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(289 F.)

vertical corrugations 6 formed in the vertical web 1, thus increasing the vertical load-sustaining capacity. This is aptly described in the Brewer specification as follows:

"At the ridge the vertical load on the carline is greater than at the eaves. The vertical depth of the carline may be made greater at the ridge than at the eaves, to make the carline better adapted to support this varying vertical load; but the web cannot be made very deep at the ridge without being liable to buckle. In applicant's construction the vertical corrugations stiffen the web and coact with the greater depth at the ridge to make the carline strong and yet light."

Figures 4 and 5 of the Russell application are as follows:

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The web 37 is designed to co-operate with the wooden beam 19a, and from the following portion of the specification it appears that the Sshaped web performs an entirely different function from that designed by Brewer:

"The improved structure of carline described in the foregoing specification has certain marked features of advantage, among which may be noted * the curved web 37 which is arranged at an angle to the perpendicular, and is therefore more rigid and offers greater resistance to twisting strains than would be the case were the web vertically arranged."

Both parties seem to be providing against vertical and horizontal stresses by inherently different methods. Brewer's web is in a vertical position to resist vertical strains to a maximum extent, and at the same time provide against horizontal strains through the corrugations 6. Russell's web is corrugated longitudinally, requiring that it be placed in an inclined position, in order to take care of both the vertical and longitudinal strains.

The departure here made from the prior art in the nature or distribution of stresses is small. It is a short step forward in a well-developed field. The vertical corrugations in the Brewer web increase the strength of the web for vertical load-sustaining purposes, while Russell sacrifices this function by using longitudinal corrugations to strengthen against buckling and torsional stresses. Indeed, the only merit in Russell's structure is through co-operation with the wooden beam shown in figures 4 and 5.

Russell, when he petitioned the Board of Examiners in Chief for a rehearing, conceded:

"That the single claim of the Brewer patent is limited to a vertical flange, and that appellant, Russell, is not able to make such Brewer claim in terms."

The reason for this admission is apparent, since the essence of his invention lies in the inclination of the web from the vertical line and the rounding thereof into corrugations that merge with the top and bottom flanges. It is not clear how Russell can claim even a “substantially vertical" web. The position of the web is so adverse to such a construction that we are compelled to hold that he cannot make the claim, and the motion to dissolve should have been sustained. The decision of the Commissioner is reversed.

FOWLER v. WASHINGTON LOAN & TRUST CO.

(Court of Appeals of District of Columbia.

Submitted April 4, 1923. De

cided May 7, 1923.)

No. 3911.

1. Judgment 888-Agreement for settlement with one judgment debtor held to satisfy judgment against all.

An agreement between a judgment creditor and one of three judgment debtors, reciting a settlement of all claims between the parties, including the judgment, and containing an agreement by the creditor to have his attorney enter satisfaction, shows the settlement satisfied the judgment as a matter of fact against all three defendants, and not only as against the defendant who was a party to the settlement.

2. Judgment 888-Debtor can rely on agreement under seal with another as satisfaction of judgment.

Though one who was not a party to a contract under seal made for his benefit cannot maintain an action on the contract, he can rely on that contract as a satisfaction of the judgment in an action brought against him on the judgment to the same extent as he could rely on a payment in cash of the judgment by another.

Appeal from the Supreme Court of the District of Columbia. Action by the Washington Loan & Trust Company, executor of the will and estate of Brainard H. Warner, deceased, against Charles D.. Fowler and others. Judgment for plaintiff against the named defendant, and that defendant appeals. Reversed and remanded.

John E. Laskey and Richard C. Thompson, both of Washington, D. C., for appellant.

W. C. Sullivan, of Washington, D. C., for appellee.

Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

SMYTH, Chief Justice. The Washington Loan & Trust Company, as executor of the will of Brainard H. Warner, instituted an action of debt against George W. Turnburke, Charles D. Fowler, and Hosea B. Moulton to recover upon a judgment which Warner had obtained

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(289 F.)

against them. Turnburke was not served, and the action proceeded against Fowler and Moulton. The judgment was established, as was the fact that it remained unsatisfied of record. There was testimony that during Warner's life he entered into the following agreement with Moulton:

"For and in consideration of one dollar, and other valid considerations hereinafter named, witnesseth: That said parties have fully adjusted and settled all matters, debts, and claims between them of every kind and description, including the judgment of Brainard H. Warner against the North Mt. Vernon Land Company and Hosea B. Moulton and others, at Law No. 55604, Supreme Court of the District of Columbia, which said judgment said Warner agrees to have his attorney enter satisfied. Said Hosea B, Moulton, in consideration thereof, hereby cancels all of his claims against said Warner on account of real estate transactions and any and all matters. This agreement is signed and executed as a receipt and settlement in full of all of our claims and demands against each other.

"Witness' our hands and seals.

Brainard H. Warner. "Hosea B. Moulton.

[Seal.]
[Seal.]"

One witness gave testimony tending to indicate that the agreement was not made. Fowler rested his case on the agreement, contending that it released, not only Moulton, but all of Moulton's codebtors. The court directed a verdict against Fowler on the ground that the agreement showed a settlement between Warner and Moulton alone, and then submitted to the jury the question as to whether or not the agreement was entered into between Warner and Moulton, saying that, if the jury found it was, they should return a verdict in favor of the latter. The jury decided against Fowler, as directed, and in favor of Moulton. From the judgment on the verdict, Fowler appeals.

Two questions are presented: First, does the agreement, if established, show that the judgment was satisfied in fact as to all the defendants or as to Moulton only? And, second, if it does show the judgment was so satisfied, can Fowler avail himself of it?

