Page:Federal Reporter, 1st Series, Volume 10.djvu/687

 FAOIiKS V. KAMP. 675 �Faulks and others v. Kamp and another.* �(Circuit Court, 8. 1). Nm York, Febraary 13, 1882.) �1. Lbtters Patbnt— Balino SnonT-Cur Hat— Basis of Profits. �Where the only claim of the patent infringed was for " pressing and binding short-cut hay into baies," short-cut hay being known before, the only profits to be allowed for such infringement are the extra profit due to selling such hay when baled, over selling it whea loose or prepared for market in other known ways. �2. BaMB— SaME— BURDEN OF Proof. �It Is the duty of the plaintiffs to glve evidence separating such profits; otherwise only nominal profits can be allowed. �In Equity. On exceptions to master's report. �C. N. Judson, for plaintiffs. �J. C. Clayton, for defendants. �Blatchfobd, g. J. The first claim of the patent, the only one in- fringed, is for pressing and binding short-cut hay into baies. Short- cut hay was known before. Pressing and binding it into baies made no change in its p'roperties or quantity, but enabled it to be more con- veniently handled for sale as merchandise, and for transportation. The profits to which the plaintiffs are entitled do not include any profits of converting long hay into short-cut hay. They include only the profits of pressing and binding into baies short-cut hay; hay after it is eut short. They do not include, either, any profits on the hay as hay, except such profits as resulted from the fact that, as short-cut hay, it was pressed and bound in baies, such last-named profits being the extra profits due to selling the short-cut hay pressed and bound in baies, over selling it as loose, short-cut hay, or as short- cut hay manipulated for market in some prior known way. The mas- ter appears to have reported profits on cutting the hay, and also other profits on the hay as hay than those above specified as allowable. The third exception must, therefore, be allowed. It was the duty of the plaintiffs to give evidence separating the profits above defined. In the absence of such proof only nominal profits can be allowed. It is also manifest that the master, in fixing four dollars a ton as profit in respect of the matter covered by the second exception, included profits on cutting hay, and the other improper profits above mentioned. The second exception is allowed. For the same reasons the fourth excep- tion is allowed, and also the first. The report is set aside, and the �*Reported by S. Nelson White, Esq., of the New York bar. ��� �