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office then rejected all seven of the claims. On appeal to the examiners in chief, the decision rejecting the three tuning claims was af. firmed, and that rejecting the other four claims was reversed, and the patent was issued accordingly. There is nothing in claims 1 and 2, as granted, which has any reference to any new method of tuning, unless it is to be intended, in accordance with the description, that the partial set is to be capable of being tuned a trifle above or below the diapason set. Except, perhaps, to that extent, all there is in the descriptive part of the specification in relation to a new method of tuning may be dismissed from consideration, as it was introduced to lay a foundation for the original claims 2, 3, and 4, in reference to such new method of tuning. Claims 1 and 2, as they stand, relate only to the arrangement of the reed-board and the sets of reeds, in conjunction with the foundation board and the valve openings and the valves.
The specification shows that the inventor takes a reed-board having two sets of reeds running through the entire scale, a diapason set and an octave or principal set, and makes no change in the foundationboard, or in the case, bellows, pedal, etc. The reed-board with the two sets was old. In its structure, as shown in Figure 2 of the draw. ings, and as described in the specification, the lowest and longest reeds in the two sets are placed so near together as to leave between them room only for the tracker-pin which communicates motion from the key to the valve; but, as the reeds shorten continually as the scale proceeds upward, there is a vacant space between the ends of the reeds in the two sets, which space continually grows wider. Within that space the inventor introduces a third set of reeds, commencing at or about tenor, F, and running upward through the scale. He places this third set over the octave set, and the reeds run downwardly in a direction oblique to the foundation-board, and their vibrating ends, which are their lower ends, rest on the same base as that of the other two sets of reeds. They are of the same size as the corresponding reeds in the diapason set. The point of advantage in bringing down the vibrating ends of the reeds in the third set, so that they shall rest on the same base with the vibrating ends of the reeds in the other two sets, is shown by the evidence to be the same point of advantage which is set forth in the specification of the prior patent granted to the plaintiff on the ninth of January, 1866. In that the invention is stated to be to so make the reed-board that the three or four sets of reeds in it shall be acted upon instantly and simultaneously by the rush of air upon the opening of the valve; and it is set forth that that result is effected by placing two sets of reeds on the same horizontal plane, and placing the other sets on an inclined plane, *each with its base on the same level as the first and second sets, thus making the head of each reed equidistant from the valve and making each produce instantaneous concerted sound.
There was introduced in evidence a reed-organ, known as exhibit No. 21, containing reed-board with two sets of reeds and a third partial
set, alleged to have been made by one Dayton in 1866, prior to the plaintiff's invention. There was much testimony on the question as to whether the reed-board and reeds in this organ were made prior to the plaintiff's invention, in the shape in which they appeared when put in evidence. The circuit court decided that question in the affirmative, but nevertheless it held that the arrangement of reed-board and reeds found in No. 21 did not embrace the entire arrangement specified and claimed in claim 1 of the patent, because, although it had a reed-board no wider than was necessary for two full sets of reeds, and had an additional partial set of reeds put in on an incline, and although the reeds in that set may have been tuned flat in relation to the diapason set, yet such reeds did not rest on the same base as that of the other two sets of reeds. We concur with the circuit court in its conclusion as to the genuineness and the date of No. 21, but are of opinion that there is nothing found in the alleged infringing organs which, so far as claim 1 of the plaintiff's patent is concerned, is not found in No. 21. The vibrating reeds in the partial set in the alleged infringing organs do not rest on the same base as that of the other two sets of reeds, and occupy a position in that respect no different, in reference to any requirement of the plaintiff's patent, from that occupied by the vibrating ends of the partial set in No. 21. In all other respects in which the alleged infringing reed-board and reeds embrace what is covered by claim 1 of the plaintiff's patent, what they contain is found in No. 21.
