AJAX FORGE CO. v. MORDEN FROG & CROSSING WORKS, 164 F. 843

PER CURIAM. The decree which is brought from this appeal is affirmed on the foregoing opinion of the trial court. Error is assigned for the conclusions there stated, of noninfringement, want of equity in the bill, and dismissal accordingly; and each assignment is met and satisfactorily answered, as we believe, by the opinion so filed.

Complaint is further made, in the argument on behalf of the appellant, of error in receiving in evidence a paper purporting to be an opinion given by counsel for appellant (complainant) to such appellant, prior to filing the bill, expressing doubt of the infringement averred in the bill, which paper was brought out in cross-examination of the patentee, and so introduced on the part of the appellee, under a general objection that it was “not competent or pertinent to the issues,” and was “merely a copy,” not an original paper.

The objection urged upon this appeal is that such opinion “was a privileged _ communication” between counsel and client, and that error appears in the ultimate refusal of the trial court, on appellant’s motion, to exclude it on that ground. On the assumption, however, that the paper referred to was inadmissible upon one or the other ground, error is not assigned thereupon, as required by rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii), nor can its inception disturb the decree upon the merits of the controversy. The decree of the Circuit Court is affirmed.