BOSTON RUBBER SHOE 00.
LAMKIN.
93
were common to both.parties, in the broad claim of Hartshorn. When the mistake was discovered, it was corrected by a simple exchange of 'claims. We are of opinion that, under these unusual circum· stances, the lateness of the application is explained and shown to have been brought about by an actual mistake, without fraud, and to have been one from which no innocent person could have suffered. This is infringed by:the .defendant's apparatus. His pawls, or detents,differ somewhat from those described in the patent, but not materially, as far as the first claim is concerned. ' Decree for complainant on the Campbell reissue.
BOSTON RUBBER SHOE
Yo.v.
LAMKIN
and others.
(Circuit Oourt j D. Massachusetts. October 11, 1883.) PA,.,il:NTS FOR INVENTIONS.
The patent of Erskine F. Bickford, No. 196,788, for rubber boot-straps, Dot Ilustained for lack of novelty.
InEquity.
.
J. L. S. Roberts; for complainant. John K. Beach, for defendants. LOWELL, J. The patent of Erskine F. Bickford, No. 196,788, dated November 6, 1877, is sued upon here. The single .
"As an improved article of manufacture, a rubber boot provided with a l,"ounded, standing loop, of substanti.ally the same material as the boot; said loop being; made in the shape of,a &taple, alld having its ends flattened and cemented,or otherwise SUitably secured, between the inner and outer layers of said boot, SUbstantially as and for the purposes described."
boot which is described and4rawn in the specification bas a standing loop which opens transvers,ely of the leg, instead of tu,dinally with it. This makes Il.' very conveJ;lient loop, which appears to have made the boot acceptable to the public. The evidence produced by the defendant upon the state of the art shows a patent issued to F. H.Moore, January 15, 1864, No. 41,087, in which a standing loop is described, whioh the patentee says is intended as a substitute for the ordinary woven or webbing boot-straps in common use. It is to be constructed of metal, or any rigid, tough,or hard substance, such as heavy wire or plate metal. The loops are shown as opening transversely of the leg, and the patentee says that they may be grasped with much greater facility than the ordinary straps. This patent was reissued in February, 1864, with a claim &sfollows: "A strap for and shoes of metal, or other rigi4 or tough material, attached either permanellt!y to the boot·top, or in Buch manner as to admit, aft.er the boot is drawn on)he foot, of being turned or shoved down within or at tb:e:outer side of the boot, substantially as described;" ,
'----------------
: J I'EDE1U.L'l PPORTEB.
The first-'part 6f the claim .describes the pl&intifi's strap or .loop, and no patent can be sustained for an old form, of boot containing a standing loop oftongh,material, unless invention is exercised in the a.daptation. But the loop of the plaintiff's boot is attached to the boot in a mode old and,well knowncinthe of baga and other similar articles of India rubber. ,T.nere was, therefore, in my opiJ;l,ion, no room for invention in adapting a strap or loop of ,India rubber'to abobt of the same ma.terial .in one oi the forms shown by Moore in his reissued patent. Bill dismissed, with costs.
DAVIDSON and others v. FOUR HUNDRED TONS IRON ORE. (DiBtriot Oourt, D. NetD'JM-BeY. October 2, 1883.) SUIT TO RECOVER DEMURRAGE, AND FOR BREACH OF CONTRACT QF AFFREIGHTMENT. ·
Libelants were not permitted to recover t!. a suit for. demurrage and daI{l' ages by reason of a breach of contract to carry the facts showing that the failure on the part of tke defendants to fulfill their contrac;:t in a measure by the acts of the libelants, and in part by Clrcumstances over which defendants had no control, and with which they could not be fairly charged, and where, under the contract, there appeared to be no llgreement to pay demurrage except in the case of unreasonable delay, and there'was no evidence of such unreasonable delay.
In Admiralty. Beebe, Wilcox & Hobbs, for libelants. Samuel H. Valentine, for respondent. NIXON, J. This is a proceeding in rem on a contract of affreight-
ment. The libel alleges that on the fifteenth of October, 1882, the libelants agreed with the respondent, D. W. R. Read & Co., to lighter or transport from the bark Mattea, which was about to arrive into the port of New York, a cargo of about 700 tons of iron are, and to carry the same from the port of New York to the city of Hudson, at the rate of freight of 60 cents per ton; the said respondent also agreeing to pay demurrage for the detention of libelants' boats at the rate of eight dollars per day for each boat; that said bark did not arrive at New York, and was not ready to discharge her cargo, until November 27, 1882; that on the arrival of the bark the libelants' lighter, called the Sylvan Stream, received ali board 293 tons of said ore, and proceeded forthwith to Hudson, and discharged the same in as good condition and order as received; but that said lighter was detained by the respondent four days, and that libelants are entitled to the sum of $32 for demurrage; that in respect to the residue 'of the cargo, notwithstanding the libelants had their lighters along-side of the bark in readiness to receive the same, the respondent delayed having the disGharged into the lighter until it was impossible to proceed tQ Hudson on account of the ice, and the close of navigation in conse·