Sivut kuvina

Fox, 21 Minn. 51, 53; Grames v. Hawley (C. C.) 50 Fed. 319, 321; Lusk v. Hastings, 1 Hill, 659, 662; Graves v. Graham (City Ct. N. Y.) 43 N. Y. Supp. 508; Beach v. Beach (S. D.) 43 N. W. 701; Barfield v. McCombs (Ga.) 15 S. E. 666. The case at bar falls fairly within the exceptions. Arnold was the prevailing party in the judgment in the action against him. He secured a judgment against the receiver for his costs. Thereupon his attorneys had authority, by virtue of their general retainer, to collect the amount of this judgment, to accept service of a citation upon the issuance of a writ of error to review it, and to take any requisite steps to oppose the attempt of the defeated party, made within a reasonable time after the entry of the judgment, to reverse it. The attorneys of Arnold were also the attorneys of about 36 other defendants who had secured similar judgments. The receiver was about to apply for writs of error to reverse them. The 37 cases involved a single question. In order to prevent the reversal of the judgments, the attorneys for these 37 parties agreed with the attorney for the receiver that he should select one case and sue out but a single writ of error, and that all the other cases should abide the final decision of that in which the writ was to be issued. The receiver relied upon the agreement, and performed it. The attorneys for the defendant followed the test case through the Court of Appeals (106 Fed. 438, 45 C. C. A. 408) and the Supreme Court (23 Sup. Ct. 845, 47 L. Ed. 344), until the reversal of the judgment therein was finally affirmed. All the rights and interests of the defendant, Arnold, were completely protected by this course of proceeding. The question in his case was argued in the higher courts by the attorneys whom he had retained to try it for him in the court below, by the attorneys who had authority to accept, and who undoubtedly would have accepted, service of a citation in error, and who would have argued his case in the higher courts if they had not made the stipulation and a writ of error had been issued, as it certainly would have been, to review it. Their stipulation prevented the issue of that writ, protected all the rights of their client, saved him the unnecessary expenditure of money, and was as completely within the authority granted to them by their retainer as the acceptance of service of a citation or the resistance of a motion for a new trial. Our conclusion is that the retainer of an attorney at law to conduct an action confers upon him authority to stipulate with opposing counsel after the rendition of a judgment in favor of his client and after the close of the term of court at which it was rendered, but within the time for procuring a writ of error, that the case shall abide the final decision of another action which involves the same question and is conducted by the same attorneys.

It is next insisted that this suit in equity cannot be maintained because the complainant has an adequate remedy at law. He has no remedy at law in his original action, because the term at which the judgment was entered has long since expired, and the court which rendered it no longer has jurisdiction to vacate or modify it for the reasons which the complainant presents. City of Manning v. German Ins. Co., 46 C. C. A. 144, 147, 107 Fed. 52, 55, and cases

cited. His only remedy at law is an action for damages for the breach of the stipulation. That action, however, may involve the trial of the issue whether or not a judgment against the appellee, Arnold, pursuant to the stipulation, would have been collectible if rendered; for, if Arnold had no property liable to execution, the receiver's failure to recover a judgment against him would have inflicted no damages upon him. There is no such issue of fact or of law to be tried in this suit in equity. All the averments of the bill are admitted, and the receiver is entitled to a decree. His remedy at law by an action for damages is therefore not as prompt and efficient to attain the ends of justice as is this suit in equity. Moreover, it is not adequate. It will leave the judgment which the defendant has recovered in full force and of record, while a court of equity may enjoin its enforcement, and may require the defendant to discharge it. The remedy at law which precludes relief in equity must be "as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." Boyce's Ex'rs v. Grundy, 3 Pet. 210, 215, 7 L. Ed. 655; Springfield Milling Co. v. Barnard & Leas Mfg. Co., 81 Fed. 261, 265, 26 C. C. A. 389, 393. The action for damages does not meet the test of an adequate remedy at law which precludes relief in equity.

The third reason assigned for the dismissal of the bill is that the receiver's attorney was guilty of laches, because he did not bring to the attention of the court the stipulation, its loss, and his motion to docket the case again at an earlier date. The stipulation was not made until November, 1899. The final decision in the case of Smith and Cotton was not rendered until November 17, 1902. Then for the first time a cause of action accrued upon the stipulation. The attorney for the receiver disclosed the execution and loss of the stipulation, and moved to redocket the action at law, and for leave to have it stand upon the docket to abide the final decision in the test case, as early as March, 1902. Laches is of the nature of estoppel. Courts apply it to suits in equity by analogy to the statute of limitations to protect innocent parties and to avoid inequitable results. There are no innocent parties who will suffer here by the enforcement of the plain agreement of the defendant, Arnold. No injury was inflicted upon him by the delay of the attorney for the receiver in making his motion, because the court was as completely without jurisdiction to grant it when the stipulation was made as it was when the motion was denied. The stipulation first became actionable on November 17, 1902. This suit was brought on August 15, 1903. The time limit by the statutes of Missouri for commencing the analogous action at law was five years. Rev. St. Mo. 1899, § 4273. In the absence of extraordinary circumstances, such as the destruction of muniments of title, the death or removal of parties, many innocent purchasers, radical changes in the condition or value of property or its speculative character, courts of equity never apply the doctrine of laches earlier than at the expiration of the time limited for the commencement of analogous actions at law. Kelley v. Boettcher, 85 Fed. 55, 62, 29 C. C. A. 14, 21. There were no such circumstances in the case in hand, and neither the receiver

nor his counsel have been guilty of any delay which precludes them from successfully seeking the equitable relief to which they are entitled.

