the Transfer ported and hard-aported, and so threw herself directly. across the path of the Lansing, which immediately upon hearing the Transfer's single whistle stopped, reversed, and gave the alarm. The steamer was struck substantially on the deep water range; she did not change her course, and indeed scarcely had time so to do. The reason for this misunderstanding of signals is largely found in the insufficiency of the Transfer's lookout. The master of that tug had a deckhand on top of the cars on the starboard float. His duties seem to have been for the most part to announce "small craft, gasoline boats, and rowboats." He must have seen the Lansing; should have heard her whistles and understood them and reported them. But (according to his captain) the only attention he paid to the steamer was, after the Transfer had put her wheel hard aport, to ejaculate, "I wonder where that fellow thinks he is going." [2] We have recently insisted upon the necessity of a lookout, and a good one, even in the daytime. Delaware, etc., Co. v. Central R. R. Co., 238 Fed. 560, 151 C. C. A. 496). The rule is equally to be insisted upon here, for it can hardly be doubted that a vigilant lookout would have announced the Lansing's signal which the master (who was solely in charge of a flotilla of the weight and capacity of a large ocean steamer) might easily misinterpret, as he unquestionably did. Finding that the situation of these vessels when they were between a quarter and a half a mile apart was such that the Lansing had the Transfer on her starboard bow on a course which made a passing starboard to starboard proper within the meeting rule, it is ordered that the decrees below be reversed, with one bill of costs to the appellants in this court, and the cause remanded, with directions to dismiss the libel against the Lansing and sustain that against the Transfer No. 15. (243 Fed. 177) HANSEN et al. v. UNIFORM SEAMLESS WIRE CO. No. 1259. 1. CORPORATIONS 308(6)-OFFICERS-SALARY-AMOUNT. Where the general manager of a corporation abandoned all claim for salary at the rate fixed in a written contract for ten years, and it was understood between him and the treasurer of the corporation that the sums paid to him as salary should be in full for his services, in view of the corporation's financial condition, he had no claim against the company for additional salary, either on express contract or under a claim in quantum meruit. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1341, 1342.] 2. FRAUDS, STATUTE OF 44(3), 139(1)—CONTRACTS OF EMPLOYMENT-TIME OF PERFORMANCE. The agreement under which such general manager was paid was not within the statute of frauds, as it did not cover any fixed period, and was fully executed by both parties. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 66, 334, 337.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 3. BANKRUPTCY 60-ACTS OF BANKRUPTCY-APPLICATION FOR RECEIVER SHIP. The directors of a foreign corporation voted to apply for a receivership or for bankruptcy, and a committee was appointed with power to act; but no action was taken pursuant to the vote, and the application for a receiver was made by four stockholders, three of whom were creditors, under Gen. Laws, R. I., c. 213, § 27, as amended by Laws 1909, c. 424, which authorizes the appointment of a receiver for a foreign corporation on the petition of any stockholder or creditor. Held, that the corporation did not apply for a receiver, thereby committing an act of bankruptcy, especially as, under the statute, the application could not have been made by the corporation. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 80.] Appeal from the District Court of the United States for the District of Rhode Island; Arthur L. Brown, Judge. Petition by Charles E. Hansen, doing business as the Platinide Company, and others, to have the Uniform Seamless Wire Company adjudicated a bankrupt, in which Conley & Straight intervened. From a decree dismissing the petition (235 Fed. 616), the petitioning creditors appeal. Affirmed. Peter C. Cannon, of Providence, R. I. (James T. Egan, of Providence, R. I., on the brief), for appellants. E. Butler Moulton and J. Jerome Hahn, both of Providence, R. I. (Mumford, Huddy & Emerson, Hahn, Joslin & McCanna, and Charles C. Mumford, all of Providence, R. I., on the brief), for appellee. Before DODGE and BINGHAM, Circuit Judges, and HALE, District Judge. BINGHAM, Circuit Judge. This is an appeal from a decree entered in the United States Court for the District of Rhode Island in favor of the respondent, the Uniform Seamless Wire Company, a Maine corporation, doing business at Providence, and Conley & Straight, interveners, dismissing a petition brought by Charles E. Hansen, doing business under the name of the Platinide Company, William H. Miller & Sons, J. M. Anthony & Co., and Joseph T. Boland, all of Providence, asking to have the Uniform Seamless Wire Company declared a bankrupt. In the petition it was alleged that the petitioners were