supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods, gives notice to the vendor not to manufacture any more, as he has no occasion for them, and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of the contract." See also Jones v. Barkley, 2 Doug. 684; Ripley v. McClure, 4 Ex., 344.

THE DISTINCTION BETWEEN INVENTION AND MECHANICAL SKILL.

In order to obtain a patent for an article, it 'is necessary not only that the article shall be new, but that the production of it shall require invention. In examining the ever-varying facts of the different cases, it has been found difficult to determine whether there has been an exercise of invention or not. Invention is defined to be the contrivance of that which did not before exist, and in the sense of the patent law it consists in the creation of something new by an operation of the intellect. There is just where the difficulty lies. How can any one enter into the mind of him who produces something new, and determine whether or not the production of it required a mental effort? For the purpose of facilitating such an inquiry,

a distinction has been drawn between inventive genius and constructive skill. Invention begins where construction ceases. But this distinction merely changes without removing the difficulty; for the questions that next arise are: What is constructive skill? Whose skill shall be taken as the test? These questions have been answered by reference to the skill of an ordinary mechanic, versed in the art to which the article pertains. Whatever such a person could do is deemed constructive skill; anything beyond that is invention. This distinction will be made more clear by a reference to the cases in which it has been applied.

In Hotchkiss v. Greenwood, 11 How. 248, the alleged invention consisted in fastening clay knobs to a shank in a certain way. It was shown that metallic knobs had been previously fastened to shanks in the same way. The jury had been instructed that the patent was void, if no more ingenuity or skill were required to construct the knob in this way, than that possessed by an ordinary mechanic ac

quainted with the business. This was held to be correct, inasmuch as "there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention; in other words, the improvement is the work of the skillful mechanic, not that of the inventor."

In Stimpson v. Woodman, 10 Wall. 117, s. c. 3 Fish. 98, the alleged invention consisted in producing a pebbled or boarded grain or finish upon leather, by subjecting it to the pressure of a short revolving cylinder or roller of steel or other metal, having the required design or figure engraved upon its periphery. The circuit court had refused to instruct the jury that the patent was void if they found that before the plaintiff's, a machine was known and in use similar to his, except that the surface of the roller was smooth, and that figured rollers were known and used in other machines for the same purpose. This was held to be an error, and it was said: "The engraving or stamping of the figure upon the surface of the smooth roller, or the substitution of the old figured roller for the purpose, required no invention; the change with the existing knowledge in the art involved simply mechanical skill, which is not patentable."

saw.

In Phillips v. Page, 24 How. 164, it is said: "Nor does the enlargement of the organization of the machine, compared with the old one, afford any ground in the sense of the patent law for a patent. This is done every day by the ordinary mechanic in making a working machine from a patent model." In Dunbar v. Myers, 94 U. S. 187, the alleged invention consisted in two deflecting plates, one being placed on each side of a circular The proof showed that one deflecting plate for this same purpose was well known and in public use long before the application for a patent. The court, holding the patent to be void, said: "Grant that two such plates are, in certain cases, better than one used alone, still the question arises whether it involves any invention to add the second plate to a machine already constructed with one plate. Beyond doubt, every operator who had used a machine having one deflecting plate knew full well what the function was that the deflecting plate was designed to accomplish, and the reasons for placing it at the side of the saw are obvious to the understanding of every one who ever witnessed the operations

of a circular saw. Ordinary mechanics know how to use bolts, rivets and screws, and it is obvious that any one knowing how to use such devices would know how to arrange a deflecting plate at one side of a circular saw, which had such a device properly arranged on the other side."

In Ransom v. New York, 1 Fish. 252, the court laid down the rule in the following language: "If, with the knowledge that the public then had it required no invention but simply the ordinary skill and ingenuity of the mechanic to produce this combination-in other words, if the inventive faculty was not at work at all, and was not needed to produce this alleged invention, then the patent would be void."

