Opinion of the Court.

his having been received as an ordinary passenger, or upon any representations made by a ticket-seller, conductor or other officer of the company as to his right to use a ticket, but wholly upon the construction and effect of the written contract, signed by him, upon the face of the ticket (of the kind called "tourist's" or "round-trip" tickets) sold him by the defendant for a passage to Hot Springs and back, by which, in consideration of a reduced rate of fare, he agreed to the following terms:

By the fifth condition, the ticket "is not good for return passage unless the holder identifies himself as the original purchaser to the satisfaction of the authorized agent of the Hot Springs Railroad at Hot Springs, Ark., within eighty-five days from date of sale, and when officially signed and dated in ink and duly stamped by said agent this ticket shall then be good only five days from such date."

The clear meaning of this condition is that the ticket shall not be good for a return passage at all, unless, within eightyfive days from its original date, the holder not only identifies himself as the original purchaser to the satisfaction of the agent named, but that agent signs, dates and stamps the ticket; and that, upon such identification and stamping, the ticket shall be good for five days from the new date.

The sixth condition, by which the ticket is to be void if the plaintiff does not sign his name and otherwise identify himself, whenever called upon so to do by any conductor or agent of either of the lines over which he may pass, is evidently intended as an additional precaution against a transfer of the ticket either in going or in returning, and not as an alternative or substitute for the previous condition to the validity of the ticket for a return trip.

The twelfth condition states that the plaintiff understands and expressly agrees that no agent or employé of any of the lines has any power to alter, modify, or waive any of the conditions of the contract.

By the express contract between the parties, therefore, the plaintiff had no right to a return passage under the ticket, unless it bore the stamp of the agent at Hot Springs. Such a

Opinion of the Court.

stamp was made by the contract a condition precedent to the right to a return passage, and no agent or employé of the defendant was authorized to waive that condition.

The plaintiff contends that, as there was no agent at the office at Hot Springs, to whose satisfaction he could identify himself, and by whom he could have his ticket stamped, when he presented himself with his ticket at that office, within a reasonable time before he took the return train, he had the right to be carried from Hot Springs to St. Louis under his ticket, without having it stamped, and may therefore maintain this action against the defendant for the act of its conductor in expelling him from the connecting train upon the defendant's road.

If this defendant had been the party responsible for not having an agent at Hot Springs, the question thus presented would have been of some difficulty, although we are not prepared to hold that, even under such circumstances, the plaintiff's remedy would not be limited to an action for the breach of the implied contract to have an agent there, and to the expense which he thereby incurred. But this case does not require the expression of any opinion upon that question.

By the first condition of the contract contained in the plaintiff's ticket, the defendant is not responsible beyond its own line. Consequently it was not responsible to the plaintiff for failing to have an agent at the further end of the Hot Springs Railroad. The agent who was to identify the passenger and stamp his ticket there was the agent of the Hot Springs Railroad Company, and is so described in the ticket, as well as in the petition. If there was any duty to have an agent at Hot Springs, it was the duty of that company, and not of the defendant. The demurrer admits only the facts alleged, and does not admit the conclusion of law, inserted in the petition, that by reason of the facts previously set forth, and which do not support the conclusion, the defendant and its agent failed and refused, without just cause or excuse, to identify the plaintiff as the original purchaser of the ticket, or to sign, date and stamp it. Hitchcock v. Buchanan, 105 U. S. 416.

The omission to have an agent at Hot Springs not being a

Syllabus.

breach of contract or of duty on the part of this defendant, the case is relieved of all difficulty.

The conductor of the defendant's train, upon the plaintiff's presenting a ticket bearing no stamp of the agent at Hot Springs, had no authority to waive any condition of the contract, to dispense with the want of such stamp, to inquire into the previous circumstances, or to permit him to travel on the train. It would be inconsistent alike with the express terms of the contract of the parties, and with the proper performance of the duties of the conductor, in examining the tickets of other passengers, and in conducting his train with due regard to speed and safety, that he should undertake to determine, from oral statements of the passenger or other evidence, facts alleged to have taken place before the beginning of the return trip, and as to which the contract on the face of the ticket made the stamp of the agent of the Hot Springs Railroad Company at Hot Springs the only and conclusive proof.