The decree below is accordingly reversed, and the case is remanded to the Circuit Court, with instructions to overrule the demurrer, to permit the defendant, Arnold, to answer the bill in accordance with the provisions of the thirty-fourth rule in equity, in case he fails to answer to take the bill pro confesso, and to render a decree to the effect that the defendant, Arnold, his executors, administrators, and assigns, are perpetually enjoined from collecting or in any way enforcing the judgment he has obtained against the receiver; that he be directed to satisfy and discharge that judgment from the record; that the receiver recover from him $500, the amount of the second assessment upon his stock, with interest at 6 per cent. per annum from March 7, 1899, and costs; and that the receiver have execution to enforce the collection thereof; and, in case the defendant shall answer, to take proceedings not inconsistent with the views expressed in this opinion.


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

No. 524.


Where, in an action for damages for collision at sea, the trial judge had the opportunity of seeing the witnesses and determining their credibility from their manner and appearance, his decision will not be reversed on appeal unless it clearly appears to be contrary to the evidence.

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

La Roy S. Gove (James J. Macklin, on the brief), for appellant.
Robert H. Smith, for appellee.

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

BRAWLEY, District Judge. The libel is to recover damages for injuries received by two barges through collision with a pier while in tow of steam tug Irene, about midnight of July 30, 1902, at the entrance of the harbor of Baltimore. The learned judge below, who heard all of the testimony except that of one witness, found that the disaster occurred from the steering of the barges, the men on board of them not being capable, and not steering them properly. He found further that the entrance to the harbor was narrow, and crowded with small vessels, and that the tug took her usual course, and did all that could reasonably be expected in the circumstances, and was without fault.

1. See Admiralty, vol. 1, Cent. Dig. § 770.

There is no dispute between the contending parties as to the legal principles which govern the case, and the rule being well settled that this court will not reverse the decision of a district judge who has had the opportunity of seeing the witnesses and determining their credibility from their manner and appearance, unless it clearly appears that the decision is against the evidence, and as the examination of the testimony leads us to concur in his view of it, the decree of the court below is affirmed.



(Circuit Court of Appeals, Sixth Circuit. July 9, 1904.)

No. 1,298.



Where a petition in a state court in an action for injuries to a servant against the master and a servant alleged concurring acts of negligence of the master and the servant, and the servant was of the same citizenship as plaintiff, the case did not present a separable controversy between plaintiff and the master, and was not, therefore, removable to the federal court.

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

Charles A. Thatcher, for plaintiff in error.

Doyle & Lewis and J. W. Schaufelberger, for defendant in error. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

PER CURIAM. Reversed and remanded, with directions to remand to the state court. Petition charged concurring acts of negligence of master and servant, and was therefore not a removable case, as presenting a separable controversy between plaintiff and the corporation, and is therefore governed by Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121, and Hunt v. American Bridge Co. (decided by this court at the May session) 130 Fed. 302.

1. Separable controversy as ground for removal of suit to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.


(Circuit Court of Appeals, Sixth Circuit. May 9, 1904)

No. 1,254.

1. PATENTS-CONDITIONAL LICENSE TO USERS-CONTRIBUTORY INFRINGEMENT. It is within the right of the owner of patents for machines used by retail dealers to fasten buttons on shoes for customers to furnish such machines to users, without charge, under a license which permits their use only with wire purchased from such owner; and one who, with knowledge of such restriction, manufactures and sells to such users wire put up on spools in the exact form required for use on such machines, and which is suitable for no other use, with the intention that it shall be used on such machines, is liable as a contributory infringer.


A suit which raises a question of infringement is one arising under the patent law, and the fact that the patentee may also have a remedy by action for breach of contract does not defeat the jurisdiction.

Appeal from the Circuit Court of the United States for the Southern District of Ohio.

Frederick E. Niederhelman (Lewis M. Hosea, of counsel), for appellant.

Taggart, Dennison & Wilson, for appellees.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON, Circuit Judge. This is a bill to restrain contributory infringement of patents Nos. 408,700, 526,012, and 552,869, issued to the complainant W. E. Elliott for improvement in machines for attaching buttons to shoes. The Elliott button fastening machines are intended for use by retail shoe dealers in setting or resetting buttons upon shoes sold to customers. The bill avers that these machines are "adapted and intended to take a coil of continuous wire, feed the same to a convenient point in the machine, sever a section of the wire therefrom, construct and form a staple through the eye of a shoe button, and drive the staple, or the prongs thereof, through the leather of the shoe, and clinch the same in position, * all by one stroke or operation of the machine. * That it was necessary to use wire of a certain size, and a certain temper or color, and coiled or put up in packages so shaped as to be received into the appropriate part of the machine." Machines according to these patents are made by the com plainant the Elhott Machine Company, but are never sold, but placed in the hands of users under a license to use only in connection with staple wire purchased from the patentee. Every machine carries a metal inscription indicating that the patentees retain the title, and consent only to this restricted use. It is averred that the owners of the patent thus limit their own compensation to the profit upon the wire used in forming staples. It is averred that more than 6,000 machines have been thus placed in the hands of retail shoe dealers within the United States, and all of them conditioned in use as stated above. The

11. See Patents, vol. 38, Cent. Dig. § 402.

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