In Larrabee v. Cortlan, 3 Fish. S. C. Taney 180, the alleged invention consisted in a combination of a movable reservoir with a jet bath. It was proved that a shower bath, with a fixed reservoir and a fixed jet bath connected with it, and also a movable reservoir without a jet bath were known and in use before the patentee's improvement was made. The court instructed the jury that "if a mechanic of ordinary skill, and acquainted with such business, with the old improvement before him, could have attached the jet bath to the movable reservoir in a manner that would produce the same result with that adopted by the plaintiff, then the improvement he claims to have invented is not entable. In Haselden v. Ogden, 3 Fish. 378, the alleged invention consisted in a combination of a perforated pipe, a pointed end constructed as a drill, and a common pump. It was proved that pipes with pointed ends, united with pumps, had been previously used. The court, in instructing the jury, said: "It is also for you to say whether the patent in question is for such an article as requires and demands for its production the genius of an inventor as distinguished from the ordinary skill of a mechanic. If it might have been produced by the latter only, the patent would not be valid."

pat

In Needham v. Washburn, 7 O. G. 649, the alleged invention consisted in introducing the molten iron in the manufacture of car wheels into the mold through a series of openings at the rim of the wheel, just inside the tire. It was proved that previously the molten iron had been poured in at the center of the

mold. The court said: "Changes of the kind are nothing more than common knowledge and experience would suggest, and every workman, whether skilled or not, would know how to apply the suggestion."

From this examination of the cases it will also be seen that whether an article requires invention or not is a question of fact, and in an action at law is always left to the jury. The evidence to disprove invention generally consists of prior discoveries, and inferences are drawn from these. The opinions of experts are also competent. O. F. B.

The defendant, in consideration of $250, acknowledged to have been paid by one B, agreed to receive from B, at any time within six months from the date of the contract, $2,500 in gold coin, and to pay him therefor in current funds at the rate of $195 in currency for every $100 in coin. The contract declared that B did not contract to deliver the coin, but paid the $250 for the privilege of delivering it or not at his option. Held, that the contract was not void on the ground of being a wagering contract.

ANDREWS, J., delivered the opinion of the court: By the terms of the contract set out in the complaint, the defendant, in consideration of two hundred and fifty dollars, acknowledged to have been paid him by Merrett C. Bigelow, agreed to receive from Bigelow, at any time within six months from the date of the contract, two thousand, five hundred dollars in gold coin of the United States, and to pay him therefor in good current funds, at the rate of one hundred and ninety-five dollars in currency for every one hundred dollars in coin, and the contract expressly declares that Bigelow does not contract to deliver the coin, but pays the two hundred and fifty dollars for the privilege of delivering it or not, at his option.

The validity of this contract is assailed on the ground that it is a wager, and therefore void.

The case was tried by a judge without a jury, and the judge found that the contract was not a bet or wager, and directed judgment for the plaintiff.

There is no evidence of what took place between the parties to the contract at the time it was made, outside of the contract itself, nor are any circumstances proved tending to show the intent of the

parties to be different from that appearing upon the face of the instrument. It does not appear that there had been prior dealings between them of a similar kind, or that either of them had bought or sold gold on speculation, or received or paid differences on the purchase and sale of stocks or gold. The breach of the contract was shown, and the plaintiff was entitled to recover the damages sustained, unless the contract on its face is a wagering contract in violation of the statute, 1 R. S. 662, § 8.

In construing a contract, that construction is to be preferred which will support it, rather than one which will avoid it.

"It is a general rule," says Lord Coke, "that wheresoever the words of a deed or of the parties without deed, may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with the law, shall be taken." Co. Litt. 42, 183. Applying this well settled rule of construction to the contract in question, we are to consider whether it necessarily imports a gambling transaction. By this contract the defendant bound himself to take the gold if delivered within the time specified at the price named, and he ran the hazard of loss in case the market price of the gold should be more than ten per cent. less at the time specified for the delivery, than the price he agreed to pay. This hazard he was willing to assume for the consideration paid by the other party. The seller paid the two hundred and fifty dollars for the right to deliver it, and he could in no event lose any thing beyond that sum, for he assumed no obligation to the defendant, and he might gain by a fall in the market. That there was an element of hazard in the contract is plain. But the same hazard is incurred in every optional contract for the sale of any marketable commodity, where, for a consideration paid, one of the parties binds himself to sell or receive the property at a future time, at a specified price, at the election of the other.

