Opinion of the Court.

is left to his remedy for damages. It is also clear that a patentee is entitled to recover the profits that have been actually realized from the use of his invention."

In Garretson v. Clark, 111 U. S. 120, 121, this court quoted with approval the statement of the rule made in the court below by Mr. Justice Blatchford: "The patentee must in every case give evidence tending to separate or apportion the defendant's profits and the patentee's damages between the patented feature and the unpatented features, and such evidence must be reliable and tangible, and not conjectural or speculative."

Tilghman v. Proctor, 125 U. S. 136, 146, is an important case, in which many of the earlier cases were reviewed, and it was there said: "The infringer is liable for actual, not for possible, gains. The profits, therefore, which he must account. for are not those which he might reasonably have made, but those which he did make, by the use of the plaintiff's invention; or, in other words, the fruits of the advantage which he derived from the use of that invention, over what he would have had in using other means then open to the public and adequate to enable him to obtain an equally beneficial result. If there was no such advantage in his use' of the plaintiff's invention, there can be no decree for profits, and the plaintiff's only remedy is by an action at law for damages."

In the light of these decisions there was error in the court below, not in any formal disregard of the rule restricting the plaintiff's recovery to the profits actually realized, but in permitting the plaintiff to prove, not the defendant's profits, but those realized by other companies. This was in effect showing what, in the opinion of the master and the court, "he might reasonably have made, and not those which he did make." The fallacy of this application of the rule is obvious, for nothing is more common than for one manufacturing concern to make profits where another, with equal advantages, operates at a loss.

The learned judge seems to have thought that the course of the defendant, in not itself disclosing the condition of its business, justified the master in estimating its profits upon

Syllabus.

the basis of those of other similar establishments. But, as we have seen, the burden of proof was upon the plaintiff. He relied, notwithstanding defendant's objections, on incompetent and irrelevant evidence, and the decree in his favor, in so far as it awards more than nominal damages, cannot be sustained. The decree of the court below is

Reversed, the costs in this court to be paid by the appellee; and this cause is remanded with directions to enter a decree for nominal damages with costs.

BATES v. PREBLE.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 123. Argued November 28, 29, 1893. -
- Decided January 8, 1894.

This court is not committed to the general doctrine that written memoranda of subjects and events, pertinent to the issues in a case, made cotemporaneously with their taking place, and supported by the oath of the person making them, are admissible in evidence for any other purpose than to refresh the memory of that person as a witness.

When it does not appear that such a memorandum was made cotemporaneously with the happening of the events which it describes, it should not be submitted to the jury.

If such a memorandum, made in a book containing other matter relating to the issues which is not proper for submission to the jury, be admitted in evidence, the leaves containing the inadmissible matter should not go before the jury.

In such case it is not enough to direct the jury to take no notice of the objectionable matter, but the leaves containing it should be sealed up and protected from inspection by the jury before the book goes into the conference room.

In Massachusetts, where an action in tort, grounded on fraud of the defendant, is commenced more than six years after the cause of action arose, and the general statute of limitations applicable to actions sounding in tort is set up, if the fraud is not secret in its nature, and such as cannot readily be ascertained, it is necessary to show some positive act of concealment by the defendant, to take the case out of the operation of that statute; and the mere silence of the defendant, or his failure to inform the plaintiff of his cause of action, does not so operate.

Statement of the Case.

THIS was an action at law brought by Sarah A. Preble to recover of the defendants Bates and Walley, stock brokers, the value of certain securities, the property of the plaintiff, which she alleged had been converted by the defendants to their own use.

The facts were substantially as follows: Mrs. Preble, a widow and a resident of Portland, Maine, acquired by her husband's will certain securities, consisting of stocks and bonds, which she kept in a box in the vaults of the Union Safe Deposit Company, in Boston. Upon the trial she gave evidence tending to show that she entrusted the key of the box to her son, Edward Preble; that she visited the box herself in 1878 and found all her securities there; that she next visited it in the autumn of 1882 and found them all gone; that at various times between these dates her son had abstracted these securities from the box, to which she had given him access, and had taken them to the defendants, who were stock brokers, without authority from her, and that the defendants had sold the securities for him; that Walley, one of the defendants, had notice that the securities belonged to the plaintiff and had fraudulently concealed from her the fact of the conversion, and that she did not discover the conversion until within six years before the bringing of the suit.

