silent, and which is not inconsistent with its terms, may be proven by parol, if, under the circumstances of the particular case, it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon its face is couched in such terms as import a complete legal obligation, without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing. 1 Greenl. Ev. § 275.

And

There is no pretense here of any fraud, accident, or mistake. The written contract was in all respects unambiguous and definite. The machine which the company sold, and which Seitz bought, was a No. 2 size refrigerating machine, as constructed by the company, and such was the machine which was delivered, put up, and operated in the brewery. A warranty or guaranty that that machine should reduce the temperature of the brewery to 40° Fahrenheit, while in itself collateral to the sale, which would be complete without it, would be part of the description, and essential to the identity of the thing sold; and to admit proof of such an engagement by parol would be to add another term to the written contract, contrary to the settled and salutary rule upon that subject. Whether the written contract fully expressed the terms of the agreement was a question for the court, and since it was in this instance complete and perfect on its face, without ambiguity, and embracing the whole subject-matter, it obviously could not be determined to be less comprehensive than it was. this conclusion is unaffected by the fact that it did not allude to the capacity of the particular machine. To hold that mere silence opened the door to parol evidence in that regard would be to beg the whole question. We are clear that evidence tending to show the alleged independent collateral contract was inadmissible. Martin v. Cole, 104 U. S. 30; Gilbert v. Plough Co., 119 U. S. 491, 7 Sup. Ct. Rep. 805; The Delaware, 14 Wall. 579; Naumberg v. Young, 44 N. J Law, 331; Conant v. Bank, 121 Ind. 323, 22 N. E. Rep. 250; Mast v. Pearce, 58 Iowa, 579, 8 N. W. Rep. 632, and 12 N. W. Rep. 597; Thompson v. Libby, 34 Minn. 374, 26 N. W. Rep. 1; Wilson v. Deen, 74 N. Y. 531; Robinson v. McNeill, 51 Ill. 225. Failing in respect of the alleged express warranty, plaintiff in error contends, secondly, that there was an implied warranty, arising from the nature of the transaction, that the machine should be reasonably fit to accomplish certain results, to effect which he insists the purchase was made. It is argued that the evidence tended to establish that the plaintiff knew that the defendant had been cooling his brewery with ice, and that the object of obtain

ing the machine was to render unneces sary the expense of purchasing ice for that purpose, and that unless the machine would cool it to the same extent, or about the same, as the ice did, it would be worthless, so far as he was concerned. It is not denied that the machine was constructed for refrigerating purposes, and that it worked and operated as a refrigerating machine should; but it is said that it did not so refrigerate as to reduce the temperature of the brewery to 40° Fahrenheit, or to a temperature which would enable defendant to dispense with the purchase of ice. The rule invoked is that where a manufacturer contracts to supply an article which he manufactures, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment of the manufacturer, the law implies a promise or undertaking on his part that the article so manufactured and sold by him for a specific purpose, and to be used in a particular way, is reasonably fit and proper for the purpose for which he professes to make it, and for which it is known to be required; but it is also the rule, as expressed in the text-books and sustained by authority, that where a known, described, and definite article is ordered of a manufacturer, although it is stated by the purchaser to be required for a particular purpose, still, if the known, described, and definite thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Benj. Sales, § 657; Add. Cont. bk. 2, c. 7, p. *977; Chanter v. Hopkins, 4 Mees. & W. 399; Ollivant v. Bayley, 5 Q. B. 288; District of Columbia v. Clephane, 110 U. S. 212, 3 Sup. Ct. Rep. 568; Bridge Co. v. Hamilton, 110 U. S. 108, 3 Sup. Ct. Rep. 537; Hoe v. Sanborn, 21 N. Y. 552; Deming v. Fuster, 42 N. H. 165.

In the case at bar the machine purchased was specifically designated in the contract, and the machine so designated was delivered, put up, and put in operation in the brewery. The only implication in regard to it was that it would perform the work the described machine was made to do, and it is not contended that there was any failure in such performance. This is not the case of an alleged defect in the process of manufacture known to the vendor, but not to the purchaser, nor of presumptive and justifiable reliance by the buyer on the judgment of the vendor rather than his own, but of a purchase of a specific article, manufactured for a particular use, and fit, proper, and efficacious for that use, but in respect to the operation of which, in producing a desired result under particular circumstances, the buyer found himself disappointed. In short, there was no express warranty that the machine would cool 150.000 cubic feet of atmosphere to 40° Fahrenheit, or any other temperature, without reference to the construction of the particular brewery or other surrounding circumstances, and, if there were no actual warranty, none could be imputed. We may add that, in the light of all the evidence in the record, treated as competent, we think no verdict could be permitted to stand which proceeded upon the ground of the existence of such a war

ranty as is contended for. The alleged antecedent representations as to whether the machine possessed sufficient refrigerating power to cool this brewery were no more than expressions of opinion, confessedly honestly entertained, and dependent upon other elements than the machine itself, concerning which plaintiff in error could form an opinion as well as defendant; and the conduct of plaintiff in error in demanding, two days after the contract was executed, a written guaranty that the machine company would cool his building to 3% Reaumur, (or 40° Fahrenheit,) and keep it at that all the time, and in acquiescing in the company's refusal to give the guaranty for reasons stated, and in thereupon afterwards ordering the company to go on with the work, as exhibited in the correspondence between the parties, seems to us to justify no other conclusion than that reached by the verdict. The judgment of the circuit court is affirmed.

