United States v. Berdan Firearms Manuf Co Berdan Firearms Manuf Co v. United States

• Decision Date: 04 March 1895
• Docket Number: 135,Nos. 128,s. 128
• Parties: UNITED STATES v. BERDAN FIREARMS MANUF'G CO. BERDAN FIREARMS MANUF'G CO. v. UNITED STATES
• Court: U.S. Supreme Court

156 U.S. 552

15 S.Ct. 420

39 L.Ed. 530

UNITED STATES

v BERDAN FIREARMS MANUF'G CO.

BERDAN FIREARMS MANUF'G CO.

v. UNITED STATES.

Nos. 128, 135.

March 4, 1895.

These are cross-appeals from a judgment of the court of claims entered December 8, 1890, in favor of the petitioner against the United States, for the sum of $95,004.36. The case as it was presented in the court of claims contained two distinct causes of action, each founded upon a patent issued to Hiram Berdan, and by him assigned to petitioner. The first patent was dated February 27, 1866, being No. 52,925, and entitled 'Improvement in Breech-Loading Firearms.' The second was dated March 30, 1869, being No. 88,436, and entitled in the same way. The court found against the petitioner in respect to the first cause of action, and in its favor on the second. The findings of facts made by that court are quite voluminous, and it would needlessly incumber this statement to quote them all at length.

In reference to the first of these causes of action, it will be sufficient to note these facts, taken from the findings, and which present all that is necessary for a determination of the questions involved: In January, 1866, the secretary of war convened a board of officers of the army, of which Gen. Hancock was named as president. This board, known as the 'Hancock Board,' was 'ordered to examine thoroughly the following questions, and make recommendations thereon:

'(1) What form and caliber of breech-loading arm should be adopted as a model for future construction of muskets for infantry?

'(2) What form and caliber should be adopted as a model for future construction of carbines for cavalry?

'(3) What form of breech-loading arm should be adopted as a model for changes of muskets, already constructed, to breech-loading muskets?

'Each person who submits an arm to the above board will be required to state in writing the lowest price at which it will be furnished in the event of its being adopted by the government.'

It met at Washington on March 10, 1866. In the same month it issued a circular to the public, with the following blank form of proposal, to be signed by those presenting arms for trials:

'_____, of _____, being the proprietor of the patent right to manufacture a breech-loading arm, known as _____, do hereby bind _____ heirs, executors, and assigns to grant to the United States government, if called on within three years from this date to make such grant, the right to manufacture the aforesaid breech-loading arm on the following terms, viz:

'For payment to _____ of _____ dollar per arm for the privilege of manufacturing fifty thousand; of _____ dollar per arm for the privilege of manufacturing one hundred thousand; of _____ dollar per arm for the privilege of manufacturing two hundred thousand; and of _____ dollar per arm for the privilege of manufacturing any additional number of arms: provided, that when the government shall have paid the total amount, _____ dollars, counting each and every payment, then it shall have the full and entire privilege of manufacturing _____ patented arms, for its own use, without further payment to _____ on account of _____ patent right. Each payment, as above specified, to be made for not less than five thousand arms. Or, by the payment of _____ dollars within three years from this date, the privilege of manufacturing as many arms as may be desired shall be granted to the United States.'

In response to the circular, the petitioner, among others, on March 27, 1866, forwarded a communication, a part of which is as follows:

'The Berdan Firearms Co., of New York, New York, being the proprietor of the patent right to manufacture a breech-loading arm known as the 'Berdan Breech Loader,' do hereby bind ourselves, heirs, executors, and assigns to grant to the United States government, if called on within three years from this date to make such grant, the right to manufacture the aforesaid breech-loading arms on the following terms, viz.:

'For payment to us of two dollars per arm for the privilege of manufacturing fifty thousand; of one and three-quarters dollars per arm for the privilege of manufacturing one hundred thousand; of one and one-half dollars per arm for privilege of manufacturing two hundred thousand; and of one and one-quarter dollars per arm for the privilege of manufacturing any additional number of arms.'

