in the manufacture and sale of a line of mills for grinding coffee, drugs, etc., of varying sizes; adopting therefor a certain characteristic shape, design, color, and ornamentation, which have become well known to purchasers, and associated in their minds with the goods of complainant. In 1898, or thereabouts, the defendants began to make and offer for sale similar mills, and, upon discovery thereof, this suit was brought.

E. D. Robbins, for appellants.

Charles Howson, for appellee.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

¶ 1. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.

See Trade-Marks and Trade-Names, vol. 46, Cent. Dig. § 79.

LACOMBE, Circuit Judge. This is a most aggravated case of unfair trading. Usually in these cases the defendants so dress their goods as to present a number of points of difference, on which they rely when charged with intent to deceive; insisting that, although there may be resemblances, the differences are so great as to preclude any idea that they had sought to produce confusion. Here, on the contrary, they have not only conformed their goods to complainant's in size and general shape, which was to be expected, but also in all minor details of structure-every line and curve being reproduced, and superfluous metal put into the driving wheels to produce a strikingly characteristic effect-while the goods are so dressed with combinations of color, with decorations reproduced or closely simulated, with style of lettering and details of ornamentation, that, except for the fact that on the one mill is found the complainant's name, and on the other the defendants', it would be very difficult to tell them apart. It is elementary law that, when the simulation of well-known and distinctive features is so close, the court will assume that defendants intended the result they have accomplished, and will find an intent to appropriate the trade of their competitor, even though in their instructions to their own selling agents they may caution against oral misrepresentations as to the manufacture of the goods. There is evidence to show that purchasers have been deceived as to the identity of these mills, but, in the case of a Chinese copy, such as defendants offer to the public, such proof is hardly needed.

It is to defendants' credit that, when confronted with the charge of copying, they have not denied it, nor asserted that they were trying to differentiate their own products. On the contrary, they admit that they "concluded they could profitably manufacture this same line of hardware and sell it in competition with the Enterprise Company," and accordingly commenced the manufacture thereof, "using parts of mills sold by the Enterprise Company as patterns wherever it was convenient or profitable to do so," with the result that they are "now making and selling coffee mills which in all substantial respects, and especially in their effectiveness in use and attractiveness, are the same goods as those made and sold by the Enterprise Company."

No doubt, with such identity in attractiveness, competition with complainant's mills would be much more effective; but defendants overlooked the fact that a court of equity will not allow a man to palm off his goods as those of another, whether his misrepresentations are made by word of mouth, or, more subtly, by simulating the collocation of details of appearance by which the consuming public has come to recognize the product of his competitor.

The decree enjoined the sale of mills of seven sizes which had been already offered for sale, and further enjoined the sale of "any grinding mills having the characteristic shape, design, color, and ornamentation of the grinding mills sold by complainant, and referred to by the numbers 0, 1, 2," etc. (giving 15 numbers). Although there was no proof of any sale of mills corresponding in size to these numbers, the decree as to them was warranted by the answer, which avers that "defendant also intends to make other mills which will be sub131 F.-16

stantially the same goods as other classes of mills made and sold by the Enterprise Company."

The decree of the Circuit Court is affirmed, with costs.

BAILEY v. WILLEFORD.

(Circuit Court of Appeals, Fourth Circuit. February 10, 1904.)

No. 534.

1. INJUNCTION-PRELIMINARY RESTRAINING Order-DisSOLUTION-APPEAL. Act Cong. June 6, 1900, c. 803, 31 Stat. 660 [U. S. Comp. St. 1901, p. 551], amending Court of Appeals Act, § 7, and providing that an appeal will not lie from an order dissolving a preliminary restraining order, did not deprive the Court of Appeals of jurisdiction to entertain an appeal from such an order where it was in fact a final order granted on a decision that plaintiff was not entitled to any relief under the prayer of his bill, though the order did not in terms dismiss the bill.

Appeal from the Circuit Court of the United States for the Western District of North Carolina.

On Motion of Appellee to Dismiss.

Cothran, Dean & Cothran and Adams, Jerome & Armfield, for appellant.

R. B. Redwine and A. M. Stack, for appellee.

Before WADDILL, BOYD, and KELLER, District Judges.

PER CURIAM. This motion is based upon the idea that the decree appealed from in this case is merely an interlocutory decree dissolving the preliminary restraining order awarded by the Circuit Judge in the first instance, and that since the passage of the act of June 6, 1900, c. 803, 31 Stat. 660 [U. S. Comp. St. 1901, p. 551], amending section 7 of the act establishing Circuit Courts of Appeals, no appeal lies from such an order or decree. It is conceded that, if this were an interlocutory order, the appeal would not lie to this court; but it appearing in this case from an inspection of the bill, the order appealed from, and the opinion of the court as contained in the record, that the court finally decided that it could grant the appellant no relief under the prayer of his bill, and that the order made was in fact a final order, this court has jurisdiction to entertain the appeal, regardless of the fact that the order does not in terms dismiss the bill. The motion to dismiss is accordingly refused.

GALOW v. CHICAGO, M. & ST. P. RY. CO.

(Circuit Court of Appeals, Seventh Circuit. April 12, 1904.)

No. 979.

1. MASTER AND SERVANT-INJURIES TO SERVANT-DEFECTIVE APPLIANCES. Where a partition made of planks nailed to piles under a railroad trestle was temporarily erected to separate piles of broken stone and sand dumped under the trestle, to be used in making certain concrete foundations, and such partition was put up, taken down, and transferred as the

work progressed by the workmen themselves, the master was not liable for injuries to a servant caused by his being struck by three of the planks which fell from the top of the partition by reason of their being insufficiently secured.