[1] (1) If the agreement had been fully carried out by Warner, the judgment would have been satisfied of record as to all the defendants therein, because it says, "Said judgment said Warner agrees to have his attorney enter satisfied." The agreement does not say the judgment shall be satisfied of record as to Moulton only, but satisfied without any qualification or limitation. The quoted words interpret the agreement and demonstrate its meaning. Moreover, the agreement recites that the parties thereto "have fully adjusted and satisfied all matters, debts, and claims between them of every kind and description, including the judgment against Hosea B. Moulton and others." It does not say that it shall be satisfied, but that it has been. It declares the satisfaction to be an accomplished fact. The only thing left to be done was the entry of the satisfaction on the record; but failure to make the entry did not keep the judgment alive. From this it follows, in our opinion, that if Fowler can take advantage of the agreement, he is entitled to the same treatment as that accorded to Moulton by the trial court.

*

*

[2] (2) Counsel for the loan and trust company urges with much earnestness that because the agreement is under seal, and because, as he asserts, the benefit flowing from it, if any, to Fowler, is not direct,

but incidental only, he cannot maintain an action upon it, and he cites decisions of the Supreme Court of the United States to sustain him. But the weakness of his position lies in the fact that Fowler is not seeking to maintain an action upon it. Fowler points to the agreement as proving, or tending to prove, that the judgment was in fact satisfied, though not as a matter of record. Suppose Moulton had paid Warner in cash the full amount of the judgment; could not Fowler plead that fact in bar of this action? We think he could, because Warner could not demand that the judgment be satisfied twice. This is elementary. Now, there is no distinction in principle between what we have supposed and what was done. The agreement does not show that money passed, but that is immaterial. What Warner regarded as enough to satisfy the judgment was done, and that is all we are concerned about, always assuming, of course, that the agreement was entered into and became effective, which are facts that must be proved. If the jury should believe that the agreement was made, then there should be a verdict for Fowler.

We therefore reverse the judgment, with costs, and remand the cause for further proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded.

COOPER v. PORTER.

(Court of Appeals of District of Columbia. Submitted March 13, 1923. Decided May 7, 1923.)

No. 1574.

Patents 91 (4)—Evidence held to show installation constituted reduction to practice.

Evidence in interference proceedings held to show that an installation made by the junior party before the earliest date to which the senior party was entitled included a pump, as required by the counts in issue, so as to establish reduction to practice on the date of the installation.

Appeal from the Commissioner of Patents.

Interference proceeding between Waldren H. Cooper and Hollis P. Porter. From a decision awarding priority to Porter, the senior party, Cooper appeals. Reversed, and priority awarded to Cooper.

A. P. Greeley, of Washington, D. C., and A. E. Young, of Pittsburgh, Pa., for appellant.

John F. Heine, of Elizabeth City, N. J., and W. W. Burns, of Washington, D. C., for appellee.

Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice. Appeal from a decision of an Assistant Commissioner of Patents in an interference proceeding, overruling the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(289 F.)

decisions of the Examiner of Interferences and the Board of Examiners in Chief and awarding priority of invention to Porter.

The issue is expressed in ten counts, of which the first, here reproduced, is illustrative:

"1. The combination of an oil well pump, a suction line serving to conduct a flow of oil and gas therefrom, and means associated with said line for separating the oil from the gas, said line operative as a pressure reduction means for said pump."

The point upon which the decision turns is whether there was present an oil well pump in the apparatus installed and used by Cooper at the E. S. Fisher farm well No. 3.

Porter, the senior party, took no testimony, and therefore is restricted to his filing date.

Oil well pumps being old, the drawings of neither application specifically disclosed this element, but the claims originated with Cooper. Prior to this invention, the oil was pumped into an open tank, which allowed the escape of gases. The object of the invention is to conserve these gases, and this is accomplished by pumping the oil into a closed tank connected to the usual line extending from the casing head to a vacuum pump, thereby putting the tank and the line carrying the oil to the tank under the same vacuum existing in the casing. Under this construction, the vacuum pump will draw the gases and vapors of volatile hydrocarbons from the tank so that the gasoline content may be extracted by old methods. That Cooper had a complete conception of the invention when the apparatus at the Fisher farm was installed is clearly apparent, we think, from the evidence. This installation undoubtedly was made as a test of the invention. Cooper in his testimony said:

"There was a pipe or lead line from the well which was connected from the tubing to the top of this tank, and it pumped the oil; water and whatever gas came with the oil went into that separating tank, and it was so arranged that the oil dripped from this pipe in the top of the tank to the bottom. There was a hole in the top of the tank, and the pipe connected that to the suction line between the plant and the casing head. That made the same vacuum on the tank that there was at the plant, and made the same vacuum on the tubing that there was in the casing. Then the question was to get the oil that was pumped into the tank from the well into a line that runs to the flow tank and not destroy the vacuum." (Italics ours.)

This and other testimony to the same effect was fully corroborated, and, as found by the lower tribunals, this and the evidence as to other elements necessary only in the use of a pump, clearly indicates that the pump was used. As stated by the Examiners in Chief:

"Incidentally the use of stuffing box and sucker at top of the well tubing show a pump to the same extent as is disclosed by Porter's application as a basis for copying the claims from Cooper's patent. If the pump barrel and plunger were not present, there would be no apparent reason for the use of a stuffing box and sucker rod and a cap would probably have been substituted as more efficient, and there would, furthermore, be no necessity even for the tubing. It is admitted or is obvious that tubings or casings having pump barrels and plungers or valves operated by sucker rods, etc., are well known in the art, and that they are operated by the difference in pressure produced beneath the plunger on the upward stroke relative to the atmospheric pressure on the oil or water surface outside the casings. No test of the oper289 F.-40

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