The Steam Stone Cutter Company v. The Windsor Manufacturing Company. only claims what the invention brought, which is the same as if anything else belonging to the orator had been put into and sold with the machines, and the orator claimed what that brought. The orator waives the tort, and proceeds for the money arising from the tort. The money arising here is what would be left, after deducting the cost of the machines which the defendant furnished, from the avails of the sales of the machines, including the invention that belonged to the orator. The machines sold for $58,500; some of them with an express guaranty, in writing, of the right to use, and the rest with such warranty as would be implied by law from the fact of sale. The master has found and allowed elements of cost of manufacture of these machines, about which there is no question of law, to the amount of $35,451 93. He has also allowed for local taxes $116, which the orator claims should be disallowed, and has reported that the use of real and personal estate, belonging to the defendant, including repairs, employed in making these machines, was worth $2,632 46; that there was paid for insurance on such property, $455 52; that there was paid for salaries to stockholders of the defendant, employed in the making, $1,490; that $8,250 of the prices at which the machines were sold was due to a patented improvement of the defendant, called a bow-spring, attached to and sold with the machines, and $1,100 to an arrangement of the boiler in the machine, different from the orator's, which the defendant insists should be added to the cost of manufacture; and that the defendants' liabilities upon their guaranties and warranty of title is $22,000, if they are responsible for a failure of the right to use, which the defendant claims should be deducted from the avails of the sales. The machines cost the defendant the use of this real and personal estate, the shops, fixtures, and machinery. They could not have been made without such use, any more than they could be without iron. The whole cost of the machines belongs to the defendant, and no sound reason is apparent why this part should be left out. The personal efforts of a The Steam Stone Cutter Company v. The Windsor Manufacturing Company. mere wrong-doer are not a proper subject for compensation. to be allowed by a Court, but this stands on different footing. The orator had no right to the use of shops and machinery, and has no right to the money brought by that use. The insurance was no part of the cost of manufacture. It was not put upon the property because it was engaged in this business. Had it been consumed by the element insured against, no part of the insurance would belong to the orator. (Harding v. Townshend, 43 Vt., 536.) That money would have come from the defendant's property, not from the plaintiff's invention. The insurance was not for the benefit of this manufacture, but for the safety of the defendant in respect to its own property, generally. It is so, in some respects, as to the local taxes. In that locality such taxes are assessed upon property according to its value, and not on account of its employment. No property is taxed because it is engaged in any particular manufacture, or because engaged in any manufacture, although, sometimes, it is exempt for a while because it is so engaged. These taxes, if justly assessed, as is to be presumed, would have been precisely the same if the property had been engaged in other business, or had been otherwise invested, or had been lying idle and wholly unproductive. So, the payment of the taxes did not have, or, at most, is not shown to have had, any effect whatever upon the cost of the machines. The salaries paid to stockholders appear to have been paid in good faith, for services actually rendered, and not at all as a mode of dividing profits, or for the purpose of concealing profits. They were the same to the defendant, in its corporate capacity, in which it is sued, as if they had been paid to others not stockholders. It does not appear that the part which these salaried officers took in the business was such as to make them personally liable as infringers. The corporation infringed, and is sought to be charged for it in its corporate identity, and it should be held only according to its complete identity. The defendant has not, so far as at all appears, any monop The Steam Stone Cutter Company v. The Windsor Manufacturing Company. oly, by patent or otherwise, of the arrangement of the boiler in the machines. Placing it there was a mere matter of workmanship, for which the defendant should be allowed as a part of the cost of manufacture. That is allowed otherwise, and nothing should be allowed again on that account. The defendant had a patent on the bow-spring improvement, and made use of it in disposing of so much of the orator's patents as was embodied in the machines. This improvement brought, according to the finding, $750 of the price which each machine brought. That part was not any product of the sale of the orator's invention. It is said, in argument, that the use of the bow-spring was intended and expected to make the use of