BRADLEY and GRAY, JJ., were not present at the argument, and took no part in the decision of this case.

(141 U. S. 441)

CROSBY STEAM-GAGE & VALVE Co. v. ConSOLIDATED SAFETY-VALVE CO.

(November 2, 1891.)

PATENTS FOR INVENTIONS-DAMAGES FOR INFRINGEMENT CALCULATION OF INFRINGER'S PROFITSINTEREST.

1. When only the profits made by one infringing a patent are awarded as damages, it is immaterial in the calculation thereof whether or not the owner of the patent was using the invention in articles sold by him.

2. When, in view of the prior state of the art, the entire commercial value of an infringing article is due to the use of the infringing feature, the profits awarded as damages should be calcu lated with reference to the entire infringing article, notwithstanding that it is made under a patent showing an additional feature, which feature, however, is not covered by the claims thereof.

3. In the calculation of profits made on an Infringing article, the manufacturer thereof is not entitled to deduct the cost of certain experimental articles of the same kind made by him, and afterwards destroyed without being offered for sale, as this was a loss incurred through his unlawful invasion of the patentee's rights.

4. When damages are awarded for infringement of a patent, interest should be allowed thereon from the date of filing of the master's report, whereby the amount of damages was as certained. Railroad Co. v. Turrill, 4 Sup. Ct. Rep. 5, and Tilghman v. Proctor, 8 Sup. Ct. Rep. 894, followed.

44 Fed. Rep. 66, affirmed.

Appeal from the circuit court of the United States for the district of Massachusetts.

which were overruled, and a decree entered for complainant in the sum of $40,344.59. 44 Fed. Rep. 66. Defendant appeals therefrom. Affirmed.

J. H. Millett and Edmund Wetmore, for appellant. Thos. Wm. Clarke, for appellee.

The

BLATCHFORD, J. On the 27th of May, 1879, the Consolidated Safety-Valve Company, a Connecticut corporation, brought a suit in equity in the circuit court of the United States for the district of Massachusetts, against the Crosby Steam-Gage & Valve Company, a Massachusetts corpo. ration, for the infringement of letters patent No. 58,294, granted to George W. Richardson, September 25, 1866, for an improvement in steam safety-valves. claim of that patent was as follows: "What I claim as my improvement, and desire to secure by letters patent, is a safety-valve with the circular or annular flange or lip, c, c, constructed in the manner, or substantially in the manner, shown, so as to operate as and for the purpose herein described." On the 2d of June, 1879, the same plaintiff brought a suit in equity in the same court against the same defendant, for the infringement of letters patent No. 85,963, granted to the same George W. Richardson, January 19, 1869, for an improvement in safety-valves for steam-boilers or generators. The claim of that patent was as follows: "What I claim as new, and desire to secure by letters patent, is the combination of the surface beyond the seat of the safetyvalve, with the means herein described for regulating or adjusting the area of the passage for the escape of steam, substantially as and for the purpose de

scribed.

"

of

In the answers in the two suits, the defense of want of novelty was set up, and alleged anticipating patents were referred to; infringement was denied; and it was averred that the valves made and sold by the defendant were the inventions George H. Crosby, and were described in two patents granted to him and owned by the defendant, one, No. 159,157,* dated* January 26, 1875; and the other, No. 160,167, dated February 23, 1875. The same proofs were taken in the two suits, and they were heard together in the circuit court; in each suit a decree was made dismissing the bill, (7 Fed. Rep. 768;) and from each decree the plaintiff appealed to this court. Non-infringement was found by the circuit court. This court (113 U. S. 157, 5 Sup. Ct. Rep. 513) reversed the decree in each case, and directed the circuit court to enter a decree in each case, sustaining the validity of the patent, decreecount of profits and damages. On re

suit on the patent of 1866, the circuit court, on the 18th of May, 1885, entered a decree in conformity therewith, and for a recovery by the plaintiff of profits and damages from February 15, 1879, and or. dered a reference to a master to take an account of such profits and damages. A like decree was made on the mandate in the suit on the patent of 1869. The date

ants were due to the Richardson invention | of 1866, and, as the Richardson invention of 1869 belonged also to the complainants, and as the complainants and defendants were respectively the same in each case.1,184 relating to the said invention of 1866, and 1.199 relating to the invention of 1869, -and as the said period from February 15, 1879, to September 25, 1883, was included within the period to be covered by the accounting in each case, no injustice is done the defendants in acceding to the complainants' claim in this regard; and this is esecially so in view of the fact that the defendants claimed that the adjustable device as shown in the Richardson patent of 1869 is worthless as such, and that the cost of the Crosby valve is less without the said so-called 'adjustable ring' and is a better and more useful safety appliance." The master also found that the plaintiff had suffered no damages in addition to the profits to be assessed against the defendant, in regard to the patent of 1866.

