KELLER 7). STOLZENBACH. _  
,_KELLER and others v. Sronzasslen and others
(Uircuit Court, W. D. Pennsylvania. March 20, 1884.) _ _
1. Foitumt Juncusmrtr-WHEN A BAR. ly I
A decree under equity rule 38 dismissing the plaintiifs bill because of his
failure to reply to a plea or set it down for argument, is not conclusive, since
all the authorities agree that in order to constitute zhe former judgment or de-
cree a har it must appear that the point in issue was judicially determined after
a hearing and upon consideration of the merits. 4
2. Pumurs iron INY'ENTION—PARTNE1t INVENTING M.¤.cirn<n—-Usis BY Frau-
Lrcmtsm.
During the existence of a partnership between two persons one of them in-
vented a machine upon which a patent was granted to him. The nrm paid the
fees and costs of procuring the patent and the expenses of an experimental
trial of the invention and also the expenses of some litigation which ensued.
It appeared, however, that all the outlay of the firm was more than repaid by
the benefits arising from the free use of the patented machine in the partner-
ship business. Held, that upon these facts no implied license arises to the ·
member of the Erm not the inventor to make, use, and vend the patented
machine after the dissolution of the partnership.
In Equity.
Bakewell ee Kerr and D. F. Patterson, for complainants.
Geo. H. Christy, for defendants.
Aonnsou, J. Nicholas J. Keller, one of the plaintilis, and Philip
M. Pfeil`, one of the defendants, entered into partnership on April 26,
1870, in the business of dredging and dealing in sand and gravel, the
partnership lasting until April 10, 1875, when it was dissolved by
mutual consent. During the existence of the partnership Keller in-
vented a sand and gravel separator, for which letters patent were
granted to him on May 21, 1872. With his consent, and at the Erm
expense, the patented apparatus was put on·two boats owned by the
nrm,-—one called the Hippopotamus, the other the Bainbow,——and
was used thereon without charge during the continuance of the .
partnership; The nrm paid the fees and costs of procuring the pat-
ent, and the expenses of an experimental trial of the invention, and
also paid the expenses of some litigation which ensued. The evi-
dence, however, tends to show that this outlay was more than made
good by the advantage and beneiits accruing to the firm from the
free use of the invention on said boats. Upon the dissolution of the
firm each partner took at an agreed value one of the boats,-Keller,
the Hippopotarnus, Pfeil the Rainbow,-each then having the pat-
ented machine thereon; A contest immediately arose as to the right
of Pfeilto use the patented machine on the Rainbow, and Keller iiiled
a bill in this court to restrain such use, alleging that the privilege
had not passed with the boat. The decision of the court, however,
Twas against him, and his bill was dismissed. Subsequently Pfeil
built another boat called the Wharton McKnight, and placed and
used thereon the patented apparatus.- Thereupon -Keller filed in this
court anotherbill against Pfeil and his associates to restrain the in-