Defendants claimed that some of her securities they had never sold or dealt with in any way; that others they had received from Edward Preble, and had disposed of by his directions and upon his account in the ordinary course of business, believing them to be his property; that they had no knowledge or notice that any of the property belonged to the plaintiff; that in fact some of the securities did not belong to her, and that if she ever had any cause of action against them for the conversion of these securities, the same arose more than six years before the bringing of her suit, and hence that such action was barred by the statute of limitations.1

The jury returned a verdict for the plaintiff for $34,772.88

1 This statute of limitations will be found in the opinion of the court, post, 158.

Argument for Defendant in Error.

damages, and handed to the court with their verdict a schedule containing the special items upon which they held the defendants liable, showing the securities which they found to have been converted by the defendants with the value of the same, and the date of their conversion from which interest was computed. Upon motion for new trial, the court held that there was no evidence to sustain the finding of the jury with respect to certain of the securities; that the value of such securities should be remitted from the verdict, or that a new trial should be granted. Judgment was finally entered for the plaintiff for $28,496.52, being the amount of the verdict less the amount remitted. Defendants sued out a writ of

error from this court.

Mr. Samuel Hoar for plaintiffs in error.

Mr. Robert M. Morse and Mr. Louis C. Southard, for defendant in error, made the following points in their brief as to the seventh, eighth, and ninth assignments of error:

As to the admission of Mrs. Preble's memorandum book and permitting it to go to the jury under certain instructions, the portions of the book upon which the plaintiff relied were a page from an earlier memorandum book which was pinned into the book produced, and the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth leaves and page marked "X," all of which were in the handwriting of the plaintiff. The entries were original entries, and the fair interpretation of the report of the evidence is that they were made in the several years which they purport to cover.

These memoranda were simply schedules of the securities in her box from 1877 to 1882. They were supplemented by the oath of the plaintiff that they were her original entries and that they were correct. It must be presumed by this court that the appearance and character of the plaintiff's book indicated to the satisfaction of the judge at the trial that it was kept honestly, carefully, and accurately.

That books of account containing original entries and supplemented by the testimony of the party who kept them, are

Argument for Defendant in Error.

admissible in evidence is well established in the courts of the United States, of Massachusetts, and of the States generally. Insurance Co. v. Weide, 9 Wall. 677; Cogswell v. Dolliver, 2 Mass. 217; Prince v. Smith, 4 Mass. 454; Smith v. Sanford, 12 Pick. 139; S. C. 22 Am. Dec. 415; Harwood v. Mulry, 8 Gray, 250; Pratt v. White, 132 Mass. 477; Miller v. Shay, 145 Mass. 162; Passmore v. Passmore, 60 Michigan, 463; Singer v. Brockamp, 33 Minnesota, 501; Webster v. Clark, 30 N. H. 245; Merrill v. Ithaca & Owego Railroad, 16 Wend. 586; S. C. 30 Am. Dec. 130; Payne v. Hodge, 7 Hun, 612.

A book kept by a bank, containing entries of notices to makers and endorsers of notes, accompanied by the testimony of the clerk who kept the same, is admissible. Shove v. Wiley, 18 Pick. 558. See also Farmers' & Mechanics' Bank v. Boraef, 1 Rawle, 152.

Sheets of paper on which separate entries have been made have been received. Hooper v. Taylor, 39 Maine, 224; Smith v. Smith, 4 Harr. (Del.) 532; Taylor v. Tucker, 1 Georgia, 231. Also papers not evidence per se, but found to have been true statements of fact, are admissible in connection with the testimony of a witness who made them. Insurance Companies v. Weides, 14 Wall. 375.

In many States notes of testimony or of conversations, accompanied by the testimony of the person who made the memoranda, have been admitted on similar grounds to those on which the competency of books of account rests. People v. Murphy, 45 California, 137; Labar v. Crane, 56 Michigan, 585; Halsey v. Sinsebaugh, 15 N. Y. 485; Clark v. Vorce, 15 Wend. 193; S. C. 30 Am. Dec. 53; Huff v. Bennett, 4 Sandf. 120; McAdams v. Stilwell, 13 Penn. St. 90; Glass v. Beach, 5 Vermont, 172; Marsh v. Jones, 21 Vermont, 378; S. C. 52 Am. Dec. 67.

But it is unnecessary for the purposes of the case at bar to determine how far memoranda made by a party are admissible in evidence. The entries in the present case are of a character and made at times which rendered them competent. If, however, the memoranda were not admissible the defendant was not prejudiced by their admission.