the orator's invention more extensive and effective, which is, perhaps, true, and that, therefore, the orator should have the whole price due to both inventions, as belonging to that enhanced use. If this was an accounting for damages, there would be force in this suggestion, for, the more effective the machines sold were the greater the inroad upon the monopoly their sale would be, and the greater the damage. But, here, the sole question is as to how much was received from the appropriation and sale of the orator's invention, and not what damage resulted; and, what was received for the sale of something else, belonging to the defendant and not to the orator, should not be allowed to the orator. If, however, the defendant has $750 of the price of each machine, on account of the enhancement which the bow-spring furnished, no part of the cost of making the bow-spring should be treated as a part of the cost of what embraced the orator's invention. That cost should all be deducted from the total cost of the machines, and the remainder only be deducted from the remainder of the price of the whole, after the price belonging to the bow-spring has been deducted. The master has not reported what the total expense of the bow-spring is, but only that it brought $750 above the actual cost of making it and its attachments, leaving the part of other expenses allowed, belonging to it, unascertained. If, however, the proportion between what this The Steam Stone Cutter Company v. The Windsor Manufacturing Company. part of the invention brought and its part of this cost of the machines was the same as that between what the orator's invention brought and its part of this and the other parts of the cost of the machines, which is probable, the part of this cost of manufacture belonging to the bow-spring can readily be ascertained. It will bear the same proportion to the whole amount of these outside expenses as $8,250, the price of the bow-spring, bears to $58,500, the whole price. This part of the account is to be adjusted upon this basis, unless one party or the other moves for and obtains a further hearing in this respect. As before stated, the only reason why the orator is entitled to any of the avails of the sales is, that, by the sales the defendant has converted the orator's property into money, which the orator is entitled to have in place of the property. The sale, to be an infringement, so as to entitle the orator to anything more than a mere nominal sum, must be a sale for use. (Curtis on Patents, § 294.) Here, that part of the avails of the sale belonging to the patented invention is large and substantial, and not merely nominal. If the avails of the sales are claimed and taken, the right to the thing sold must be parted with; solutio pretii emptionis loco habetur. (2 Kent's Comm., 387.) It will be like taking judgment and satisfaction for the conversion of property, which always operate "so that the defendant hath now the same property therein as the original plaintiff had, and this against all the world." (Adams v. Broughton, Andr., 19, Strange, 1078) And this relates back to the time of conversion. (Addison on Torts, Wood's ed., 544; 6 Hen. VII, fols. 8, 9, pl. 4; Shep. Touch., 227; Barnett v. Brandão, 6 Man. & Gr., 640, note.) The sales must be adopted by the orator upon the very terms upon which the defendant made them, and as much right to the inventions must follow as if the sales had been made by the orator instead of by the defendant. It may be that this right will not follow until satisfaction is made; but, whether it will or not is not now material. The question now is, how much the orator is entitled to recover by way of satisfaction; and The Steam Stone Cutter Company v. The Windsor Manufacturing Company. this is to be arrived at on the ground that satisfaction will be made. If not made, the defendant will not suffer unjustly by having it reckoned as if it would be. It follows, necessarily, that the defendant will be under no liability over to the purchasers after satisfaction, and that nothing should be deducted here on that account. There are profits on repairs sold, to the amount of $1,732, and on cutting done by the defendant, to the amount of $810 03, about which there is now no question. Upon these conclusions, there is to be added to. for use of real and personal estate and repairs.. and for salaries of stockholders.. making total cost of machines sold.... the share of cost of bow-spring is. leaving for cost to be deducted.... From the amount of sales.... $35,451 93 2,632 46 1,490 00 39,574 39 1,544 39 $38,030 00 $58,500 00 received by the defendant for the plaintiff's invention. The defendant sold one machine with special guaranty of the right to use, and received $1,000 in money and $3,000 in notes, on time, therefor. Upon demand of a machine by the purchaser, that might lawfully be used, which the defendant could not comply with, the contract was rescinded by agreement, leaving the money in the defendant's hands, against which the defendant has a claim of about the same amount, and the notes there, but not enforceable. The orator claims that the defendant should be charged with the |