Mercantile contracts of this character are not infrequent, and they are consistent with a bona fide intention on the part of both parties to perform them. The vendor of goods may expect to produce or acquire them in time for a future delivery, and while wishing to make a market for them, is unwilling to enter into an absolute obligation to deliver, and therefore bargains for an option, which, while it relieves him from liability, assures him of a sale in case he is able to deliver; and the purchaser may, in the same way, guard himself against loss beyond the consideration paid for the option, in case of his inability to take the goods. There is no inherent vice in such a contract. Disbrough v. Neilson, 3 Johns. Cas. 81; Stanton v. Small, 2 Sand. 240; R. R. Co. v. Dane, 43 N. Y. 240; Brown v. Hall, 5 Lans. 180. Contracts of this kind may be mere disguises for gambling, and where an optional contract for the sale of property is made, and there is no intention on the one side to sell or deliver the property, or on the other to buy or take it, but merely that the differences should be paid according to the fluctuation in market values, the

contract would be a wager within the statutes. Seizewood v. Blane, 73 Eng. C. L. 525; Rourke v. Street, 34 Eng. L. & E. 219; Cassard v. Hinman, 1 Bos. 207; Matter of P. K. Chandler, 13 Am. L. R. (N. S.) 310.

An executory contract for the sale of stocks or goods at a fixed price is valid, although the vendor neither owns them nor has them in possession when the contract is made. Hibblewhite v. McNeornie, 5 M. & W. 442.

If such a contract relates to a marketable commodity, the purchaser risks the chance of depreciation in market value between the execution of the contract and the time of the delivery, and the vendor loses the opportunity of selling them at a higher price if the market advances; but this hazard is in no sense a wager, if the transaction is bona fide, and it will be presumed to be so until the contrary appears. The form of a contract of sale may be resorted to as a mere cover for betting on the future price of the commodity agreed to be sold; and if this is the real meaning of the transaction, and no actual sale or purchase is intended, the contract is illegal and will not be enforced. But the illegality is matter of defense, and must be established by proof and found by the jury.

The circumstances relied upon to show that the contract in question was a wager, are: First, that it was a contract for the sale of gold, and second, that it was optional on the part of the seller. But these facts alone do not authorize the inference sought to be deduced from them. Contracts for the sale of gold are not prohibited by law, and their validity has been frequently recognized by this court. Cook v. Davis, 53 N. Y. 318; Cameron v. Durkheim, 55 Id. 425; Peabody v. Speyers, 56 Id. 230. It may be bought and sold, like any other commodity. It is true that contracts for the purchase and sale of gold are a convenient cover for gambling transactions. The frequent fluctuations in the value of gold; the opportunities for combinations to affect the market; the ability to ascertain its market value on any day or hour of the day, make time sales of gold a means often resorted to for speculation and gambling. There may be a suspicion, when a time contract to sell gold optional on one side is shown, that it was made as a wager or bet upon the price of gold when the contract matures, but this is not sufficient to establish the illegal intention.

The fact that the contract was a seller's option, is not necessarily inconsistent with the fact that the seller owned the gold at the time of making the contract; and if he did not then have the gold, it might well be that he was entitled, under some existing contract, to receive it within the time given by the option to deliver it, and took the option in view of the contingency that his contract might not be performed.

If the contract in question was a mere device to evade the statute, it was, as has been said, illegal, but the question here is, does the contract on its face disclose an illegal transaction, and we are of opinion that it does not, and that the defense of illegality was not established. The exception to the finding that the defendant was, at the time

the contract was made, engaged in business as a private banker and was purchasing gold coin to hold, in the view we have taken becomes immaterial. The burden was upon the defendant to show the illegality of the contract, and this he did not do. The judgment in the action of Benedict & Doty against Bigelow, was not a bar to this action. It did not, so far as the record discloses, determine any issue as to the consideration or rescission of the contract in question, and the damages for the breach were not available as a counterclaim in that action. No other questions are presented by the exceptions.

The judgment should be affirmed. All concur. FOLGER, J., absent.

1. FIRE INSURANCE-VALUE OF PROPERTY-CONSTRUCTION OF STATUTE.- Ch. 347 of 1874 provides that where real property in this state, insured against fire shall be totally destroyed by fire without criminal fault of the assured, the amount of insurance written in the policy "shall be taken and deemed to be the true value of the property at the time of such loss, and the amount of loss sustained" and the measure of damages. Held, that, in an action upon a policy issued since the statute took effect, in a case coming within its terms, the amount of insurance written in the policy is conclusive as to the amount of the damages (if any) for which the insurer is liable by reason of the loss.

