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the plan of invention, and is engaged in experiments to perfect it, no suggestions from an employee, not amounting to a new method or arrangement which in itself is a complete invention, is sufficient to deprive the employer of the exclusive property in the perfected improvement; but where the suggestions go to make up a complete and perfect machine, embracing the substance of all that is embodied in the patent subseqnently issued to the party to whom the suggestions were made, the patent is invalid, because the real invention or discovery belongs to the employee. If the suggestions or improvements made by the employee are ancillary to the plan and preconceived idea of the employer, such suggested improvements are in general to be regarded as the property of the party who discovered the original improved principle and may be embodied in his patent as a part of his invention. Suggestions from an employce made during the progress of experiments, in order that they may be sufficient to defeat a patent, must have embraced the plan of the improvement and must have furnished such information to the person to whom the communication was made, that it would have enabled an ordinary mechanic, without the exercise of any ingenuity and special skill on his part, to construct and put the improvement in successful operation."! And by Chief Justice Tindal in the following language: “It would be difficult to define how far the suggestions of a workman [engineer] employed in the construction of a machine are to be considered as distinct inventions by him, so as to avoid a patent incorporating them, taken out by the employer. Each case must depend upon its own merits, but when the principle and object of the invention are complete without it, it is too much that a suggestion of a workman employed in the course of the experiments, of something calculated more easily to carry into effect the conception of the inventor, should render the whole patent void." :

It is doubtful if an employer can claim or defend an invention first conceived and designed by an employee, even though the enıployee does acquiesce in his employer's application and permits him to go to the expense and trouble of obtaining a patent. When it is considered that the right to the patent is vested in the inventor, who must himself take the steps requisite to the grant of the patent, and that it is made necessary to the grant of a patent to an assignee that an assignment should be previously recorded and that the inventor should take oath to the specification, it can scarcely be doubted that, where the real author of the invention is any other person than the patentee, it is necessary that some contract capable of operating as an assignment should precede the issuing of the patent."

Such a case is to be distinguished from that of a workman who is employed and paid by one who has conceived the principle and plan of an invention, and who relies on the ingenuity of another to enable him to per

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1 Agawam Co. v. Jordan, 7 Wall 602. Allen v. Rawson, 1 Man. G. & S. 551.

• See U. S. Rev. Stat. 4888; Hogg o. Emerson, 6 How. (U. S.) 437.

fect the details and realize his conceptions. If under a plea of the general issue, evidence should be offered that the patentee was not, but that a workman was, the real inventor, could the action be maintained without showing a written assignment or a written contract that would operate as an assignment, even if the real inventor had acquiesced in the patentee's application.'

825. Instances of Invention between Employer and Employee.-A case in point was one where a husband was experimenting with turkeys' feathers, seeking to make them pliable and suitable for dusters; his wife suggested that he split them, which he did, and which was practically the solution of the whole difficulty; it was held that he was entitled to the patent. This case, however, has been criticised by Mr. Meriam in his book on Patentability of Inventions, p. 713, where he expresses the opinion that the wife was the true inventor, or perhaps the two were joint inventors.'

It has been held that an engineer may recover additional compensation for extra skill and labor bestowed in designing and making plans, if such extra work was not embraced in the original contract of employment nor in the duties thereby imposed. Thus when a contractor employs a person to superintend the construction of an engineering structure, and requests him to use certain ideas and means for its rapid and economical construction, which the employee had previously designed ai I planned even though at the contractor's request, the contractor is liable to the employee for the preparation of the plans and the extra time devoted during his employment to perfect and complete them.'*

It has been held that an employee, paid by salary or wages, who devises an improved method of doing his work, using the property or labor of his employer to put his invention into practical form, and assenting to the use of such improvements by his employer, cannot by taking a patent upon such invention recover a royalty or other compensation for such use. The fact that the employee made the invention out of working hours, and that he used neither the property of his employer, the government, nor the services of its employees in conceiving, developing, or perfecting the inventions, is immaterial, if the cost of preparing the patterns and working draw. ings of the machines, as well as the cost of constructing the machines that were made in putting the invention into practical use, was borne by the government, the work being also done under the immediate supervision of the employee.

It is submitted that the rights of the employer in the improvements made amounts to a mere license, and that the inventor could enjoin any other party from making use of his inventions.

