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him. That portion of the bill with which this appeal is concerned is with respect to a suit instituted by the defendant against this complainant in the circuit court of the United States for the Southern district of New York, involving precisely the same issues as were made in the court below, and on precisely the same points which that court then had under advisement. “As has been stated, the court below granted the temporary injunction on the fifth prayer for relief, reserving the others. This fifth prayer is in these words:
"That the said defendant, the Berliner Gramophone Company, its officers and attorneys, may be enjoined and restrained from in anywise prosecuting, conducting, or carrying forward in any manner whatsoever until after the final hearing and determination of the issues, matters, things, and questions whatsoever joined, raised, or presented in this action, said action at law, brought by it against your orator.”
To this bill the defendant demurred, and, the demurrer being overruled, it at once filed an answer. The answer being in, and on the motion for a temporary injunction evidently being read as an affidavit, the court made this order:
"And thereupon the plaintiff, by counsel, moved the court for the injunction prayed for in the first, second, and fifth prayers of said amended and supplemental bill. Upon consideration whereof the court doth order, adjudge, and decree that the defendant, the Berliner Gramophone Company, its officers, agents, and attorneys, be, and the same are hereby, enjoined and restrained, until the further order of this court, and, preceding the determination of this cause, from in any wise further prosecuting, conducting, or carrying forward in any manner whatsoever any and all of the matters, things, and questions whatsoever joined in this suit in the action at law instituted by the defendant, the Berliner Gramophone Company, against the plaintiff, Frank Seaman, in the United States circuit court for the Southern district of New York, on the law side thereof, on the 23d day of October, 1900. But this injunction order shall not take effect unless and until the said plaintiff or some one for him shall execute bond, payable to the said defendant, conditioned according to law, to be approved by the court, in the penalty of fifteen hundred dollars. And as to the granting of the injunction prayed for in the first and second prayers of said bill the court takes time to consider. And thereupon the defendant moved the court to dissolve the sa id injunction herein awarded upon the record of this cause, which motion the court doth overrule.”
The defendant files four assignments of error: (1) It is assigned as error that the court should not have granted leave to file the amended supplemental bill, upon which said decree was based. (2) It is assigned as error that the court overruled the demurrer of the defendant to said bill. (3) It is error on the part of the court to award the injunction contained in the decree of March 23, 1901, because the action mentioned in the proceedings as having been instituted in the state of New York was instituted for the purpose of obtaining from the plaintiff damages from an alleged breach of the contract between the parties, and was in the nature of a counterclaim or set-off, and was not being litigated in the above cause, no question being raised by the pleadings as to what damages the defendant suffered and none being claimed by it in this proceeding. (4) It is assigned as error that the court overruled the motion of the defendant to dissolve the injunction awarded by said decree of March 23, 1901, for the same reasons that are set forth in the foregoing assignment of error.
1. The granting leave to file an amended and supplemental bill is within the discretion of the court. Railroad Co. v. Newman, 23 C. C. A. 459, 77 Fed. 791. The granting or refusing leave to file an amended bill or plea is a matter within the discretion of the trial court, and will not be reviewed in an appeilate court unless there has been gross abuse of this discretion. Chapman v. Barney, 129 L. S. 677, 9 Sup. Ct. 426, 32 L. Ed. 800; Gormley v. Bunyan, 138 L. S. 623, II Sup. Ct. 453, 34 L. Ed. 1086; Marco v. Hicklin, 6 C. C. A. 13, 56 Fed. 549. As a general rule, matters resting in the discretion of the court below cannot be re-examined in the appellate court. Cheang-Kee v. U. S., 3 Wall. 320, 18 L. Ed. 72. In the case at bar the court exercised its discretion after careful examination. A petition was filed asking leave to file the amended and supplemental bill. Notice was given. A day was fixed for the hearing, and full discussion was had. After this the decision of the court was made. We see no abuse of discretion in the court. "All that the court inquires into in such an application is whether probable cause exists for granting leave, and whether the application states facts and circumstances which, if properly pleaded, would sustain a supplemental bill or an original bill in the nature of a supplemental bill. The practice in the circuit courts touching applications under the rule for leave to file supplemental bills is liberal toward the applicant, and upon such application the court will not proceed to try the cause, nor to determine questions which may never appropriately be raised by demurrer to the bill when filed.” Bates, Fed. Eq. Proc. § 637.
