ditions, was careful of its phraseology; and inasmuch as the familiar expression in similar policies theretofore existing used the language 'standing, being, or riding,' there is some significance in the omission of the words 'standing or being,' in favor of the interpretation the court is now giving to the word 'riding. I conclude the subject of the interpretation of the conditions about riding on the platform by saying to you: If you believe from all the testimony in this case that immediately before and at the moment Locke's body, designedly or undesignedly, left the train, he was occupying the platform, in the sense of 'riding' on it, as above defined, his administrator cannot recover; but if you believe from all the evidence that at that moment he was upon the platform temporarily only, and for any necessary purpose, and not sufficiently prolonged in the occupancy to amount to riding' on it, such temporary occupancy would not be within the prohibition of the policy."

We perceive no error in this charge. Applied to the testimony in this case, the jury should have found for the defendant, had they reached the conclusion that the deceased was occupying the platform for the purpose of riding thereon, but that a temporary occupation of the platform, for a necessary or proper purpose, did not mean riding upon it in the sense of the policy. We think this is the true rule. We think the charge in this respect was as liberal as the defendant could properly require.

Various exceptions are taken to certain phraseology in the charge, which we do consider it necessary to review. The defendant, to have avoided a recovery in this case, in the light of the testimony, must have established either that death was the result of suicidal intent of the decedent at the time of his injury, or was the result of riding on the platform in violation of the terms of the policy. We do not discover any testimony in the case tending to show that he voluntarily exposed himself to any known danger, unless it was in his occupation of the platform. The charge is unusually ample, and we think the questions involved were submitted to the jury in accordance with the rules of law. Finding no error in the record, the judgment is affirmed, with costs.

(100 Fed. 590.)

KEENE MACH. CO. v. BARRATT et al.

(Circuit Court of Appeals, Seventh Circuit. March 22, 1900.)

No. 632.

1. APPEAL-REVIEW-ACTION TRIED WITHOUT JURY.

In reviewing a judgment rendered in an action at law tried by stipulation without a jury, the one question, on a special finding, is of the sufficiency of the facts found to support the judgment; and where, upon special findings upon different issues, judgment has been given in favor of the defendant if the finding on one issue is unassailable, and sufficient to support the judgment rendered, no error of law or fact in respect to another issue can be deemed harmful, and no statement of a legal conclusion, however wrong, can affect the judgment, if it is right upon the facts found.

2. PATENTS-LICENSE-SUBSEQUENT ACQUIRING OF TITLE BY LICENSOR-RELA

TION.

Where, at the time of the execution of a contract, by which plaintiff assumed to grant to defendants the right to manufacture and sell a pat

ented device within a certain territory, and defendants agreed to manufacture and sell a certain number each year, and to pay plaintiff a royalty thereon, the plaintiff had no title to the patent, its subsequent acquiring of such title did not inure to the benefit of the defendants by relation as of the date of the contract, so as to render them liable in damages for a failure to manufacture and sell the patented article at a time when they had no legal right to do so.

8. CONTRACT-REQUISITES AND VALIDITY-INCOMPLETE EXECUTION.

Where a contract, containing a provision requiring it to be countersigned and approved by the officers of a corporation, which was one of the parties thereto, before it should be binding on either party, after having been signed on behalf of the corporation was materially altered by its agent before it was signed by the other party, and was never thereafter submitted to the officers of the corporation for their approval, it did not become effective, in the absence of proof that such requirement was waived.

In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.

The declaration is in assumpsit, and charges a failure by the defendants, Barratt and Gormley, to erect seventy-five fuel economizers and smoke consumers under certain letters patent of the United States and of Canada, and to pay a stipulated royalty thereon to the plaintiff, the Keene Machine Company, according to a contract bearing date August 11, 1894, which contains the following provisions: "First. Edgar G. Barratt and James H. Gormley shall pay Keene Machine Company a royalty of twenty per cent. of the following mentioned schedule prices on each and every Keene Fuel Economizer & Smoke Consumer sold and erected under above-mentioned patents, or caused to be sold and erected by them under said patents, within the territory above mentioned. In case full payment cannot be collected for devices sold and installed, after due diligence has been exercised in making said collections, the amount of royalty paid to Keene Machine Company shall then be proportioned to the amount collected from the parties purchasing said device. The schedule price upon which the royalty is based is as follows: ⚫ *. Second. Edgar G. Barratt and James H. Gormley shall sell and erect and pay royalty, or cause to be sold or erected and royalty paid, in the territory named above, each year, not less than seventy-five devices, under the above-named patents. A failure to thus erect and pay royalty on seventy-five devices shall be a forfeiture of this contract, at the option of the Keene Machine Company. * * * Copies of all contracts shall be furnished the Keene Machine Company at their offices at Dallas, Texas. This contract signed in duplicate, and to be countersigned and approved by the officers of the Keene Machine Company at Dallas, Texas, before becoming binding on either party. Witness our hands this 11th day of August, 1894. The acceptance of this contract by both parties cancels the previous contracts made with Variety Mfg. Co. and Exbaust Ventilator Co., and is subject to the approval of George Taylor."

