Page:Federal Reporter, 1st Series, Volume 8.djvu/774

 760 FEDERAL REPORTER. �defendants' profits were made by the use of his device. But the defendants, upon the rereference, have given proof showing that their machine derived no increased value in the market from the usa of the complainant's "long-swing" feature. Upon the second hearing before the master the defendants produced a machine constructed with all the leading devioes characteristio of the defendants' machine, except that they hinged the plow-beams at the evener instead of hinging them forward of the evener, or between the evener and the neck-yoke. It was a'fmll-sized operative machine; was constructed and plaeed'at woik in a field in the presence of a number of intelli- gent witnesses. In the same'aield was also ane of the defendaiits' machines, constructed -with the "long^swing" element precisely as it was claimed to infringe the complainant's patent, where it was hinged between the evener and the neck-yoke, giving a longer plow- beam and giving a longer vibrating motion to the plows from the increased length of the beam. This machine, constructed after model No. 17, was tried in the presence of these witnesses, and among them was Mr. Jacob Beihl, who appears to have been a man- ufacturer and machinist. �After the exhibition he testified that, in his opinion, attaching the shovel frame to the tongue in front of the evener had no value in defendants' machine ; that the cultivator made like Exhibit No. 17 worked better and easier, and waa better than the defendants' ma- chine like No. 6 ; that the machines like No. 17 would have been more saleable, and the profits thereon would have been increased rather than diminished. This witness attributes all the profits to other fea- tures than the "long swing." The testimony of Mr. Anthony Haines, a manufacturer and gentleman of great intelligence, and that of Alfred Grill, is to the sanie effect. This affirmative proof that defend- ants made no profits by the use of complainant's device, supple- mented to the lack of proof by complainant as to what profits were made by the use of complainant's "long swing, " certainly makes no record from which it can be said any profits or damages are shown. It cannot be assumed, in the absertce' of proof, that half or any other share of the profits made by defendants were due to the use of com- plainant's device. �The other exceptions which were taken in the case had reference to the failure on the part of the master to make certain allowances to the defendants^ but asfl do not cpnsider that they are material, in the view I take of the questions which are presented before me, I shall not review or discuss them. ��� �