2. AS THE STATUTE RESTS UPON GROUNDS OF PUBLIC POLICY, the conclusive effect of the amount of insurance written in the policy upon the measure of damages is not altered by a stipulation in the same instrument that the damage should be established " according to the true and actual cash marketable value" of the property when the loss happened.

Finch & Barber, for appellant; H. B. Jackson, for appellee.

COLE, J., delivered the opinion of the court:

The material part of the answer to be considered on the demurrer is the allegation that the policy provided that, in case of fire, the loss or damage should be established according to the time and actual cash marketable value of the property when the loss happened, and that the true and actual cash marketable value of the property, at the time of the fire, was less than the amount of insurance on the property. It is claimed that this shows a partial defense to the action. The insured building was a brick hotel, which was wholly destroyed. The policy was issued after chapter 347, laws of 1874 took effect, and the case therefore necessarily involves a construction of that statute and its application to the answer. The act of 1874 is entitled "An act to regulate

insurance companies," and provides that in all cases where an individual or company authorized by the laws of this state, to take risks, issue policies, and transact the business of insurance in this state, shall insure or issue a policy of insurance against loss by fire upon the real property of any individual, or corporation, in this state, and the property so insured shall be wholly destroyed, without criminal fault on the part of the assured, the amount of insurance written in the policy" shall be taken and deemed the true value of the property at the time of such loss, and the amount of the loss sustained by the individual or corporation in whose favor the said policy was issued, and such amount shall be taken and deemed the measure of damages."

The words of this statute are neither obscure, doubtful nor ambiguous as to their meaning, and they therefore afford but little room for interpretation. In clear and precise terms they make, in case of total loss of real property, without criminal fault of the assured, the amount of insurance written in the policy, the value of the property at the time of loss, and that amount is fixed as the measure of damages. It is analogous to a valued policy, only here the statute peremptorily declares what shall be deemed to be the real value of the property at the time of loss, and what sum shall be paid as indemnity. And as the intention of the legislature is obvious, the statute clearly prescribing that the amount of insurance written in the policy shall be deemed the true value of the property at the time of loss it results that the above allegation is bad and shows no defense. For, if the statute is to have effect as enacted, nothing is left open in the case to proof. "The true and actual cash marketable value of the property" at the time it was destroyed is not a matter to be inquired into as the amount of insurance written in the policy determines the amount of loss and fixes the extent of the recovery. The ingenious counsel for the defendant insisted that the statute intends, and should be construed as only to mean, that the amount of insurance written in the policy shall be prima facie the value of the property, so, in case of total loss, to place the onus of proving the real value upon the insurer instead of the insured. But this construction seems quite inadmissable in view of the language which expressly declares that the amount of insurance written in the policy shall be taken and deemed the "measure of damages."

It will be seen that the statute adopts the amount of insurance written in the policy as the rule of damages, or amount of compensation, leaving no question open as to what in fact was the real value of the property destroyed. The manifest policy of the statute is to prevent over insurance and to guard, as far as possible, against carelessness and every inducement to destroy property in order to procure the insurance upon it. When property is insured above its value, a strong temptation is presented to an unscrupulous and dishonest owner either to intentionally burn it, or not guard and protect it as he ought. Not sharing in the risk, with the insurer, it is for his advantage that it be

destroyed, and it often is destroyed, with other property, when it would not have been but for the fact of such excessive insurance. And insurance companies too, actuated by motives of gain or incited by sharp competition in business, take risks, frequently, recklessly and for amounts in excess of the real value of the property insured, which they would be less likely to do, if compelled to pay the amount of insurance written in their policies. It is evident it was to prevent these evils and guard against these mischiefs that the statute was enacted. Its policy seems to be wise and wholesome, but if it were not, it is not the province of the court to emasculate the law by any nice or forced construction of its language. As it stands it clearly makes the amount of insurance written in the policy the measure of the value of the property and the rule of damages. And as the meaning and intent of the statute are clear, effect must be given to it, certainly as regards the class of property. The measure of damages, therefore, being fixed by the statute the company had no right to show that the assured sustained a less loss than the amount written in the policy.