2. Was it error to overrule the demurrer of defendant to the bill? The demurrer admits the facts stated in the bill. These facts complainant states were only discovered at the first hearing, and many of these have accrued since that hearing. These statements as to these facts have been set out above. If they be true, there is certainly ground for filing the bill and for an investigation of the facts as stated, and for relief therein. They are of an equitable character and go to sustain the jurisdiction of the court.
3. The third assignment of error goes to the injunction restraining the defendant from proceeding in its action at law in the Second circuit. The court below had taken jurisdiction of all matters in controversy between the complainant and defendant, and was proceeding to adjust the equities between them. It claimed to have entire jurisdiction over the whole controversy, and to afford reliei. After this decision was made, and whilst it was still operative, the defendant went into a court of law, and, upon the same facts and circumstances set out in pleadings in the cause in the court below, sought relief in this law court. The complainant was thus compelled not only to go into another jurisdiction to try points at issue below, but also to go into the jurisdiction of a law court in which he could not avail himself of his equities. Under these circumstances the court below enjoined him. It is a familiar principle that when a court of equity has taken jurisdiction of a controversy and has all the parties before it, it proceeds to give full relief, and it can enjoin any proceedings in any other court touching the matters in controversy before it. Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538.
4. The fourth assignment of error is that the court overruled the motion of defendant to dissolve the injunction awarded by the decree March 23, 1901, for the reasons set forth in the other assignments of error. Under Act Cong. June 6, 1900 (31 Stat. 660), this court no longer can entertain an appeal from an interlocutory decree refusing to dissolve an injunction. Westinghouse Air-Brake Co. v. Christensen Engineering Co., 44 C. C. A. 92, 104 Fed. 622; Wire Co. v. Boyce, 44 C. C. A. 588, 104 Fed. 173; National Automatic Mach. Co. v. Automatic Weighing, Lifting & Grip Mach. Co., 44 C. C. A. 664, 105 Fed. 670; Heinze v. Mining Co., 46 C. C. A. 219, 107 Fed. 165; Rowan v. Ide, 46 C. C. A. 214, 107 Fed. 161.
The decree of the circuit court granting the injunction is affirmed.
(113 Fed. 755.)
MCMILLAN V. MORAN.
(Circuit Court of Appeals, Second Circuit. January 7, 1902.)
TOWAGE-INJURY OF Tow– NEGLIGENCE OF Tug.
The master of a tug did not exercise reasonable prudence in attempting to take a tow under the Brooklyn Bridge when it was high tide, or nearly so, knowing that at mean high tide there was a margin of safety not exceeding one foot between the mast of the tow and the bridge, and the tug is liable for the damages caused by the breaking of the mast against the bridge. Appeal from the District Court of the United States for the Southern District of New York.
Chas. C. Burlingham, for appellant.
Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District Judge.
PER CURIAM. While we do not agree with all the findings of fact in the opinion of Judge Brown in the court below (107 Fed. 149), we agree with him in the more essential facts in the case, and concur in his conclusion that the tug did not exercise due care under the particular circumstances in performing the towage service. Her master was informed that the mast of the tow was about 134 feet high. Assuming that he had a right to suppose that the bridge was 135 feet above the water at mean high tide, the margin of safety was too narrow in the condition of the tide at the time. He ought to have been aware, upon observation of the piers and slips, that it had receded but a little. In taking the chances when this was apparent or should have been, he disregarded reasonable prudence.
Decree affirmer, with interest and costs.
(113 Fed. 756.)
GENERAL ELECTRIC CO. v. WEBSTER & D. ST. RY. CO.
WEBSTER & D. ST. RY. CO. v. GENERAL ELECTRIC CO.
(Circuit Court of Appeals, First Circuit. January 29, 1902.)
Nos. 374, 375.
