The Zach Chandler. weather, which compels the master to lay up his vessel at an intermediate port only delays the voyage until the opening of navigation in the ensuing season, when it may be resumed and completed. It is also admitted that the rate of seamen's wages for voyages undertaken late in the fall on our lakes is much higher than for similar services in the spring. Under these circumstances it seems to me that the court should hold a contract like the one now before us, to be made by both parties, in view of the contingency that it is liable to terminate by the closing of navigation from the inclemency of the weather before the completion of the voyage. It is a contract for the voyage from the port of departure to the port of destination, if it can be completed that season. If the season closes by the setting in of winter weather, so as to make the further prosecution of the voyage unsafe for life or property, then the master must have the right to lay up his vessel at any intermediate port of safety, and to discharge his crew; because, to be compelled to pay full wages during the winter and until the completion of the voyage in the spring, might not only consume the entire earnings of the voyage, but even leave the vessel burdened with debt. If the master cannot terminate the contract with his men on some equitable terms, when he is compelled to lay up his vessel, he would be tempted to take too great risks in pursuing and attempting to complete the voyage, and thereby endanger not only the lives of his men but the property in his charge, merely because he was under so heavy an obligation to his men, if he must either get them to their place of destination that fall, or be liable for their wages and support during the entire winter. But a master ought not to have the right arbitrarily to lay up his vessel and discharge his men at a way port except upon equitable terms to them. From the nature of the case, the master must exercise his The Zach Chandler. discretion as to the extent to which he will pursue and attempt the completion of his voyage, and the men, as a rule, must perform their duty by working the ship under his orders until he decides to lay up. To disobey orders and refuse to work the ship would be, under most circumstances, mutiny. But when the master decides to lay up and to exercise his right to terminate the contract, he should be allowed to do so only on condition of making a just and proper provision for the men; he should certainly pay the wages which have been earned at the stipulated rate up to the time of the laying up of the vessel. In this case I have no doubt that equity required the master to pay the expenses of the men back to the port of departure. Such may not be the rule in all cases, and I do not conceive it necessary in this case to lay down a rule for all cases. Possibly cases may occur where it would be more consonant with the rights of all that the master should pay the expenses of the men to the port of destination rather than to the port of departure; especially when the vessel was laid up nearer the port of destination than the port of departure, because, if by the contract the master had the right to discharge his crew at the port of destination, they could not complain if furnished transportation to that point. This would leave the men just where they would have been left if the voyage had been completed that fall. Of course the parties can by their contract expressly provide for and settle their respective rights in such a contingency as this, and their contract, and not the rule laid down in this case, would then govern. I only intend to decide what the rights and obligations of the parties to this suit are, and other suits coming within the facts of this case. I am surprised to find there is a great dearth of direct authority upon the questions involved in this case. The case of The Lioness' decided by Judge Treat, of the Eastern 'Worth vs. The Steamboat Lioness, 2 McCrary, 208. The Zach Chandler. District of Missouri, was analogous in many of its features to this. The Lioness was a tow boat engaged upon the Ohio and Mississippi rivers, her home port being Pittsburgh. Her crew were shipped in the Spring for the season. The boat was laid up by the ice at a small landing about twenty miles below St. Louis. In that case the learned judge allowed the men their wages until the time of their arrival at their home port as well as their expenses. I do not find any warrant in the authorities cited in that case for the payment of wages, as a rule, until the arrival of the crew at the port of shipmentalthough that case was undoubtedly rightly decided in view of its special facts. In the case of an American vessel sold in a foreign port before the completion of her voyage, the master has a right to discharge his seamen, but he must pay them three months' wages and their expenses home, or make some suitable provision approved by the American consul at the port where the discharge takes place, but this law affords no criterion or rule for the government of the master in a case like this. I am, therefore, of opinion that the report and finding of the commissioner in this case should be sustained. The exceptions to the report will be overruled and a decree entered in conformity with the recommendation of the commissioner awarding the libellants their wages and their expenses from Escanaba to Chicago, together with the costs of this suit to be taxed. NOTE.-On appeal to Drummond, Circuit Judge, this decision was fully affirmed by him, thus establishing the law on this question within this circuit.-[REPORTER. Pattee vs. Moline Plow Co. JAMES H. PATTEE et al. vs. MOLINE PLOW COMPANY et al. CIRCUIT COURT-NORTHERN DISTRICT OF ILLINOIS-JUNE, 1881. IN EQUITY. 1. PATENTS FOR CULTIVATORS-NOVELTY.-The patents of complainants and of the patentees under whom they hold, for improvements in cultivators, so far as they claim an exclusive right to the use of an arched axle, with a two-way joint or hinge in the middle, by which lateral and vertical motion of the plow beam is secured, and the plow held in an upright position, were anticipated by prior patents,and cannot be sustained, for want of novelty. 2. PATENT FOR COMBINATION--The fact that complainants had a patent for a certain combination of old parts of a machine, did not impair the right of defendants to combine the same parts, so long as they did not use the same combination shown in complainants' patent. 3. The court finds that Pattee, the complainant, was not the first to conceive and embody in working form, the idea of a tongueless straddlerow cultivator. 4. Discussion of various patents for improvements in cultivators. A. McCallum, for complainants. West & Bond, for defendants. BLODGETT, J.---The bill in this case alleged the issue of the following patents by the United States Patent Office: 1st. Patent issued to J. Schroeder, September 24th, 1867; re-issued to complainants, February 6, 1877. 2nd. Patent issued to M. Eichholtz, April 6th, 1869; reissued to complainants, June 12, 1877. 8d. Patent issued to C. P. Norton, October 18, 1870; reissued to I. P. Pillsbury, August 26, 1873. Pattee vs. Moline Plow Co. 4th. Patent issued to James H. Pattee, March 5, 1872; re-issued to complainants, October 6, 1874. 5th. Patent issued to T. Poling, August 13, 1872. All of which patents were for improvements in cultivators, and have come by assignment into the ownership and control of the complainants. It is further charged that the defendants, disregarding the exclusive right secured by the aforesaid patents to the complainants, have made and sold, within this district, cultivators according to, and in which are embodied, devices and inventions covered by the said patents, as the same now stand reissued. The bill contains the usual prayer for an injunction, and an accounting for profits and damages. The defendants, by their answer, deny the validity of the complainants' several patents. First. For want of novelty. Second. Because the re-issued patents are for different inventions than those shown by the original specifications and drawings. Third. They deny that the cultivators made by them infringe all or any of the complainants' patents. It appears from the proof, as part of the history of the patents in question, that James H. Pattee, one of the complainants, devised what he considered a valuable improvement in cultivators, involving what he deemed a radical innovation on the then mode of constructing this implement, which was to make a two-horse straddle-row cultivator without a tongue or pole-in other words, a tongueless cultivator. The Pattee model, which is in evidence, shows the general idea of his invention—a cultivator, with the ordinary device of an arched axle for straddling the rows of corn or other plants to be tilled; the axle, jointed near the horizontal arms which form the journals for the wheels, and supported on |