The defendant's exceptions to the master's report cover the following points: (1) The disallowance to the defendant of the sum of $1,978.34; (2) the finding that the Richardson valve sold by the plaintiff contained the invention set forth in the patent of 1866; (3) the finding that the entire commercial value of the valves made and sold by the defendant between Feb. ruary 15, 1879, and September 25, 1883, was due to the improvement covered by the patent of 1866; (4) the failure to find that the plaintiff was entitled to recover only for the ascertained value of the improvements covered by the two patents over and above the value of previous safety-valves known to the art and open to be used by the defendant; (5) the failure to require the plaintiff to show what in fact was the value attributable to the improvement of 1866; (6) the failure to require the plaintiff to show what was the value of the improvement of 1866, in comparison with the value of safety-valves previously known to the art and free to the defendant to be used; (7) the failure to find that the defendant was liable to account to the plaintiff for only a nom. inal sum; (8) to the same purport as exception 7; (9) the failure to ascertain what part of the profits of the defendant was due to the two patented improvements of Crosby; and (10) the failure to ascertain what part of the profits was due to the employment of the improvement covered by the patent of 1869.

The circuit court, held by Judge COLT, says in its opinion: "In judging of the correctness of the method pursued by the master in his estimation of defendants' profits, the construction put upon the Richardson 1866 patent, and the language used in respect thereto, as embodied in the opinion of the supreme court, cannot be disregarded. It was clearly the duty of the master in his findings, as it is also the duty of the court at the present time, to give fuli force and effect to the opinion of the supreme court. If the contention of the defendants is sound, that the supreme court, in their interpretation of the Richardson 1866 patent, gave too much prominence to the feature known as the

huddling chamber with a strictured orifice,' it is for them, upon appeal, to obtain some modification of that opinion; but so long as it stands as the opinion of that court, the views therein expressed should be strictly carried out. The position, therefore, taken by the defendants, that the complainants are only entitled to nominal damages, because, as they say, the Richardson valve of commerce does not contain the huddling chamber with a strictured orifice, or, in other words, a huddling chamber with an aperture for the exit of the steam into the open air which is of smaller area than the aperture at the ground joint, I cannot regard as sound in view the opinion of the supreme court. That court construed the Richardson patents, and it held that defendants' valve was within those patents, and it gave a broad construction to the Richardson 1866 patent." The opinion then says that the court ap-3 proves and adopts the conclusions reached by the master in the paragraphs before quoted from his report. In the former opinion of this court, at 113 U. S. 170, 5 Sup. Ct. Rep. 520, it was said: "In the present case the defendant has introduced in evidence the before-named English patents to Ritchie, Webster, and Hartley, and the English patent to William Naylor, No. 1,830, granted July 1, 1863; and also letters patent of the United States, No. 10,243, granted to Henry Waterman, November 15, 1853, and the reissue of the same, No. 2,675, granted to him July 9, 1867. In view of all these patents, and of the state of the art, it appears that Richardson was the first person who described and introduced into use a safety-valve which, while it automatically relieved the pressure of steam in the boiler, did not, in effecting that result, reduce the pressure to such au extent as to make the use of the relieving apparatus practically impossible, because of the expenditure of time and fuel necessary to bring up the steam again to the proper working standard. His valve, while it automatically gives relief before the pressure becomes dangerously great, according to the point at which the valve is set to blow off, operates so as to automatically arrest with promptness the reduction of pressure when the boiler is relieved. His patent of 1866 gave a moderate range of pressure, as the result of the proportions there specified, and his patent of 1869 furnished a means of regulating that range of pressure, by a screw-ring, within those narrow limits which are essential in the use of so subtle an agent as steam. In regard to all the above patents adduced against Richardson's patent of 1866, it may be generally said that they never were, in their day, and before the date of that patent, or of Richardson's invention, known or recognized as producing any such result as his apparatus of that patent produces, as above defined. Likenesses in them, in physical structure, to the apparatus of Richardson, in important particulars, may be pointed out, but it is only as the anatomy of a corpse resembles that of the living being. The prior structures never effected the kind of result attained by Richardson's appara