The material point in claim 2 is the contraction of the valve openings. The idea is that the valve openings and passages for the two complete sets of reeds and the intermediate partial set are contracted or condensed within the same space which was usually occupied by the valve openings and passages for only two complete sets of reeds
in an instrument of the usual prior construction; and that, therefore, no more force is required to be applied to the keys to open the valves than where only two full sets of reeds are used. The circuit court was of opinion that the valve openings in No. 21 were not the contracted valve openings of the plaintiff's patent, because they were as large as the valve openings in a reed board having three full sets of reeds; and that the lowest and longest reeds in No. 21 did not, as in the plaintiff's arrangement, have their vibrating ends as near together as they could be, with room between them only for the tracker-pin. Our conclusion is that the absolute length and size of the valve opening was a matter of judgment, in view of the state of the art shown, and that there was no invention in making its length and size greater or less in a reed-board of a given width, or where the reed-board was made wider or narrower, or had more or less sets of reeds in it, either full or partial. The dimensions of the valve-opening and of the valve ale regulated by the judgment of the manufacturer as to the quantity of air necessary, and the resistance to be overcome in working the valve, and the inconvenience of the leakage of air. We are also satisfied that the vibrating ends of the lowest and longest reeds in No. 21 were as near together as they are in the reed-boards of alleged infringing organs.
It results from these considerations that the decree of the circuit court must be reversed, and the case be remanded to that court, with direction to dismiss the bill.
(110 U'. S. 108)
KELLOGG BRIDGE Co. v. HAMILTON.
(January 14, 1884.)
CONTRACT TO BUILD BRIDGE, PARTIAL EXECUTION SUBLETTING CONTRACT TO
A bridge company, having partially executed a contract for the construction of a
bridge, entered into a written agreement with a person, whereby the latter undertook, for a named sum, and within a specified time, to complete its erection. The subcontractor agreed to assume and pay for all work done and material furnished up to that time by the company. Assuming this work to have been sufficient for the purposes for which it was designed, the subcontractor proceeded with his undertaking, but the insufficiency of the work previously done by the company was disclosed during the progress of the erection of the bridge. No statement or representation was made by the company as to the quality of the work it had done. Its insufficiency, however, was not apparent upon inspection, and could not have been discovered by the subcontractor until actu. ally tested during the erection of the bridge. Held, that the law implied a war. ranty that the work sold or transferred to the subcontractor was reasonably sufficient for the purposes for which the company knew it was designed.
In Error to the Circuit Court of the United States for the Northern District of Ohio.
Richard Waite and E. T. Waite, for plaintiff in error.
HARLAN, J. The Kellogg Bridge Company, which brings this writ of error and was defendant below, undertook to construct, for the Lake Shore & Michigan Southern Railroad Company, an iron bridge across Maumee river, at Toledo, Ohio. After doing a portion of the work it entered into a written contract with Hamilton, the defendant in error, for the completion of the bridge under its directions. That contract is the basis of this action and contains, among others, these stipulations :
"That the said party of the first part [Hamilton) hereby agrees to furnish and prepare all the necessary false work and erect the iron bridge now being constructed by the said party of the second part [the Kellogg Bridge Company] for the Lake Shore and Michigan Southern R. R. Co., at Toledo, Ohio, over the Maumee river, receiving said bridge material as it arrives on the cars at the site of said bridge and erecting the same in the best manner, according to the design of said bridge and the directions of said second party, from time to time, commencing the erection of said work when required to do so by said seconda party, and*proceeding with the same with a force sufficient to complete the
entire work on or before the first day of March next; the said first party also agrees to assume and pay for all work done and materials furnished up to the time of executing this contract, including piling and piles, timber, and other materials and labor done on the same, but not including bolts and washers which have been furnished by the party of the second part, but to return said bolts and washers to the said second party, or pay for the same on completion of said bridge. And the said first party in consideration of the payments hereinafter mentioned, to be made by said second party, agrees to perform all the stipulations of this agreement in a through and workmanlike manner and to the satisfaction of the second party. And if at any time the said second party is not satisfied with the manner of performing the work herein described, or the rapidity with which it is being done, the second party shall have full power and liberty to put on such force as may be necessary to complete the work within the time named, and provide such tools or materials for false work as may be necessary, and charge the cost of the same to the said first party, who agrees to pay therefor.”
