The Steam Stone Cutter Company v. The Windsor Manufacturing Company.

The

profits of this machine, as upon a sale at $4,000. There is, however, no money, or the equivalent of money, arising from this transaction, belonging to the orator. The money received would not cover the actual cost of the machine. notes were always subject to the defence of want of title, or, at least, to be extinguished by recoupment of damages, from failure of title to the invention and breach of the guaranty, while they were held as subsisting securities, and, since then, they have been wholly inoperative. There is nothing here to be reckoned, to vary the above statement.

The plaintiff claims interest upon the amount in the defendant's hands, and the defendant denies any liability to account or be charged for interest. In Silsby v. Foote, (20 How., 378,) Mowry v. Whitney, (14 Wall., 620,) and Littlefield v. Perry, (21 Wall., 205,) interest upon profits of an infringement decreed to be paid was disallowed; in the first of the cases, without remark; in the second, with the remark that the profits were really damages unliquidated, upon which interest is not generally allowable, but that the Court would not say that in no possible case could interest be allowed; and, in the latter, with the remark, that profits actually realized were usually, in cases like that, the measure of unliquidated damages, that circumstances might arise which would justify the addition of interest, in order to give complete indemnity for losses sustained by wilful infringement, and that it would be for the Court to determine, upon the coming in of the new report in that case, accompanied by other evidence, whether the conduct of the defendants had been such as to subject them. to liability in that particular. The tendency, in cases prior to the Act of 1870, seems to have been toward confining the liability to account for gains and profits more strictly to those actually received, and, at the same time, towards recognition of a liability for interest on the profits received. Still, no rule is laid down as to when it should or should not be allowed.

In this case, the defendant is made to account only for money or its equivalent actually received and held by the de

VOL. XVII.—3

The Steam Stone Cutter Company v. The Windsor Manufacturing Company.

fendant, but belonging to the plaintiff. The master has found that the defendant began and continued the business in good faith, believing it was not infringing the orator's rights, but having knowledge, while making and selling the machines, of the orator's claims. It is argued, for the orator, that the duty of the master was merely to take and state the account, and that no question of good faith was before him. But, if the question of good faith was pertinent to any part of the accounting, it was as much before him as those things pertaining to any other part. There was no contract about any part of this liability, and none to pay interest more than to pay anything else; so, the defendant cannot be charged with interest, except for the wrongful detention of the plaintiff's money. If the defendant wilfully, without right, and knowing it was without right, took the plaintiff's patented invention and converted it into money, with the intention of keeping it, while it was kept the detention of it would be manifestly wrongful. Upon the finding, this taking was intentional and without right, but with belief of right. Knowledge of the orator's claims involved knowledge of the orator's patents, and the belief of right must have been founded in the expectation of defeating the patents. The defendant had a patent for the bow-string, as an improvement, but none for the machine covered by the orator's patents. It invaded the patents, taking the risk of its turning out to be rightful or wrongful. It has turned out to be wrongful, and, since the entry of the decree in the cause, October 7th, 1870, the money has been detained with full knowledge of the character of the detention. And the defendant was not ignorant of the amount, for its books showed the amount approaching toward accuracy.

In Ekins v. East India Co., (1 P. Wms., 395,) on an accounting for a ship and cargo, bought by an agent of the defendant, of a person having no power to sell, the Court charged the defendant with interest, and said: "If a man has my money by way of loan, he ought to answer interest; but, if he detains my money from me wrongfully, he ought, a

The Steam Stone Cutter Company v. The Windsor Manufacturing Company.

fortiori, to answer interest. And it is still stronger where one by wrong takes from me either my money, or my goods which I am trading with, in order to turn them into money." This decree appears to have been affirmed, on appeal to the House of Lords. (2 Bro. Parl. Ca., 382; 1 P. Wms., 397, note.) It was said by Lord Mansfield and Mr. Justice Wilmot, in Fisher v. Prince, (3 J. Burrow, 1,363,) that interest might be allowed by a jury, in trover, for money numbered or in a bag. It was allowed on money obtained by fraud and imposition, in Wood v. Robbins, (11 Mass., 504,) and on money detained by an officer, in People v. Gasherie, (9 Johns., 71.) This seems to be well settled in Massachusetts. (Hubbard v. Charlestown R. R., 11 Met., 124.) And, if the law of the State of Vermont, where the money was detained, should govern, as perhaps it ought to, the law is the same there. (Crane v. Thayer, 18 Vt., 162; Vt. & Canada R. R. Co. v. Vt. Central R. R. Co., 34 Vt., 2.) It is quite usual to charge a party with interest from the commencement of a suit, on account of the effect of it, as a demand, upon the mind of a party. (Hunt v. Nevers, 15 Pick., 500; Brewer v. Tyringham, 12 Pick., 547; Haven v. Foster, 9 Pick., 112.) And it seems not to be improper here, to charge the party with interest from the entry of the decree, because ever after that the detention was known to be wrongful. This seems the more just, because all of the money was not received until about that time, October 1st, 1870, according to the master's report, although some of it was received considerably before. This interest amounts to $7,836 17, which, added to the principal sum, $14,732 03, makes $22,598 20, to be paid by the defendant, the Windsor Manufacturing Company, to the plaintiff, as of the 6th day of August, 1879.