tus, because they lacked the thing which gave success. They did not have the retarding stricture which gave the lifting opportunity to the huddled steam, combined with the quick falling of the valve after relief had come. Taught by Richardson, and by the use of his apparatus. it is not difficult for skilled mechanics to take the prior structures, and so arrange and use them as to produce more or less of the beneficial results first made known by Richardson; but, prior to 1866, though these old patents and their descriptions were accessible, no valve was made producing any such results. Richardson's patent of 1866 states that the addition to the head of the valve terminates in an an nular lip, which fits loosely around the valve-seat, and is separated from it by about 1-64 of an inch for an ordinary spring, and a less space for a strong spring, and a greater space for a weak apring, forming an annular chamber, and regulating the escape of the steam; that the steam, when the valve is lifted, passes beyond the valve-seat, and into the annular chamber, and acts against the increased surface of the valve-head, and tuus overcomes the increasing resistance

the spring due to its compression, and fits the valve higher, and the steam escapes freely into the open air, until the pressure is sufficiently reduced, when the spring immediately closes the valve. It is not shown that, before 1866, any known valve produced this result.

The opinion also said: "It appears to have been easy enough to make a safetyvalve which would relieve the boiler, but the problem was to make one which, while it opened with increasing power in the steam against the increasing resistance of a spring, would close suddenly, and not gradually, by the pressure of the same spring against the steam. This was a problem of the reconciliation of antagonisms, which so often occurs in mechanics, and without which practically successful results are not attained. What was needed was a narrow stricture to hold back the escaping steam, and secure its expansive force inside of the lip, and thus aid the direct pressure of the steam from the boiler in lifting the valve against the increasing tension of the spring, with the result that, after only a small, but a sufficient, reduction in the boiler pressure, the compressed spring would, by its very compression, obtain the mastery and close the valve quickly. This problem was solved by Richardson, and never before. patent of 1869 describes the arrangement and operation of the whole apparatus, with the adjustable ring, thus: When the pressure of the steam lifts the valve, the steam acts against the surface of an annular space between the bevel of the valve-seat and the downward projecting flange of the cap-plate, to assist in holding up the valve against the increasing resistance of the spring. The aperture between the valve and its seat is always greater than that between the flange and the upward-projecting rim, and thus the steam in the annular space assists in hold. ing up the valve till the boiler pressure falls below that at which the valve opened.

His

The difference between the closing pressure and the opening pressure depends on the distance between the flange and the rim. There is a central aperture in the cap, through which the steam escapes when the valve is lifted, which is surrounded by a projecting cylindrical flange, threaded on the outside, to which is fitted a threaded ring, which can be turned up or down and secured by a set-screw. By this means, the area of the aperture for the escape of steam beyond the valve-seat is adjustable, the space being largest when the ring is down and smallest when the ring is up.'"

The opinion then considers the prior patents of Ritchie, Webster, and Hartley, and holds that they did not anticipate Richardson's invention of 1866. In regard to the Webster patent it says: "The Webster patent shows a huddling chamber and a stricture. But the evidence shows that valves made with the propor tions shown in the drawing of Webster work with so large a loss of boiler pressure, before closing, as to be practically and economically worthless. Webster's patent describes a means of making the area for the escape of steam adjustable, consisting in adjusting up and down, on a smooth valve-stem, a sliding collar or flange, and fixing it in place by a set-screw. But it does not show the screw-ring of Richardson, with its minute delicacy of adjustment and action." Further it says: "Richardson is therefore entited to cover, by the claim of his patent of 1866, under the language, a safety-valve with the circular or annular flange or lip, c, c, constructedin the manner, or substantially in the manner, shown, so as to operate as and for the purpose herein described,' a valve in which are combined an initial area, an additional area, a huddling chamber beneath the additional area, and a strictured orifice leading from the huddling chamber to the open air, the orifice being proportioned to the strength of the spring, as directed. The direction given in the patent is that the flange or lip is to be separated from the valve-seat by about 1-64 of an inch for an ordinary spring. with less space for a strong spring, and more space for a weak spring, to regulate the escape of the steam, as required. "The Richardson patents have a disk valve, an annular huddling chamber, an annular stricture at the outer extremity of the radii from the center of the valve, an additional area which is radially beyond the disk valve, and a cylindrical steam way. But, before 1866, an annular form of safety-valve was well known. Such a valve necessarily requires an annular steam way. In the defendant's valve, (complainant's Exhibit A,) the same effects, in operation, are produced as in the Richardson valve, by the means described in Richardson's claims. In both structures the valve is held to its seat by a spring, so compressed as to keep the valve there until the pressure inside of the boiler is sufficient to move the valve against the pressure of the spring, so that the steam escapes through the ground joint into a chamber covered by an extension of the valve, in which chamber the steam acts expansively against the extended surface,