The necessary conclusion is that the plaintiff cannot maintain this action against the defendant for the act of its conductor in putting him off the train. Townshend v. New York Central Railroad, 56 N. Y. 295; Shelton v. Lake Shore Railway, 29 Ohio St. 214; Frederick v. Marquette &c. Railroad, 37 Michigan, 342; Bradshaw v. South Boston Railroad, 135 Mass. 407; Murdock v. Boston & Albany Railroad, 137 Mass. 293, 299; Louisville & Nashville Railroad v. Fleming, 14 Lea (Tenn.), 128.

Judgment affirmed.

HOLLAND v. SHIPLEY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.

No. 249. Argued and Submitted April 25, 1888. Decided May 14, 1888.

A patent for a lead-holding tube of a pencil, having at the lower end two or more longitudinal slots, a screw-thread inside, and a clamping-sleeve outside, each part of which, as well as the combination of two or more slots with the sleeve, or of a single slot with the screw-thread, has been previously used in such tubes, is void for want of invention.

Opinion of the Court.

BILL IN EQUITY to restrain alleged infringements of letters patent. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion.

Mr. George J. Murray for appellant.

Mr. E. E. Wood and Mr. Edward Boyd, for appellees, submitted on their brief.

MR. JUSTICE GRAY delivered the opinion of the court.

This is an appeal from a decree dismissing a bill in equity for the infringement of letters patent granted to the plaintiff January 22, 1884, for "improvements in lead-holders for pencils," which (omitting the drawings and the explanation of them) fully shows the invention claimed, and the form of leadholders or lead-tubes previously in use and known to the patentee, as follows:

"The object of my present invention is to hold the lead or crayon in pencils from slipping back within the tube when⚫ pressed upon by the act of writing, without danger of breaking the lead.

"Lead-tubes now in common use are usually slotted at the lower end to form elastic clamping-fingers, which fingers are closed upon the lead near its point end by a sleeve or a tube which moves longitudinally over the fingers. These fingers are either smooth upon the inside, or terminate at their ends in sharp inward projections or claws. The first kind soon become so smooth that the lead slips back when borne upon in the act of writing; and the second frequently breaks the lead when the clamping-sleeve is tightened up, and when tightened up carefully the lead often breaks in use when writing with the pencil inclined. I overcome both these objections by making a fine screw-thread within the lower end of the tube, before it is slotted to form the clamping-fingers.

"The clamping-fingers may, instead of being screw-threaded upon the inside, be serrated or roughened to accomplish the same result; but the screw-thread is much better, because by this means a uniformly-even roughened surface can be made

Opinion of the Court.

within the lower end of the tube at comparatively small expense; and, as these pencils are designed to take the place of the common lead-pencil, they must be made cheaply to insure their introduction into general use.

"I am aware that it is old to provide a pencil-case for holding ordinary lead-pencils with a sliding ring, to which are secured spring-clamps having their holding-surfaces serrated, and having their shanks bent to approach each other, then jut outwardly and downwardly at their free ends, so that a ringslide may be moved upon said shanks to cause the free ends of the clamps to grasp or release a pencil; and I am also aware that it is old to provide the lead-holding tube of a pencil with an interior thread and a single slot. I therefore do not claim either of these devices.

"I claim as my invention

"1. As a new article of manufacture, a lead-tube for pencils, consisting, substantially as before set forth, of a tube provided at one end with internal or female threads and two or more longitudinal slots to form threaded fingers.

"2. The combination, with the lead-tube provided at one end with internal threads and two or more longitudinal slots, of a clamping-sleeve adapted to be adjusted upon the slotted end of the tube to press the threaded fingers upon a lead, substantially as described."

It thus appears upon the face of the plaintiff's specification that there were already in use lead-holding tubes for pencils with two or more slots at the lower end, so as to form elastic clamping-fingers, closing upon the lead by means of a sliding sleeve; as well as tubes with a single slot and an interior screw-thread.

The slots, the screw-thread within, and the outer sleeve being all old, and the combination of two or more slots with the sleeve, or of a single slot with the screw-thread, being also old, it is too clear for discussion, that to make two or more slots in a tube threaded inside and sleeved outside required no invention; and it is therefore unnecessary to consider the evidence upon the question whether the plaintiff was the first person who did this.

Decree affirmed.