creditors of the Wire Company, whose claims amounted to more than $500, and that the company had committed an act of bankruptcy, in that, being insolvent, it had, on the 7th day of March, 1916, applied for the appointment of a receiver under the laws of the state of Rhode Island. In answering the petition, the respondents denied that the Wire Company had committed an act of bankruptcy, and that Boland was a creditor of the company. If Boland was not a creditor, the claims of the other petitioners did not equal the requisite jurisdictional amount. The application for the receiver alleged that the corporation was insolvent, in that it was unable to pay its debts as they matured. In re William S. Butler & Co., Inc., 207 Fed. 705, 125 C. C. A. 223; s. c., Palmenberg v. William S. Butler & Co., 231 U. S. 752, 34 Sup. Ct. 322, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 58 L. Ed. 467; Maplecroft Mills v. Childs, 226 Fed. 415, 141 C. C. A. 245. In the District Court, Boland was found not to be a creditor, for the reasons: (1) That the contract purporting to be executed May 20, 1909, between the corporation and Boland, employing the latter as general manager of the corporation at a salary of $100 per week for the term of ten years from May 14, 1909, was not a contract in substance, but in form only, and was never assented to at any time by any person representing the corporation independently; (2) that Boland abandoned all claim for salary at the contract rate; (3) that Boland, by his failure. for about six years to assert his claim for salary at the contract rate, and by his knowledge that no indebtedness for the claim was stated as a liability of the corporation, was estopped as against all other stockholders and all creditors from asserting his claim against the corporation; and (4) that, as the corporation was without funds with which to conduct its business unless its preferred stock could be sold, Boland, as owner of substantially all the common stock, was interested in creating and maintaining a credit for the company, and, through an arrangement with the treasurer, accepted sums from time to time in payment for his services as general manager, and thereby foreclosed any right he may have had to recover a larger sum on quantum meruit. [1, 2] Various contentions are made; but we do not find it necessary to consider all of them, and in particular whether the court erred in holding that the contract of May 20, 1909, between Boland and the Wire Company was invalid, or in holding that Boland was estopped to assert his claim as a creditor, for it seems to us that the evidence fully warrants the finding of the court below that Boland abandoned all claim for salary at the rate named in the contract of May 20th, and that, in view of the financial condition of the company and his conduct in the premises, it was understood between him and Astle, the treasurer, that the sums paid to him as salary should be in full for his services, and that, having waived or abandoned his right to the salary stipulated for in the contract of May 20th, and agreed to accept. the sums paid him in satisfaction for his services, he has no claim against the company, either on the express contract or under a claim in quantum meruit. The agreement under which he was paid for his services was not within the statute of frauds, for it did not cover any fixed period and was fully executed by both parties. [3] We are also of the opinion that the petition could have been dismissed on the ground that the Wire Company, if insolvent, had not committed an act of bankruptcy as alleged in the petition. The allegation was that the corporation, being insolvent, on the 7th day of March, 1916, applied for a receiver of its property under the laws of the state of Rhode Island; and the question is whether the corporation, assuming it to have been insolvent within the meaning of the Bankruptcy Law (which it was not, if Boland was not a creditor), applied for a receiver. It appeared in evidence that, at a meeting of the directors of the corporation on March 6, 1916, it was voted to apply for receivership or for bankruptcy, and a committee, consisting of two of the direc tors, was appointed with power to act in the matter. No action appears to have been taken pursuant to this vote. The application for the receiver was made, not by the corporation, but by four of its stockholders, all of whom, but one, were also creditors of the corporation, pursuant to section 27, chapter 213, of the General Laws of the State of Rhode Island, as amended by chapter 424 of the Session Laws of 1909, which provides: "Whenever any corporation incorporated under the laws of any other state, and having an estate or effects in this state, is insolvent, * * the superior court may, upon the petition of any stockholder or creditor of such corporation incorporated under the laws of any other state, and upon such reasonable notice as the court may prescribe, appoint a receiver of its estate and effects in this state, and distribute