The pleas are numerous, including the general issue, nul tiel corporation, no consideration, non est factum in different forms, no title to the patents in the plaintiff, and delivery of the contract to take effect on conditions not fulfilled, to the last of which a demurrer was overruled. Replications were filed denying conditional delivery; averring that the contract was binding on the parties from its date; that from August 11, 1895, to August 11, 1896, the defendants had exclusive title, and the benefit and use of the patents and of the patented device under the contract declared on; that they had not rescinded the contract, and had not reconveyed the title. By written agreement, the case was tried without a jury, and the court made the following special finding of facts: First. The plaintiff was a corporation incorporated under the laws of the state of Texas, located at Dallas, Tex., and having a board of five directors, and the following officers: A president, a vice president, a secretary, and a treasurer. Second. The instrument sued on identified as set out in the declaration. Third. That the proposed contract set out in the declaration, excepting as to alterations hereinafter found, was prepared and signed on behalf of the plaintiff without the corporate seal at Dallas, Tex., and after alterations was signed

at Chicago, Ill., by the defendants on October 9, 1894, and approved by George Taylor, the agent for the plaintiff, and contained the following provision: "This contract signed in duplicate, and to be countersigned and approved by the officers of the Keene Machine Company at Dallas, Texas, before becoming binding on either party." Fourth. That the proposed contract was neither countersigned nor approved by the officers of the plaintiff thereafter or at any time, and was therefore not completely executed between the parties. Fifth. That, after the signing of the contract on behalf of the plaintiff, the instru ment was materially changed by the agent, Taylor, to wit, by the addition of the name "Ohio" in the grant of states, and the addition of the following proposition, viz.: "A failure to thus erect and pay royalties on 75 devices shall be a forfeiture of this contract, at the option of the Keene Machine Company,"— all without authority from or ratification by the plaintiff beyond the following facts, namely: The correspondence which took place between the parties of this suit thereafter; a letter to the plaintiff, dated December 4, 1894, inclosing a letter from the Nebraska Cereal Mills; and a letter of the plaintiff of February 8, 1895, inclosing a letter it had written to E. A. Snow, superintendent of the Jarden Brick Company, Philadelphia, Pa. Sixth. The acts and correspondence on the part of the defendants constituted no entry upon the performance of the contract, and they received no benefits or advantages thereunder. Seventh. At and prior to the signing of the proposed contract in suit there was a parol agreement between the parties that it should not have effect as a contract unless the defendants were satisfied with the working of five devices then being installed, viz.: Two devices in the plant of the Shellabarger Mill & Elevator Company, at Decatur, Ill.; one device in the plant of the New York Suburban Water Company, at Mt. Vernon, N. Y.; one device in the plant of Bryan Bros., at Chicago, Ill.; and one device in the plant of William McCoy, at Chicago, Ill.; and unless the results of these four or five plants were in accordance with the previous statements of George Taylor to the defendant Edgar G. Barratt, viz.: "That the device, applied to an ordinary boiler plant, would eliminate ninety per cent. of the smoke, increase the boiler capacity at least fifty per cent., and reduce the cost of fuel at least ten per cent.; that it was flexible in its capacities; that it could be readily applied to any boiler; that it was low in price, and did not disturb to any extent the operation of the plant while it was being put in; did not require any skilled workman to operate it; did not require any skilled engineers to erect it, as it was simply a matter of a combination of piping, that could be made by any sheet-iron worker, and an engine which could be set up and connected to any blower, and after it was set up would require no skilled attention." Eighth. Each and every one of the devices referred to by the parol agreement (save that of Bryan Bros., at Chicago, Ill., which device was not fully installed, and by agreement and consent of all parties was subsequently abandoned) was constructed under the supervision of the plaintiff, or of persons approved and suggested by the plaintiff, and failed to meet the requirements thereof, and, after reasonable efforts by all parties to make the same effective, the requirements were not fulfilled, and each was rejected and abandoned. Ninth. That there was no misrepresentation, fraud, or concealment in procuring the contract which was relied upon by the defendants in entering therein. Tenth. The legal title to the patents which were the subject of the contract in suit was vested in M. W. Keene, L. R. Henkle, A. F. Hardie, and W. C. Howard, as joint owners when the contract was signed and when the action was commenced (such owners, together with J. T. Howard, constituted the stockholders of the plaintiff corporation at its organization), and was not vested in the plaintiff until May 4, 1898, when such four owners executed a conveyance thereof to the plaintiff pending this action. Eleventh. Upon the further issues formed by the pleadings as to the invalidity of the patents which are the subject-matter of the instruments sued upon, either for, want of utility or want of novelty of the devices described therein, under which testimony was received subject to objections, no finding is made and no conclusions are stated, for the reason that the findings upon the other issues are regarded as decisive of the rights of the parties to this action. Twelfth. That there is no evidence that the officers of the plaintiff had notice, except such constructive notice as might arise from the knowledge of George Taylor, their agent, of the existence of the parol agreement spoken of in the seventh finding.