The Eickemeyer patent, No. 377,996, for a coil or winding for dynamoelectric machines, describes, in claims 1 and 2, all of the patentee's invention, which consists of an armature coil for drum armatures, having a certain structural form, and a mode of operation by virtue of such form, the essential feature of which is that one side, or substantially one-half of the coil, is of lesser external dimensions than the internal dimensions of the other half, so that the short side of one coil may be passed into or through the long sides of other coils. Claim 4, which is for a winding composed of detachable counterpart coils, while broad in its terms, can only be sustained, in view of the prior art, when limited to the novel form of such coils described in the preceding claims. Claims
1, 2, and 4 considered, and held not infringed. Appeals from the Circuit Court of the United States for the District of Massachusetts.
Frederick P. Fish and William K. Richardson (J. L. Stackpole, Jr., on the brief), for General Electric Co.
William H. Kenyon (George Harding and Richard Eyre, on the brief), for Webster & Dudley St. Ry. Co.
Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.
COLT, Circuit Judge. The subject-matter of these cross appeals is the Eickemeyer coil or winding for dynamo-electric machines covered by letters patent No. 377,996, dated February 14, 1888. Claims 1, 2, and 4, of the patent are alone in issue; and the only question which arises is whether the defendant's coil infringes any of these claims. The circuit court held that claims i and 2 were not infringed, and that claim 4 was infringed. The form of the coil, with its axial line indicated, is illustrated in Fig. 3 of the drawings of the patent. Other coils shown in the drawings have more convolutions of wire, but all have essentially the same configuration.
The two parts of the coil containing the offsets are called the "ends." They are the inactive portions outside of the magnetic field, and they lie alongside of or adjacent to the ends of the armature core. The two remaining parts opposite the axial line are called the "sides." They are the active portions, which rest on the periphery of the armature core. It will be noticed that the axial line splits the offsets in the center. It will also be noticed that the coil is divided by its axial line into two unequal halves, and that the relative dimensions of the two halves are such that the smaller half may pass into and through the larger half, or, what is the same thing, the short side through the long side. In describing this structural feature, the patentee uses several synonymous forms of expression: The coil wat one side of what may be termed its axial line is of lesser external dimensions than the internal dimensions of the opposite portion.” Again: “Each (coil) having substantially one half thereof of lesser external dimensions than the internal dimensions of the other half.” Again: “Thus making one side of the coil longer than the other side, so that the short side of any one coil may be passed into and through the long sides of other coils.” Again: "In each coil there is a long side, b, and a short side, b', and in each case the short side can be passed into or through the long side."
The claims in issue are as follows: "(1) A dynamo-electric armature coil or winding, which at one side of what may be termed 'its axial line' is of lesser external dimensions than the internal dimensions of the opposite portion, both of said portions being alike in contour, substantially as described. (2) In a dynamo-electric armature. winding, a series of coils which are counterparts in contour, each complete and separable from the others, and each having substantially one half thereof of lesser external dimensions than the internal dimensions of the other half, substantially as described, whereby portions of each of said coils overlie and other portions underlie appropriate portions of other coils. (4) In a dynamo-electric armature, a winding composed of detachable counterpart coils, each of which is placed in immediate contact with the periphery of the armature core at one side only, substantially as described.”
The first claim is for the novel coil. The second claim is for a winding composed of a series of such coils. The fourth claim is for a winding in which the coils are placed in a particular way on the periphery of the armature drum. These claims are carefully drawn. They are expressed in clear and unambiguous terms. The first two define with accuracy and exactness Eickemeyer's main invention. Read in connection with the specification and drawings of the patent, their meaning is plain, unmistakable, and certain. Eickemeyer had a problem to solve, and he solved it, as is common with real inventors, by the application of a simple principle. The problem was the construction of a practical form-wound drum-armature winding for dynamo-electric machines, especially of the bipolar type, composed of detachable, interchangeable, counterpart coils. This problem he solved by the simple method of making the two halves of the coil of such unequal dimensions that the smaller half of one coil may pass into and through the larger halves of other coils. In this conception lay the Eickemeyer invention. Where this construction and mode of opera