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 patent. Decree dismissing the bill. The case is stated in the opinion.

infringements of letters Complainant appealed.

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 apon 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 re

quired 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.

A provision in a policy of fire insurance, that if the interest of the assured in the property is "any other than the entire, unconditional and sole ownership for the use and benefit of the assured," or is "incumbered by any lien, whether by deed of trust, mortgage or otherwise," it must be so represented in the policy, does not, if it is stated that the property is incumbered, require a statement of the nature or amount of the incumbrances.

"

An application for fire insurance, expressly made a part of the policy and a warranty by the assured, contained these questions and answers: • Is there any incumbrance on the property? Yes. If mortgaged, state the amount. $3000." Held, that an omission to state that the property was incumbered otherwise than by mortgage was no breach of the warranty. A warranty, in a contract of fire insurance, that smoking is not allowed on the premises," is not, if smoking is then forbidden on the premises, broken by the assured or others afterwards smoking there.

66

THIS was an action by Hosford and Gagnon on a policy of insurance, dated May 14, 1883, by which the Germania Fire Insurance Company and the Hanover Fire Insurance Company, severally and not jointly, and as if by separate policies, insured the plaintiffs, against loss by fire for a year from that date, each one half of the sum of $8000, payable in sixty days after notice and proof of loss, upon their flour-mill, elevator and machinery in the town of Rulo and State of Nebraska; "special reference being had to assured application No. 20,157, which is hereby made a part of this policy and a warranty on the part of the assured;""loss, if any, payable to Israel May, mortgagee, as his interest may appear." The policy contained these provisions:

"The application, survey, plan or description of the property herein insured shall be considered a part of the contract and a warranty by the assured; and any false representation

Statement of the Case

by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or any overvaluation, or any misrepresentation whatever, either in a written application or otherwise," shall render the policy void.

"If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, or be incumbered by any lien, whether by deed of trust, mortgage or otherwise, or if the building insured stands on leased ground, it must be so represented to the companies and so expressed in the written part of this policy; otherwise, this policy shall be void."

The application was of the same date as the policy, and was signed by the assured, and contained a great number of printed questions and written answers, and so much of it as is material to be stated was as follows:

"The applicant will answer particularly the following questions, and sign the same, as descriptive of the premises and forming a part of the contract of insurance and a warranty on his part:"

"What material is used for lubricating or oiling the bearings and machinery? Tallow, lard and machine oils.

"Will you agree to use only lard and tallow, or sperm and lard oils for lubricating? Lard and tallow, or lard and machine oils.

"Is the machinery regularly oiled, and by whom? Yes, by regular attendant.

"Will you agree to keep all the bearings and machinery properly supplied with oil? Yes."

"Is smoking or drinking of spirituous liquors allowed on the premises? No."

"Is there any incumbrance on the property? Yes.

"If mortgaged, state the amount. $3000."

"The subscriber hereby covenants and agrees to and with the said companies that the same is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risks of the property to be insured, and said answers are considered the basis on which insurance