In consideration of the faithful performance of these stipulations, Hamilton was to receive from the Bridge Company $900 on the completion of the first span, a like sum on the completion of the second span, $800 on the completion of the third span, and $1,403 on the completion of the draw and the entire work—such payments to be made only on the acceptance of each part of the work by the chief engineer of the Lake Shore & Michigan Southern Railroad Company.
The bridge which Hamilton undertook to erect consisted of three independent fixed spans, each to be 175 feet 6 inches in length, suspended between and resting at each end of the span upon stone piers, which had been prepared to receive the same, and one draw span of 185 feet in length, resting upon a pier in the center, also then prepared. In erecting the several spans it was necessary to build and use what the contract describes as "false work," which consisted of piles driven in the river between the piers upon which the spans were to rest, and apon which was placed a platform.
As indicated in the written contract, the bridge company had previously constructed a part of this false work between the first and second spans, the cost of which Hamilton paid, as by the contract he agreed to do. Assuming this work to be sufficient for the purposes for which it was designed, Hamilton proceeded to complete the erection. of the bridge according to the plans furnished him.
There was evidence before the jury tending to estab ish the following facts: A part of the false work or scaffolding put up by the company sank under the weight of the first span, and was replaced by Hamilton. When the second fixed span was about two-thirds completed, the ice, which before that had formed in the river, broke up in consequence of a flood, carrying away the false work under that span, and causing the whole of the iron material then in place on the span, or on the span ready to be put in place, to fall in the river, which at that place was about 16 feet deep. If the piles driven by the bridge company had been driven more firmly into the bed of the river, they would have withstood the force of the ice and flood. In consequence of the insufficiency of the false work done by that company, Hamilton was delayed in the completion of the bridge and subjected to increased expense.
In this action his claim is that the company is liable, not only for the amount specified in the contract, but also for such damages as he sustained by reason of the insufficiency of the false work it constructed. Charging defendant with these amounts, and crediting it with such sums as had been paid to or for Hamilton, a balance of $3,693.78 was claimed to be due the latter. Defendant, by way of counter-claim, asked judgment against Hamilton for $6,619.70. There was a verdict and judgment in favor of plaintiff for $3,039.89.
It is insisted by the defendant in error that the value of the matter really in dispute here is less than the amount requisite to give this court jurisdiction. Upon this ground a motion to dismiss was here
a tofore made, and was denied. To that ruling we adhere. Upon the pleadings it is apparent that the defendant asserts its right to judg. ment for $6,619.70 after crediting plaintiff, not only with the sum specified in the contract, but with every other sum to which he is entitled in the accounting. This is conclusive as to our jurisdiction upon this writ of error.
It was not claimed on the trial, nor is it contended here, that the company made any statement or representation as to the nature or character of the false work it did, and which, by the contract, Hamilton agreed to assume and pay for. But there was evidence tending to show that the insufficiency of that false work was unknown to Hamilton at the time the contract was made; was not apparent upon any examination he then or could have made; and was not discuro ered, indeed, could not have been discovered, until, during the progress of the erection of the bridge, the false work was practically tested.
The court, among other things, instructed the jury, at the request of plaintiff, and over the objections of the defendant, that by the contract-looking at all the circumstances attending its execution and giving to its terms a fair and reasonable interpretation—there was an implied warranty upon the part of the company that the false work it did, and which plaintiff agreed to assume and pay for, was suitable and proper for the purposes for which the bridge company knew it was to be used. This instruction was accompanied by the observation that if the evidence showed "that the particular work which was said to be defective was such that the plaintiff could not by examination ascertain its defects—for if they were apparent by mere examination of the false work it was the duty of the plaintiff to make that good—he ha l the right to rely upon the implied warranty; that is, if the defects were such that they could not be, by ordinary observ.. ation and care on behalf of the plaintiff, ascertained and found out." That instruction presents the only question we deem necessary to determine. Although there are several assignments of error, they