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1 Allen o. Rawson, 1 Man G. & S. 551. : Dull v. Bramhall, 49 Ill. 364 [1868):

? National Feather-Duster Co. 0. Hib- 4 Gill v. United States, 16 Sup. Ct. Rep. bard, 9 Fed. Rep. 558 [1881).

322.
* See Sec, 810, supra.

CHAPTER XXX.

LIABILITY OF ENGINEER OR ARCHITECT AS A PROFESSIONAL MAN.

MUST BE COMPETENT, SKILLFUL, AND MUST EXERCISE DUE CARE.

826. Engineer's or Architect's Employment Similar to that of Other Professional Men.—An engineer's or architect's employment is one which requires care and skill, and a contract for his services includes a reasonable degree of skill and knowledge of his profession.

He must practice under the same rules and principles that apply to attorneys and physicians and to other professional men. His liability must, of course, be determined by his contract of employment, which, as before stated, is seldom set forth with any degree of certainty. Notwithstanding, if a person

. holds himself out to the public as possessing professional, peculiar, or competent skill, or offers his services in a professional capacity, which from its nature implies the possession of such skill, he will be liable to those who employ or rely upon him in that capacity and upon that supposition for the exercise of such skill.' The fact that the services are gratuitous does not relieve him; he is liable to the same extent as though the services were rendered for a reward."

827. Undertaking of a Person Who Offers His Services in a Professional Capacity.-Judge Cooley in his book on Torts gives the law as laid down by the New Hampshire courts, that a person who offers his services to the community generally or to an individual for employment in any professional capacity as a person of skill, contracts with his employer: (1) “ That he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by the professors of the same art or science, and which is ordinarily regarded by the community and by those conversant with the employment as necessary and sufficient to qualify him to engage in such business”;' (2) “that he will use reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge to accomplish the purpose for which he is employed; he does not undertake for extraordinary care or extraordinary diligence any more than he does for uncommon skill”;' (3) “in stipulating to exert their skill and apply their diligence and care, the medical and other professional men contract to use their best judgment.”

i Harmer o. Cornelius, 5 C. B. (N. S.) 3 Cooley on Torts 649. 236 (1858).

4 Leighton v. Sargent, 27 N. II. 460 ? Semble, People v. Campbell, 82 N. Y. (1853). 27 (1880).

This is believed to be an accurate statement of the implied promise. The practitioner must possess at least the average degree of learning and skill in his profession prevailing in the part of the country in which his services are offered to the public, and if he exercises that learning and skill with reasonable care and fidelity, he discharges his legal duty.'

828. That the Employee Possesses Skill is Implied from the Undertaking to Act. — The same rule applies to any other case requiring special or peculiar skill. If an agent undertakes, for a reward, the performance of such a duty, without possessing a reasonable and competent degree of skill, in which fact the principal is ignorant, he will be liable to the principal for the loss or injury resulting therefrom.' If, however, the principal had notice or knowledge of the agent's incapacity at the time of the emplos. ment, the agent will not be liable. No warranty of skill will be implied when the principal knows that no such skill is possessed. If he sees fit to employ an unskilled person he must be content with unskilled work; and the same is true where the agent is employed out of the line of his employ. ment. If the principal sees fit to employ an auctioneer to conduct his case in court, or a surveyor to do his engineering, he cannot complain of his attorney's want of skill, unless the latter expressly warranted that lie possessed it.

829. Absolute Accuracy or Success Not a Test of Skill or Capacity of a Man in His Professional Capacity.- Absolute correctness in performing engineering operations cannot be made the test of the amount of skill required. Without a special contract, an architect or engineer does not warrant the perfection of his plans nor of the structure, nor its safety, nor its durability, any more than a physician or surgeon warrants a cure, or a lawyer guarantees the winning of a case.' One who undertakes to make a map of a certain locality must furnish a map of substantial accuracy, but in the absence of a guaranty, it need not, it seems, be absolutely accurate.'

In the absence of an express agreement a physician does not even insure

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Cooley on Torts 649: Leighton v Sargeni, 27 N. H. 460 (1853]: Peck v. Huichinson (Iowa), 55 N. w. Rep. 511; Hewitt v. Eisen bari (Neb.), 55 N. W. Rep. 252.

? Wilson o. Brett, 11 M. & W. 113; Stan: ton o. Bell, 2 Hawks (N. C.) 145; Varnum v. Mariin, 15 Pick. (Mass.) 440; Stimpson 0. Sprague, 6 Greenl. (Me.) 470; Crooker v. Hutchinson, 1 Vt. 73; Holmes 0. Peck, 1 R. I. 242; Grandis 0. Branden, 5 Duy (Conn.) 260; Howard v. Grover, 28 Me. 97; Ayers v. Russell, 50 Hun 283 (1888). where a patient was adjudged insane; and see also Lange v. Benedict, 73 N. Y. 35, and cases cited.

• Kirtland 0. Montgomery, 1 Swan.

(Tenn.) 452; McDonald v. Simpson. 4 Ark. -23; Wilsoh o. Brett, 11 M. & W. 113; Shipman v. Stale, 43 Wis. 381; Money. penny o. Hartland, 1. Car. & P. 352; 8. C.. 2 C. & P. 378; Harmer v. Cornelius, 5 C. B. (N. S.) 236 ; McFarland o. McClees (Penn.) 5 Atl Rep. 50.

Story on Bailment. $ 435; Felt e.
School District, 24 Vt. 297.

5 Meechem on Agency, $ 496.
6 McCarthy v. Bauer 3 Kan. 237.

Shipman 0. Stale, 4:3 Wis. 381; Leigh. ton o. Sargent, 27 N. H. 460 (1853) : and see Small 0. Howard, 129 Mass, 131 (1880).

8 Muusell 0. Baldwin, 56 Codd. 523 (1888).

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that he will benefit his patient.' He is not responsible for want of success, unless it is proved to result from want of ordinary skill, or want of ordinary care and attention; nor is he presumed to engage for extraordinary skill or for extraordinary diligence and care; nor is he responsible for errors of judgment or mere mistakes in matters of reasonable doubt and uncertainty. He is required to exercise only that degree of skill which is ordinarily possessed by members of his profession.' He is charged with the consequences of mere errors only when such errors could not have arisen, except from want of reasonable skill and diligence. To recover for services he need not prove their value to the patient, but only the ordinary and reasonable value of like services.' If a man assumes an unusually difficult or hazardous undertaking he is thereby required to exercise extraordinary care, diligence, and skill. It was so held of a contractor in the performance of his work, and should apply with equal propriety to a professional man, as an engineer, or an architect."

830. Determination of Skill Possessed or Want of Skill.-How this reasonable degree of skill is to be deterinined is a question of importance. There are cases where its presence or absence is so palpable and unquestion. able that the court may so declare as a matter of law. In cases where the facts are controverted, and the existence or non-existence of certain of them may fairly be presumed to affect the mind in any given exigency, the whole ques. tion of the existence of the facts, and the conclusions to be deduced from them is to be determined by the jury or other tribunal, by reference to all the circumstances of the case, including the subject-matter and other objects of the agency, and the known character, qualifications, and relations of the parties. The party asserting the negligence of the architect, or his want of skill, must prove it.'

831. Engineer's or Architect's Undertaking when He Accepts or Solicits an Engagement.-A professional engineer or architect undertakes and agrees then to perform several conditions when he accepts an engagement, viz.: (1) That he has the requisite skill and knowledge; (2) that he will use reasonable care and diligence in the exercise of his skill and the application of his knowledge; (3) that he will use his best judgment; (4) and, there should be added, the obligation which rests upon every person occupying a position of trust, as that of an architect or engineer, that he will be honest. Liability will attach for a failure to perform any one of these conditions if any injury result from such neglect or failure, and these conditions need not be the sub

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'Styles o. Tyler, 64 Conn. 432. 'Leighton ö. Sargent, 27 N. H. 460 (1853)

• Uiley v. Burns, 70 III. 162 (1873); in his locality, Whitesell v. Hill (Iowa), 66 N.W. Rep. 894; Chapman v. Walton, 10 Bing. 63.

*Leighton 0. Sargent, 27 N. H. 460 (1853); Shipman v. Štate, 43 Wis. 381.

Mayor o. Bailey, 3 Denio 433; semble, Judge Cooley, in 45 Mich. 153,

6 Pennsylvania R. R. Co. o. Ogier. 35 Pa. St. 60; Hubert v. Aitken, 15 Daly 237; Gill v. Midleton, 105 Mass. 477; Eddy v. Livingston, 35 Mo. 493; Grant v. Lud. low, 8 Ohio St. 1; Meechem on Agency, $ 500; but seo Vigeant v. Scully, 20 Ill. App. 437.

"Gillman v. Stevens, 54 How, Pr.(N. Y.) 207.

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