HAILES v. VAN WORMER.

Vol. I.]

[No. 2.

4. A direct draft for such stoves as are constructed with revertible flues, the direct draft being obtained by a flue passing out above the fire-pot, and provided with a damper to be closed after the fuel has been ignited.

5. Openings in the case or exterior of the stove and the insertion of mica therein, for the purpose of illuminating the room in which the stove may be with the light of the burning fuel.

These devices, with others, are brought together, and claimed as a new combination, and several combinations of some of them are also claimed as inventions producing novel and useful results. What those other de vices are we need not specify, for it is not shown that they are employed by the defendants.

The stove of the defendants does, however, contain all those mentioned, and contains them in combination. That each of them was an old device, well known, and in public use before the patents of the complainants were granted is abundantly proved by the evidence submitted. A flaring firepot, a supply-reservoir, with its lower extremity of smaller diameter than its upper revertible flues, a place for flame expansion above the fire-pot, the addition of a direct draft for use in igniting the fuel, provided with a damper, and the insertion of mica for illumination-openings, were all found in stoves before Hailes and Treadwell claimed to have made their invention. It is true there is a peculiarity in the construction of the lower extremity of the complainants' supply-reservoir. It is provided with a circular flange, extending outward and bending downward, so as to fit upon the upper rim of the fire-pot, and thus form a closed combustionchamber. This, of course, cuts off communication with the space around the upper part of the reservoir, and confines the flame and other products of combustion within a circular combustion-chamber thus formed, leaving no outlet for them except through ear-passages into revertible flues. For this device, the peculiar structure of the reservoir, and the formation of the closed expansion-chamber, there is no equivalent in the defendants' stove. There is no such closed chamber. The reservoir does not rest on the fire-pot. It has no connection with it, or with the sides of the stove. Nor is there any obstacle interposed to the passage of the products of combustion up and around the reservoir when the flue for direct draft is open; and when that flue is closed, the flame is not detained over the burning coal, but the products of combustion pass directly across the edge of the fire-pot, and descend along the sides thereof to the interior draft-passage. Such an arrangement is not fitted to produce the effects sought and claimed for the complainants' stoves. On the contrary, it plainly excludes them.

There are other differences in the devices used both in the complainants' and the defendants' stoves, which we think are substantial, and not merely formal. The combination claimed by the complainants passes the prod ucts of combustion out of the chamber through perforations in the flange, or through ears into flues leading downward, but wholly exterior to the fire-pot, and not in contact with it. This arrangement makes it possible to introduce external air through perforations in the outer casing of the stove, and allow it, when heated by contact with the fire-pot and the descending flues, to escape from the top. Accordingly, the outer casing is perforated, and there is no closed magazine around the fire-pot. But in

Vol. I.]

HAILES v. VAN WORMER.

[No. 2.

the defendants' stove there is no such device, and no such effects are produced. There are no external downward flues separated from the fire-pot. The whole space around the magazine and the fire-pot is completely inclosed. There is but a single chamber around the reservoir, over the surface of the burning coal, and around the fire-pot. Through this chamber the products of combustion pass, either through the direct draft-flue, when that is in use, or to the base of the stove, and thence outward. This arrangement also excludes the possibility of an effect claimed for the Hailes and Treadwell invention. It admits of no space around the fire-pot to which the external air can have access.

It is not, then, the combination of old devices which the defendants use that Hailes and Treadwell invented. It is not those old devices that produce the new results claimed. The complainants' combination is a different thing. It has a greater number of constituent elements. It consists in the employment of the devices used by the defendants, together with others they do not use, and the result of the entire combination is the production of a stove differing very materially from that of the defendants; and the defendants' combination cannot produce the results claimed for that of the complainants. We have said that the new results claimed, whatever they may be, are not the production of the combined devices common to both stoves. The devices used by the defendants produce no new effects, because used in combination. The space around the fire-pot leading to the base doubtless secures the beneficial results long known to follow the use of revertible flues. It may be conceded to be an equivalent for such flues; but the results of its construction are not changed by the fact that a flaring fire-pot and a supply-reservoir, with a contracted discharge-end and openings for illumination, are used in the same stove. It still operates to conduct the products of combustion to the base and into the exit-flue. No new operation is given to it by the combination. The same may be said of every other device employed by the defendants, which is also in the complainants' combination. Each produces its appropriate effect unchanged by the others. That effect has no relation to the combination; in no sense can it be called its product. Thus far nothing novel is produced. This, then, is a mere aggregation of devices, not invention, and consequently the use of those devices, either singly or together, cannot be held to be any infringement of rights belonging to the complain

ants.