the same in accordance with the equitable rights of the parties." As the Wire Company was a foreign corporation, it could not, under the provisions of this statute, make an application for a receiver, and the weight of the testimony is that the application in question was not made in behalf of the corporation, pursuant to the vote of the directors, but, as stated in the application, in behalf of the petitioners as stockholders and creditors of the corporation. The assignment of error relating to the refusal of the court below to reopen the case for further evidence raises no question of law. The petitioners, so far as the record discloses, had full opportunity at the trial to present their evidence. The case having been closed, it was discretionary with the trial judge whether he would thereafter reopen the same. Entertaining these views, we think the court below did not err in dismissing the petition. The decree of the District Court is affirmed, with costs to the appellee. (243 Fed. 180) WHITNEY v. NEW YORK SCAFFOLDING CO. (Circuit Court of Appeals, Eighth Circuit. April 2, 1917. Rehearing Denied May 16, 1917.) No. 4766. 1. PATENTS 328-CONTRIBUTORY INFRINGEMENT-SCAFFOLD. The manufacture and sale of the hoisting device of the Whitney patent, No. 1,114,832, held on the evidence not to constitute contributory infringement of the Henderson patent, No. 959,008, for a scaffold. 2. PATENTS 259-CONTRIBUTORY INFRINGEMENT-INTENTION. The question in contributory infringement is whether or not the defendant made or sold his machine or improvement with the intent or purpose of aiding another in the unlawful making, selling, or using of a third person's patented invention, and the burden is on the plaintiff to establish the affirmative of this issue. [Ed. Note. For other cases, see Patents, Cent. Dig. §§ 400-402.] 3. PATENTS237-INFRINGEMENT “MECHANICAL EQUIVALENT.” The term "mechanical equivalent," when applied to the interpretation of a pioneer patent, has a broad and generous signification, while its For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes meaning is very narrow and limited when it conditions the construction of a patent for slight improvement. [Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 374, 375. For other definitions, see Words and Phrases, First and Second Series, Mechanical Equivalent.] 4. PATENTS 165 CONSTRUCTION-LIMITATION OF CLAIMS. Where an inventor has pointed out and claimed in his patent the combination or improvement he claims as his invention, he disclaims and dedicates to the public any other combination or improvement apparent from his specification and claims, not a mere evasion of his own, [Ed. Note. For other cases, see Patents, Cent. Dig. § 241.] Appeal from the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge. Suit by the New York Scaffolding Company against Egbert Whitney. From an order granting an interlocutory injunction, defendant appeals. Reversed. See, also, 224 Fed. 452, 140 C. C. A. 138. Robert H. Parkinson, of Chicago, Ill. (Wallace R. Lane and George Mankle, both of Chicago, Ill., on the brief), for appellant. C. P. Goepel, of New York City, and Paul Bakewell, of St. Louis, Mo., for appellee. Before SANBORN and CARLAND, Circuit Judges, and RINER, District Judge. SANBORN, Circuit Judge. This is an appeal from an interlocutory decree based on letters patent No. 959,008 to E. H. Henderson, which enjoins Whitney, the defendant below, from manufacturing or selling scaffold hoisting devices like those shown in patent No. 1,114,832 issued to Whitney on October 27, 1914, on the ground that such manufacture and sale constituted contributory infringement of Claims 1 and 3 of the former patent, which read in this way: "1. A scaffold consisting in the combination of crossbeams, floor pieces extending between such beams, and a hoisting device associated with each end of each beam, each hoisting device consisting of a continuous U-shaped metal bar extending around the under side of and upward from the associated beam, and a hoisting drum rotatably supported by the side members of such bar." “3. A scaffold consisting of a plurality of U-shaped bars arranged in pairs, a crossbeam laid in and extending between each pair of such U-shaped bars, a floor laid upon said cross-beam, a drum rotatably supported between the upwardly extending side members of each of said U-shaped bars, and means for controlling the rotation of said drum.” This suit was originally brought against Whitney for an infringement of these claims by the manufacture and sale of hoisting machines like those described in letters patent No. 998,270 issued to him on July 18, 1911. In those machines Whitney used for his hoisting frames metal bars bent in the form of the inverted letter "U," hoisting drums rotatably supported on brackets on the vertical side members of the U-shaped bars, supporting rods of metal connected with and securely fastened to the lower ends of the vertical side members of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |