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Statement of the Case.
charged on the one side of his account with the company nor credited on the other. These accommodation acceptances were not due on the 28th of February, 1881, and have never been paid by the company. Graetfe was not bound to give credit for them to the company until the company had paid them and surrendered them to him.
As to the three acceptances, amounting to $8000, they formed part of the acceptances of which the company had the benefit, and, while the plaintiff holds those acceptances against Graeffe, it cannot take from him, or from Mrs. Graeffe, the property which he held as security against them. Its position is no better than that of the company would have been, and the company could not have deprived Graeffe of the goods without discharging his obligation on those particular acceptances. Moreover, even regarding the $8000 of acceptances as surrendered and cancelled, and deducted from the $54, 215.58, there is left $46,215.58, which amount exceeds the value of the goods transferred to Mrs. Graeffe.
FRENCH V. CARTER.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
No. 68. Argued November 12, 1890. — Decided November 24, 1890.
Letters patent No. 244,224, granted to Hamline Q. French, July 12, 1881,
for an improvement in “roofs for vaults” are invalid, in view of the state of the art, for want of patentable invention, it requiring only mechanical skill to pass to the patented device from what existed before, the question being one of degree only, as to the size of the com
ponent stones. A prior foreign publication is competent as evidence in regard to the state
of the art, and as a foundation for the inquiry whether it required invention to pass from a structure set forth in the publication to the patented structure.
IN EQUITY. The case is stated in the opinion.
Opinion of the Court.
Mr. George H. Fletcher, (with whom was Mr. L. B. Bunnell on the brief,) for appellant.
Mr. James W. Perry, (with whom was Mr. Philip J. O'Reilly on the brief,) for appellees.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is a suit in equity, brought in the Circuit Court of the United States for the Southern District of New York, by Hamline Q. French against Oliver S. Carter, George Mark, and Milton H. St. John, to recover for the infringement of letters patent No. 244,224, granted to the plaintiff July 12, 1881, for an improvement in “roofs for vaults.” Issue was joined, proofs were taken, and the case was heard by Judge Shipman, resulting in a decree dismissing the bill, from which the plaintiff has appealed. The opinion of Judge Shipman is reported in 25 Fed. Rep. 41.
The specification, claims, and drawings of the patent are as follows: “My improvements relate to the construction of roofs for vaults, mausoleums, and structures of similar character, built of stone and intended for burial purposes; and the object of my invention is to obtain a building without vertical joints, and one held together and locked at the roof, so that by the locking and the weight of the roof the structure shall be made as enduring as the material of which it is built. My improved roof consists of the front and rear gable-stones, the roof-stones, which are continuous from one gable-stone to the other at each side, and held to the gable-stones by mortise and tenon or equivalent connections, and the cap-stone, which is formed with a rabbet to lap upon the roof-stones and rests upon the gables, by which construction the stones forming the complete roof are securely locked, and without possibility of dislocation without being raised bodily upward.
“My invention is shown in the accompanying drawings, forming part of this specification, wherein Fig. 1 is a front elevation, partially in section, of a vault constructed in accordance with my invention. Fig. 2 is a plan view of the same,
with the cap-stone partially removed. Similar letters of reference indicate corresponding parts. The side walls, a a, of the vault are laid up in the usual manner. A A are the gablestones, B B the roof-stones, and C the cap-stone. The gables A are each a single stone of any required shape and size, and
of a length sufficient to connect the roof-stones. They are formed, upon each of their upper surfaces, with tenons b. The roof-stones B are also each of a single piece in length, or continuous from one gable-stone to the other.
These are formed with mortises for receiving the tenons. The cap-stone C is a single piece, and of a length to rest upon the gablestones A at its ends. It is formed to lap at each side upon the stones B, on the whole or any portion of its length. The stone C is to be lowered to place after the stones B are set, and, as will be seen, completes the roof and locks the parts together. This stone C is in practice of great weight, which weight tends entirely to hold the structure together, and, there being no vertical joints to spread open, there can be no disrupțion or displacement by ordinary means. The space at the sides, between the stones A, is filled out by stones c set upon the side walls. The roof at each side of the cap-stone is to be formed of one or more roof-stones B, each being continuous from one gable-stone to the other, and locked, as described. The roof may also be made flat, curved, or inclined. In place of using the mortises and tenons shown, dowel-pins or other equivalent devices can be used for locking the roof-stones. I do not limit myself in that respect. Having thus described my invention, I claim as new and desire to secure by letters patent
“1. A roof for vaults and similar structures, consisting of the continuous roof-stones B B, gable-stones, A, connecting and locked to the roof-stones, and the cap-stone, C, lapping upon the roof-stones, substantially as shown and described.
“2. In roofs for vaults and similar structures, the combination of continuous roof-stones B B and gable-stones A A, connected and locked by mortises and tenons, or equivalent devices, substantially as shown and described.”
There was put in evidence in the case volume 13, with plates 39 to 44, both inclusive, of a public work, published in France, in 1855, called “ Revue Générale de l'Architecture et de Travaux Publics,” containing a description and illustration of a monument erected in 1847, as a place of burial for the family of Alc. Billaud. This very imperfect translation of the text is
Opinion of the Court.
found in the record : “ Above this ordonnance extends an entablature, on which is supported the two sloping sides of the roof, which finish the edifice.
The entablature is composed of three stones, hollowed out so as to form a species of vault, which masks the size (édicule); and these stones joined together by rebates, are bound, and, as it were, tied (hooped) together by the two thick slabs of stone which cover their sloping sides, by means of the hollow made on the lower sides of the former (the slabs), in order to clamp the projections retained on the stones of the vault. These stones are, in their turn, tied together by the ridge which surmounts the building."
Two drawings on one of the plates are as follows, one being a cross-section and the other a longitudinal section :