Page:Federal Reporter, 1st Series, Volume 3.djvu/576

 BURDETT V. ESTEY. ���569 ���the defendants made of it, which was the difference between cost and jield. Rubber Co. y. Goodyear, 9 Wall. 788. �The tuning cost nothing but the labor and skill of the tuner, and for that the master bas allowed. The sets of reeds are arranged for making musie by being tuned in any mode open to use, and the defendants are not entitled to have the profits of the partial set governed by what it -would have brought independently of this kind of tuning any more than of any other; nor any more than they are entitled to have them reckoned at what it would bave brought independently of the air to operate the reeds, or of the principles of musio by which the instruments could be played, except what this kind of tuning might have cost more than those would. This case is very different from Mowry v. Whitncy, 14 Wall. 620, relied upon by the defendants. There the patent was for a process of making wheels, which, as a product, were not cov- ered by the patent. The defendants were charged by the circuit court with the whole profits on the wheels, instead of the profits of the savings by the patented process. This was held to be wrong, and the plaintiff there was required- to distinguish the profits due to the patented process from those received on the whole wheel, before he could reeover them. What was required to be done there bas already been done here. Large profits were made by these defendants on these organs, aside from those on the partial sets, for which there has apparently been no attempt to charge them. �The master has carefuUy distinguished the profits arising directly from the partial sets from the resfc. He has ascer- tained the difference between what it cost the defendants to make and sell that, and what it brought them. This was the profit on that thing. The fact that the defendants might bave employed a horizontal partial set to nearly or quite the same profit, does not vary this aspect of the case. The par- tial set, arranged in a reed board according to the orator's patent, was a thing by itself, different from anything else, and there was no exact equivalent for it. It was that upon which they made the profit charged. If they had employed the horizontal set instead of it, they would not have tres- ����