Let a

The exceptions to the master's report are overruled accordingly, and the report is accepted and confirmed. decree be thereupon entered, that the defendant, The Windsor Manufacturing Company, pay that sum, with costs, to the clerk, for the benefit of the plaintiff, and, in case the sum of $7,598 20, with the costs and interest thereon from said 6th

Sleeper v. Puig.

day of August, is not paid within thirty days from that day, that special execution issue, for the whole sum to be paid, at the expiration of said thirty days; and, in case that sum is so paid, and the balance of $15,000 is not paid within sixty days from said 6th day of August, with interest from that day, that special execution issue for the amount so remaining unpaid, at the expiration of said 60 days.

Aldace F. Walker and Chauncey Smith, for the plaintiff.

Wheelock G. Veazey and Edward J. Phelps, for the de

fendant.

HENRY J. SLEEPER AND OTHERS

vs.

EMILIO PUIG AND SANTIAGO PUIG.

A charter-party for the voyage of a vessel from New York to Santa Cruz, (Canary Islands,) and thence to Havana, Cuba, provided that the respondents were to be allowed, for the loading and discharging of the vessel, “dispatch for loading at New York and discharging at Havana; thirty running days for discharging at Santa Cruz;" and that, if the vessel should be longer detained by the respondents, demurrage, at so much per day, should be paid, day by day, for every day so detained: Held, that the customs and rules of the port of Havana were not to control as to the time for discharging there, but that the respondents were bound to take the cargo, at Havana, as rapidly as the vessel could deliver it.

By the rules of the port the cargo could be delivered only at the mole. The vessel came to anchor and was ready to deliver her cargo. There was no

room for her at the mole. She was delayed till room was found: Held, that, under the terms of the charter-party, the risk of delay in obtaining a place of discharge at the mole, was on the respondents, and not on the vessel.

(Before BLATCHFORD, J., Southern District of New York, August 12th, 1879.)

Sleeper v. Puig.

BLATCHFORD, J. By the charter-party the vessel was chartered to the respondents for a voyage from New York to Santa Cruz (Canary Islands) and thence to Havana, Cuba. The cargo from Santa Cruz to Havana was to be stone or other lawful merchandise. The charter money was to be $4,000 gold for the round voyage, and the vessel's port charges at the Canary Islands; one half of the charter to be "payable on the discharge of cargo at Santa Cruz, in cash, or in approved sixty days' bills of exchange on London, at $4 84 to the pound sterling, charterers' option; balance on delivery of cargo at Havana; free of all commissions." The respondents were to be allowed, for the loading and discharg ing of the vessel, "dispatch for loading at New York and discharging at Havana; thirty running days for discharging and loading at Santa Cruz;" and, in case the vessel should be longer detained by the respondents or their agents, demurrage was to be paid the vessel's agent at the rate of 35 silver dollars per day, day by day, for every day so detained. It was further provided, that the cargo or cargoes should be delivered alongside, within reach of the vessel's tackles; and that the vessel should "be consigned to charterers' friends at Santa Cruz and Havana, free of commission."

The libel alleges that the vessel took on cargo at Santa Cruz and arrived at Havana; that her master duly reported his readiness to discharge cargo on the 4th of April, 1874; that the agents of the respondents did not give the vessel dispatch in discharging, but neglected to discharge the cargo for 17 days over the necessary lay days, under the terms of the charter-party, so that there became due to the libellants, for demurrage, $672 35; that $212 24 is due to the libellants for balance of freight on the cargo discharged at Havana; and that the libellants paid for the respondents, at Havana, for extra expenses in discharging cargo, $49 26.

The answer sets up that the charter money was fully paid; that, when the vessel arrived at Havana, the consignees of the respondents, as soon as they were notified of her arrival, immediately proceeded to assist her master in procuring a