And thereupon the court found the following conclusions of law: First. That the instrument set out in the declaration never became operative as the contract of the parties. Second. That the said instrument, if it could be construed as being properly executed and becoming operative as a contract, was a contract for the purchase of an interest in the patents described therein, as distinguished from a mere license to use the patented device. Third. That the said instrument, if it could be construed as being properly executed and becoming operative as a contract, was a Texas contract, and as to its execution would be controlled by the laws of the state of Texas. Fourth. That the plaintiff cannot maintain its action for want of title to the patents. Fifth. That the defendants are entitled to judgment. Thereupon the plaintiff submitted a number of findings of fact and of law, which the court refused to adopt. Wm. A. Hamilton, for plaintiff in error.

J. N. Jewett, for defendants in error.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

WOODS, Circuit Judge, after stating the case, delivered the opinion of the court.

The assignment of errors contains many specifications which are unavailing. They are to the effect that the court erred in its several findings of fact, in refusing to make findings requested, in finding matters of evidence instead of the ultimate facts, and in finding as fact matter of law. The first five specifications are objectionable, for the reason that they do not set out, as required by rule 11 of this court (32 C. C. A. lxxxviii., 90 Fed. cxlvi.), the substance of the evidence referred to, and are unimportant for the reason that the court either based no finding on that evidence or found in favor of the plaintiff. As pointed out in Wright v. Bragg, 37 C. C. A. 574, 96 Fed. 729, the only recognized exception to the statutory rule which in common-law cases tried without a jury limits the review, on writ of error, to "rulings of the court in the progress of the trial," and to the question "of the sufficiency of the facts found to support the judgment," is that “a party may insist upon a finding in his favor on the ground that there is a total lack of evidence to support a contrary finding, or, if he have the burden of the issue, on the ground that the evidence in his favor is adequate, unimpeached, and without conflict or uncertainty." See, also, World's Columbian Exposition v. Republic of France, 38 C. C. A. 483, 96 Fed. 687. But, to raise such a question as one of law, the exception or motion must be specific to that effect, distinguishing it from a question of the weight of evidence. Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862. If a verdict or finding, whether general or special, be defective on its face, or on the face of the record, the remedy, it is well understood, is a new venire; and so, if matter of law is found as matter of fact, the fact not being found, or if evidentiary facts. are found, and the ultimate fact not found, the remedy must be sought by a motion for a venire de novo. It must be remembered, however, that silence in a special verdict or finding upon any issue or question of fact is equivalent to an express finding thereon against the party on whom was the burden of proof. If on any issue there is a finding of the ultimate fact and also of evidentiary

facts, the latter will be regarded as surplusage, not affecting the validity of the verdict or finding as an entirety. "The one question upon a special finding or verdict," it was said in Lamson v. Beard, 36 C. C. A. 56, 65, 94 Fed. 38, "is of the sufficiency of the facts found to support the judgment.' In determining that question, of course, every relevant and material fact found must be considered, and every irrelevant and immaterial fact rejected, and when the fact has been excluded from consideration there can remain no harm from the error of admitting the evidence by which it was established." By the same principle, when upon a special finding upon different issues judgment has been given in favor of the defendant, if the finding on one issue is unassailable, no error of law or fact in respect to another issue can be deemed harmful. Under the statute it is not necessary, and probably was not contemplated, that a special finding should be followed by a statement of more than a general legal conclusion that the plaintiff or the defendant is entitled to judgment, and probably the mere entry of judgment would be enough. To say the least, no statement of a legal conclusion, however wrong, can be deemed important, if the judgment rendered is right upon the facts found.

The finding before us contains several propositions, each of which, if unassailable on any of the grounds urged, is sufficient to support the judgment rendered. They are, in substance, that the contract declared on never came into force, because "neither countersigned nor approved" by the officers of the plaintiff; that prior to the signing of the contract there was a parol agreement that it should not take effect as a contract unless the defendants should be satisfied with the working of devices, constructed according to the patents, then being installed, which on trial failed to work satisfactorily; and that the legal title to the patents which were the subject of the agreement was in four individuals, who were stockholders of the plaintiff corporation, and was not vested in the corporation until May 4, 1898, when, pending this action, the owners. executed a conveyance of the title to the plaintiff.

Touching the last proposition, the plaintiff in error contends that the after-acquired title inured, by force of the contract, to the benefit of the defendants, and by relation made them owners from the date of the execution of the contract, and therefore liable for a failure to perform their undertakings. Assuming, without deciding, that the title acquired by the plaintiff passed by force of the contract to the defendants, we cannot agree that the defendants, while not possessed of the title, became liable, by relation, for the failure to do things which at the time of the failure they had no legal right to do. The doctrine of relation is equitable in its nature, and is invoked for the purpose of accomplishing right or defeating wrong, but never for the purpose of inflicting injury, by making wrong. ful anything which when done was rightly done. Bragg v. Lam port, 38 C. C. A. 467, 96 Fed. 630, and cases cited. In Felton v. Smith, 84 Ind. 485, it was said: "The fiction of relation is allowed force when equity requires that the last of a series of acts shall be carried back to the first or original act, for the purpose of shut