66

We pass now to consider more in detail the claims in the complainants' patents, which it is alleged the defendants have infringed. The first in the reissued patent, dated February 3, 1863, is unquestionably too broad to be sustained, unless limited to the means described in the specification. So, it was doubtless intended by the patentees to be limited, for the claim speaks of the combination claimed substantially as described," that is, described in the specification. Thus limited, one of its essential elements is a closed combustion-chamber over the fire-pot, formed by a flange of the reservoir resting on the upper edge of the pot, and provided with perforations or ears connecting with two flues passing downward. This element is indispensable for the purposes asserted in the claim, as well as in the specification. And the peculiar structure of the chamber is more than formal. It is functional. It prevents the passage of the flame and other

Vol. I.]

HAILES V. VAN WORMER.

[No. 2.

products of combustion up, around, and over the supply-reservoir, which is a leading avowed object of the invention, precisely the improvements patented. But this constituent of the combination the defendants have never used, nor have they used any corresponding device, or device producing the same results.

The second claim is for contracting the discharge end of the coal-supply reservoir, expanding the fire-pot, and extending the flame-passage downward for united operation in a base-burning coal-supply reservoir stove or furnace, essentially as set forth. The means set forth for extending the flame-passage downward are perforations through the flange, forming the lateral boundary of the closed combustion-chamber, or ears leading thereout, and close flues extending from the ears or perforations downward at some distance from the fire-pot, through a space bounded on one side by the fire-pot, and on the other by an outer casing of the stove, perforated for the admission of external air. It might, perhaps, be questioned whether there is any device in the defendants' stove corresponding to this; but, waiving the consideration of that question, it is very evident that the combination of the three devices named is not the work of invention. They have no relation to each other. Neither the form of the feeder nor the shape of the fire-pot bears at all upon the direction of the draft-passages. There is no novel result flowing from the joint operation of the three devices. The revertible flues have no more to do with a stove supplied by a feeder than they would have with a stove supplied by hand. There is, therefore, nothing in this claim that interferes with what the defendants

have done.

An essential element of the combinations mentioned in both the third and fourth claims is the closed combustion-chamber, formed in part by a circular flange extending outward and closing on the top of the fire-pot, with perforations in it, or ears for connection with the downward flues, or it is those perforations or ears leading out of such a chamber to the descending passages. These devices the defendants do not employ, and they cannot be used in the defendants' stove. There has been, therefore, no infringement of these claims.

The fifth claim is the only remaining one contained in the reissue which the defendants are alleged to have invaded. It is constructing the fire-pot of a base-burning stove with an imperforated circumference and in the form of a trumpet-mouth at its upper extremity, in combination with descending flame-passages, substantially as described, and for the purposes set forth. How in combination? As described in the specification, united by means of perforated flanges or ears of the pot, involving, of course, the presence of a closed combustion-chamber constructed substantially as already described. Construing the claim thus, as we think it must be construed, the defendants have been guilty of no infringement.

Passing now to the second patent, issued August 11, 1863, we observe that its first claim was for a combination of the illumination-openings, flame-expansion chamber, coal-supply reservoir, fire-pot, descending flue, and draft-flue, substantially in the manner and for the purpose described. In the main, this is the same combination as that claimed in the reissued patent we have had under consideration. The only change is the addition of illumination-openings. These were a well known device applied

Vol. I.]

DE LANCEY v. INSURANCE COMPANY.

[No. 2.

to stoves long before either of the patents were granted. They perform no peculiar office in the new combination. They have no possible relation to it. They do not affect in the slightest degree the results of that combination, whatever they may be. It is impossible to regard the mere addition of such openings to a stove containing the improvements described in the reissued patent as the formation of a new patentable combination. It is not invention. If, however, it were, the defendants have not trespassed upon it, for of the combination the peculiarly formed close expansion-chamber is an essential constituent, and that is not found in

the defendants' stove.

Similar remarks might be made respecting the second claim of the patent of August, the only remaining one alleged to have been infringed. All the elements of the combination have not been used by the defendants. The decree of the circuit court is affirmed.

SUPREME COURT OF NEW HAMPSHIRE.

[52 N. H.]

CONSTRUCTION OF STATUTES. PRESUMPTIONS AGAINST UNREASONBLE EXEMPTION. — GENERAL AND ESPECIAL LAWS. — INSURANCE.

DE LANCEY v. INSURANCE CO.