But the counsel further contends that, by reason of the stipulation in the policy, the statute does not apply and can not govern as to the extent of the defendant's liability. It is said the parties were abundantly able to contract for themselves, could restrict or change the rule provided by the statute, and that the assured did expressly waive that rule by agreeing that the loss should be established according to the time and actual cash marketable value of the property when destroyed. We have no doubt that the statute applies to the policy, and so far as there is any conflict or inconsistency between it and the provisions of the policy the statute must control. A strictly analogous question was presented to the United States Circuit Court, for the western district of Missouri, in White V. Conn. Mut. Life Ins. Co. 5 Cent. L. J. 485 and it was so ruled. In that case it was held that an act of the legislature of Missouri, in respect to policies of life insurance, extended to all policies delivered after the act took effect, and that when the provisions of the act were in conflict with the stipulations of the policy, the act controlled. The opinion is by Dillon, J., who, among other things, says: "We are of the opinion that policies issued and delivered in Missouri, after that act took effect, fall within its protective operation; and as to such policies the act is to be treated as if incorporated therein; certainly, unless there is an express provision in the policy to the contrary, if it be competent, indeed, to insert such a provision. Our attention has been called to a late decision of the Court of Appeals of Kentucky, in which a conclusion is reached that seems to be in conflict with the view above expressed. Farmer's, etc., Ins. Co. v. Carry, 10 Ch. L. N. 43." We have carefully examined the decision of the court of Kentucky, to which Judge Dillon refers, and like him fail to be convinced by its reasoning, and can not adopt the doctrine there laid down. For it seems to us that the decision defeats the very policy and purpose of the statute,

and we are therefore unwilling to follow it. See Emmery v. Piscataqua F. & M. Ins. Co., 52 Maine 322, and Chamberlain v. Ins. Co., 55 N. H. 249. We have already said that the legislature seemed to have enacted the law of 1874 to prevent or do away with, as far as possible, the great evils and mischiefs arising from over insurance. Consequently, on grounds of public policy, and in order to accomplish that end, it was provided that the amount of insurance written in the policy should be conclusive as to the value of real property destroyed.

Now the law is well settled that when a statute is founded upon public policy, a party can not waive its provisions even by express contract. "The contracts of private persons can not alter a rule established on grounds of public policy." Emmery v. Piscataqua, F. & M. Ins. Co. supra; Sedgwick on Cons. of Stat. and Cons. Law, page 70. The law of 1874 must be regarded as though written in the policy itself, and the stipulation that the loss shall be established according to the actual cash marketable value of the property when destroyed, being in conflict with the rule of damages prescribed by the statute, must fall. The counsel argued that the same rule obtained here as in cases where common carriers have restricted their common law liability by special agreement. But the cases are not analagous for very obvious reasons. When the owner, in consideration of paying a less rate, agrees to relieve the carrier from his liability as insurer of the property, no principles of public policy may be violated. But suppose he should contract to exempt the carrier from liability for gross negligence? It would not be difficult to find respectable decisions which would condemn such a contract, as unreasonable and contrary to public policy.

It will be noticed that the statute relates solely to insurance upon real property, which the parties can see and fix a value upon when the insurance is effected. If companies exercise the care which it is for the public interest they should use in making the valuation, there would be no danger of excessive insurance.

We are referred to some cases in Massachusetts, bearing upon the question under consideration, but, as we do not rest our decision upon them, we will only remark that they hold for example, that when the policy states the amount insured is three-fourths of the value of the property, as stated by the applicant, the valuation thus agreed upon by the parties is conclusive in the absence of fraud. Luce v. Dorchester Ins. Co., 195 Mass. 207; Brown v. Quincy Ins. Co., Id. 396..

The order sustaining the demurrer to the answer is affirmed and cause remanded for further proceedings.

IN an English Court lately a plaintiff, a female servant, complained that her master, a clergyman, had called her a "villain." The reverend gentleman pleaded that that was the ancient appellation of a servant, and that he had used it in that s. nse. The judge decided that it was never the appellation of a servant but of a tenant who held by the ancient tenure of villainage now abolished, and also that a female tenant was called a "nief."