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

The action in the Circuit Court was to recover for personal injuries sustained by plaintiff in error, while at work on the railway tracks of the defendant in error, near Janesville, Wisconsin. The substantial facts brought to the attention of the court and jury were without dispute.

The tracks of the defendant in error entering Janesville, Wisconsin, pass over a high trestle on wooden piles. At the time of the injury complained of, the defendant in error was engaged in constructing concrete piers to support the tracks at their under crossings, in which work a large force of men was employed. To carry on this work, crushed stone and sand was, from time to time, unloaded from cars on the trestle to the ground below; and to separate the stone from the sand, a temporary wooden partition about sixteen feet high had been put up. The partition consisted of planks laid on edge crosswise of the trestle, and nailed to the upright piles. The partition was put up by the men themselves. At times the stone heap lying on one side of

the partition would rise in the middle to a height of twenty feet; the sand heap on the other side being somewhat lower; but both the stone heap and the sand heap were in constant change, as stone and sand was being carried off by the workmen, in the progress of the work.

Plaintiff in error was, at the time of the injuries, engaged with others in wheeling stone from the pile to a mixer near by. Nearly all the stone had been removed, but the partition still remained. In this state of things, while engaged in loading a wheelbarrow, three of the top planks fell from the partition upon the back of the plaintiff in error, inflicting the injuries for which the action was brought.

The further facts are stated in the opinion of the court. At the close of all the evidence, the court, on motion, directed a verdict for the defendant, and from the judgment entered on such verdict, the writ of error is prosecuted.

Richard Fischer, for plaintiff in error.

Charles B. Keeler, for defendant in error.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges. GROSSCUP, Circuit Judge, after the foregoing statement of facts, delivered the opinion of the court.

It is clear that the partition fence was of the simplest kind of construction, requiring no skill-a mere temporary appliance to the work being done. It was put up, taken down, and transferred, as the work progressed, and the piles of sand on one side, and of stone on the other, rose or fell away from day to day.

It is equally clear that the erection, maintenance, and removal of the fence, was one of the details of the work necessarily entrusted to the workmen themselves. To the mere adjustment of such appliances, and their maintenance in a safe condition, the responsibility of the master to give a safe place in which to work, does not extend. Armour v. Hahn, 111 U. S. 318, 4 Sup. Ct. 433, 28 L. Ed. 440; Butler v. Townsend, 126 N. Y. 112, 26 N. E. 1017. This, indeed, is not a case where the master failed to give the servant a safe place in which to work. It is a case, rather, in which a servant in the performance of his work, was overtaken by an accident, due to the giving away of an appliance for the strength and safety of which he, along with the other workmen, was responsible.

The judgment will be affirmed.

IDEAL STOPPER CO. et al. v. CROWN CORK & SEAL CO.

(Circuit Court of Appeals, Fourth Circuit. July 12, 1904.)

No. 517.

1 PATENTS-ANTICIPATION BY Paper PATENT-IDENTITY OF IDEAS.

In determining the question of identity of the inventive idea involved in two patents, it is not a sufficient answer to say of an alleged anticipation that it was a mere paper patent, and that the device had never been operative or commercially successful, because prior existing conditions may not have stimulated full development.

2. SAME.

A patentee cannot be denied invention because of a prior patent for a device which never came into use, unless the idea upon which his patent is predicated is so clearly set forth or suggested in the alleged anticipating patent that a mechanic with such patent before him could by the exercise of mere mechanical skill so modify proportions or change the mode of operation as to overcome the difficulties which excluded the prior device from commercial utility.

3. SAME-BOTTLE STOPPERS.

The Painter reissue patent, No. 11,685 (original No. 540,072), for a bottle stopper, which consists of a cup-shaped disk of material having a permanent flexion, which is inserted in the neck of the bottle and there expanded into a groove having a shoulder below, and in which a gasket has been placed, thus making a tight stopper, was not anticipated by the British patent to Young, No. 12,247 of 1848, which does not cover a stopper, but merely a disk designed to be expanded on the top of a cork or other stopper, to hold the same in place, performing the function of the wiring otherwise used for that purpose.

Appeal from the Circuit Court of the United States for the District of Maryland.

For opinion below, see 123 Fed. 666.

Philip Mauro (Reeve Lewis and Joseph C. France, on the brief), for appellants.

John C. Rose and Robert H. Parkinson, for appellee.

Before GOFF, Circuit Judge, and BRAWLEY and PURNELL, District Judges.

BRAWLEY, District Judge. The patent in controversy is that which was considered by this court in Crown Cork & Seal Company v. Aluminum Stopper Company, 108 Fed. 847, 48 C. C. A. 72. Of that decision the learned counsel for appellants say:

"We assent absolutely to every legal doctrine stated and applied in that decision, and find in it the full sanction and authority for every proposition upon which we rely. The sound principles and logical reasoning of that decision, applied to the state of facts as they are presented, led necessarily to the upholding of the patent. Applied to the actual state of facts, embracing the Young patent as part of the prior art, they lead of necessity to the opposite conclusion."

It thus appears that the single question presented by this appeal is whether the Young British patent discloses and anticipates the alleged invention of the Painter patent. It was decided adversely to the de

11. See Patents, vol. 38, Cent. Dig. § 73.