Later, and on May 21, 1866, it presented a gun, called 'No. 4,' which, while similar in many respects to the one described in the specifications and drawings of the patent No. 52,925, differed in others. One of such differences is thus described in the latter part of the fifth finding:

'A friction plunger (which did not exist in the patented gun) was placed in the gun (No. 4) shown the Hancock board; this plunger appeared in the middle of the bottom of the breech receiver, close to the barrel's mouth, and was so placed that when the gun was loaded the spring was held up against the cartridge head, and in contact with it, by a flat spring placed underneath the barrel. The friction plunger was introduced for the reason stated in finding 13.'

Finding No. 8 is as follows:

'June 4, 1866, the said board of officers concluded its labors, and made a final report to the secretary of war, which contained this recommendation and statement, namely: 'Fourth. This board recommends the plan of alteration submitted by H. Berdan. This gives the stable breech pin, secures the piece against premature discharge, and involves only a slight change of our present pattern of arms."

In finding No. 9 is this statement:

'No gun has been bought by the government from defendants [petitioner?] and no gun has been manufactured by the government which is a copy of the gun recommended by the Hancock board.'

Findings 11, 12, and 13 disclose these facts:

'(11) Several models of Springfield arms have been placed in evidence, and as to them we find: The model of 1865 was the Allin gun. The model of 1866 (finding 12) was a tight-jointed mechanism, and except for the ejector device, elsewhere described in these findings, the Berdan model has no bearing upon this case. The loose-jointed mechanism appeared in 1868, with the new ejector device elsewhere in these findings described. For the purposes of this action, the model of 1868 and those subsequent are alike, and for these purposes the description given in these findings of the Springfield gun applies to all models subsequent to that of 1866.

'(12) The Berdan gun (patent 52,925) was not loose-jointed; when the breech block was down, there was no play, for then the block abutted against the barrel at one end and the brace against the breech screw at the other; Berdan, by joining his block (making thus a block and brace) procured a square recoil shoulder against the end of the breech pin; but he did not procure any play in the parts; there were elongated holes in the plate fastening of his breech block, as shown in the patent office model, a device replaced in the gun shown the Hancock board (No. 4) by a band which has a minute slip upon the barrel under strong pressure; but neither the holes nor the band are claimed to give, nor do they give, looseness of construction; they merely take up slight wear of the parts. It is admitted that no single element in patent 52,925 is new. The combinations shown in claims 1, 2, 4, and 5 were novel and useful.

'(13) The Berdan extractor (patent 52,925) was intended for rim-fire cartridges; with those cartridges it was successful. It was not successful when used with center-fire cartridges, for this reason: The flange of the rim-fire cartridges expanded somewhat at the time of explosion, and the shell thus took a firm seat in the barrel. This expansion did not occur in the center-fire cartridges, and therefore the shell was pressed back by the ejector spring in proportion to the speed with which the breech block was raised; the movement thus communicated to the cart ridge was therefore not sufficiently fast to throw the cartridge out of the receiver. To counteract this difficulty, Berdan introduced the friction plunger into the receiver just behind the cartridge head, thus counteracting the backward pressure of the spring until the breech block was open sufficently to allow the shell to clear the face of the breech block when ejected, so that the motion backward should not be impeded by the intervening breech block. This friction plunger, singly or in combination, was not patented by Berdan.

'It appears that the ejector in patent 52,925 would only operate when a rim-fire cartridge was used. The government uses center-fire cartridges.'

Patent No. 88,436 was for what is called an 'extractor ejector.' In reference to the cause of action under this patent, findings 16, 17, and 19 are as follows:

'(16) Extraction and ejection of cartridges was thus performed in all Springfield guns, beginning with the model of 1868, and continuing since:

'Extraction: By an extractor plate swinging on the hinge pin, and struck above its center of motion by the forward end of the breech block, near the completion of its movement in opening.

'Ejection: By accelerating the movement of the extractor by means of a spiral ejector spring which surrounds the stem of the ejector spindle, and bears against the bottom of its hole in the receiver at one end, and against the head of the spindle at the other end. When the extractor is revolved by the opening of the block, the ejector spring is compressed by the ejector spindle, the point of which rests in a cavity in the back of the extractor above its axis of motion. The continued revolution of the extractor finally brings the prolongation of the ejector spindle below the axis of motion; as soon as the center is passed, the sudden release of the ejector spring causes the extractor to rapidly rotate about its axis, and to carry the empty cartridge shell against the beveled surface of the ejector stud, by which it is...