In the construction of a statute, it is to be presumed that the legislature did not intend to grant to a corporation such an exemption from the operation of the general law applicable to similar corporations as would create an unreasonble monopoly or immunity at variance with constitutional principles; and, when such an exemption is excluded by a fair construction implying the qualification that the statute is to operate in harmony with and subject to the general law, such a construction will be adopted.

ASSUMPSIT, by Randolph A. De Lancey against the Rockingham Farmers' Mutual Fire Insurance Company, on a policy of insurance dated November 19, 1866, purporting to insure the plaintiff's house, clothing, and provisions. The facts in regard to the title of the house, and the land on which it stood, were as follows: Moses Hobbs died, seised in fee of the premises, some time before February 24, 1866, leaving a widow, Abby L. Hobbs; three brothers, Obed, Maurice, and James; and one sister, Abigail T. De Lancey, wife of the plaintiff, but no lineal descendants. His widow waived the provisions of the will, electing to take her share of the estate, with dower and homestead in lieu thereof; and the rights of the parties then stood as though there had been no will. February 24, 1866, Abby L., the widow, conveyed all her interest in the premises to her husband's three brothers and Mrs. De Lancey, jointly. April 6, 1866, Obed S. and Maurice conveyed their interest to the plaintiff. April 1, 1867, James conveyed his interest to the plaintiff. April 13, 1867, Mrs. De Lancey conveyed her interest to Elizabeth L. Hobbs ; and April 30, 1867, Elizabeth L. Hobbs conveyed to the plaintiff. Sub

Vol. I.]

DE LANCEY v. INSURANCE COMPANY.

[No. 2.

ject to the defendants' exception, the plaintiff was permitted to testify that the deed from the widow of Moses Hobbs was made to the brothers and sister in pursuance of a previous understanding of all parties, at his own suggestion, and to avoid complication; that upon the execution of that deed he paid the grantor $1,700 in cash, being the agreed price of her interest, and that the subsequent deeds, passing the legal title to himself, were all executed in pursuance and execution of a verbal contract at that time entered into; and James Hobbs was permitted to testify that he bargained with the plaintiff to sell him his interest in his brother Moses's estate in February, 1866; that the first payment to him was made April 2, 1866, to clinch the bargain; and that $200 more was paid between that time and the last of September, 1865.

The defendants' charter provides that the directors may determine the sum to be insured on any building, not exceeding three fourths of its value. It was stipulated, in the application and policy, that the sums proposed to be insured did not exceed three fourths of the actual value of the buildings; and that the company should not be held liable to pay, in case of loss, more than three fourths of the value at the time of the loss. The value of the house, at the date of the policy, was $2,883.33; its estimated value was stated in the application to be $1,400; and the sum insured upon it was $1,050.

The other facts are stated in the decision.

Marston, for the plaintiff.

Small & Wiggin, for the defendants. I. The plaintiff, not having a title in fee simple unincumbered to the property insured, and not having stated his true title, his policy is void by the terms of section 3 of the amendment to the charter. The authorities upon this point are numerous and uniform. The following are some of them: Marshall v. Col. M. F. Ins. Co. 27 N. H. 157; Leathers v. Farmers' M. F. Ins. Co. 24 N. H. 259; Patten v. Ins. Co. 38 N. H. 338; Smith v. Bowditch M. F. Ins. Co. 6 Cush. 448; Wilbur v. Bowditch M. F. Ins. Co. 10 Cush. 446; Falis v. Conway M. F. Ins. Co. 7 Allen 46; Towne v. Fitchburg M. F. Ins. Co. 7 Allen 51; Gahagan v. U. M. Ins. Co. 43 N. H. 176. If the plaintiff had a valid contract for a conveyance, it would make no difference. See the preceding authorities. It does not satisfy the terms of the policy that he had a title in fee simple to a part. The insurance was procured upon the whole. Wilbur v. Bowditch M. F. Ins. Co., before cited, is directly in point. The plaintiff never in fact had an unincumbered title to the land and buildings, having mortgaged them to raise the funds to complete the purchase, and the mortgage having been paid out of the funds received of the N. A. Ins. Co., as was evident from the papers in the case. The policy is void for the personal property as well as the buildings. Friesmuth v. Agawam M. F. Ins. Co. 10 Cush. 587; Brown v. People's Mutual Ins. Co. 11 Cush. 280. The misstatement of the title need not have been fraudulent to avoid the policy. See the preceding authorities, in all of which the principle is recognized, and in several expressly decided.

II. The policy is not saved by any statute. It is not affected by section 2, chapter 157 of the Gen. Stats., which provides "that no policy of insurance shall be avoided by reason of any mistake or misrepresentation, VOL. I.

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