DAVID BRADLEY MANUF'G CO. v. EAGLE MANUF'G CO.; MOLINE PLOW CO. v. SAME, 58 F. 721

JENKINS, Circuit Judge. The appellants present petitions for rehearing, principally upon the ground that we erred in holding that the former decree could he here considered. This proposition is predicated upon the ground that the former decree was not pleaded; and it is insisted that we have overlooked the rule that no decree can he made in favor of the complainant on grounds not stated in his bill. The case of Crocket v. Lee, 7 Wheat. 522, is supposed by counsel to he decisive against our decision.

There the case below turned principally on the question whether a certain location was too vague to be supported; and it was insisted upon appeal that the decree was erroneous, beca ase the court should have disregarded the testimony in that respect, for the reason that neither its vagueness nor its certainty had been put in issue by the pleadings; and the court so held.

But that court, recognizing the injustice of permitting parties to try and submit their cause in the court below upon an issue not raised by the pleadings, and to enter that objection for the first time upon appeal, while feeling bound to assert the rule, was very careful to find a ground upon which to reverse the cause, with direction to permit the parties to amend their pleadings. This case was decided in 1822.

It is witbin tbe knowledge of tbe profession tbat at that time, both in law and in equity, great stress was laid upon strict adherence to tbe issues presented by tbe pleading's, and to a technical conformity of proof to allegation. It was carried to tbe extreme of injustice. Since tbat time there has been evolution in tbe science of the law in respect of tbat subject. Parties are no longer turned out of court because their i’s are not dotted, or their t’s crossed; and courts are diligent rather to search for tbe substantial justice of a case, than to insist upon strict conformity to pleading.

And, while tbe rule remains, courts at tbe present day are not inclined to permit parties, for tbe first time upon appeal, to assert the objection tbat the testimony, which has been taken without objection in tbe court below, supports an issue not comprehended witbin tbe allegations-of tbe pleading. Tbe supreme court of tbe United States has asserted this principle in tbe late case of Wasatch Min. Co. v. Crescent Min. Co., 148 U. S. 293, 298, 300, 13 Sup.

Ct. 600, where a similar objection is disposed of upon tbe ground tbat tbe defendant did not object to tbe plaintiff’s evidence as exhibiting a different case from tbat asserted in tbe bill, and tbat tbe supreme court of tbe territory from which tbe cause came justly held tbat tbe objection should bare been raised in tbe trial court, where ample power existed to correct and amend pleadings; and, not having done so, but having gone to trial on tbe merits, tbe defendant was precluded from.assigning error for matter so waived.

Tbe doctrine of waiver is thus invoked to mitigate tbe hardship of tbe rule if it should be applied to cases where parties without objection have made tbe issue by their evidence. Tbe issue here was novelty of invention. Tbe prior interlocutory decree was pleaded either as a bar or as matter more or less conclusive upon tbe question of novelty, or perhaps in invocation of tbe doctrine of comity. It is immaterial which. If as a bar, tbe pleading was defective upon tbe technical ground tbat tbe interlocutory decree bad not ripened into a final decree, because tbe damages bad not then been assessed.

Tbe validity of the patent bad been determined, subject only to tbe power of tbe court to change its judgment before final decree. No objection was made to tbe sufficiency of tbe pleading when tbe final decree was stipulated in evidence. We are well satisfied tbat thereby tbe appellant waived tbe defective nature of the pleading, if tbe pleading is to be treated as a plea of res adjudicata. Irrespective, however, of any question of pleading, we are of opinion tbat tbe former decree was properly before the court, and should be given full effect. Tbe issue involved in this case was novelty of tbe invention claimed.

Tbe former decree was, as has been said, stipulated in evidence by tbe agreement of tbe parties, subject only to its materiality. A former decree may be good as a plea in bar, or may be available as evidence. It was said in tbe Duchess of Kingston’s Case, 11 State Tr. 261, 2 Smith, Lead. Cas. (6th Amer. Ed.) 663, tbat such decree is “as a pléa, a bar, or as evidence, conclusive.” It may, perhaps, be somewhat questionable whether it is correct to say tbat a party is estopped by a judgment, any more than ilmt be is estopped by a contract.

The former decree is not the act of tlie party, but tbe solemn adjudication of a judicial tribunal. So far as the party is concerned, he may be permitted to waive the former recovery in Ills own behalf; but the peace and good order of society are likewise concerned, that there shall be an end to litigation, and that the courts should not be twice vexed with the same controversy, when that controversy has once been solemnly adjudicated. Marsh v. Pier, 4 Rawle, 288; Kilheffer v. Herr, 17 Serg. & R. 319.

However that may be, it is certainly true that, without respect to pleading, wherever a former recovery is properly in evidence — us here it ivas by agreement of the parties — full effect should be given to it, so far as it bears upon the issue presented. The issue here being novelty of invention, and that fact having been determined by the prior adjudication, the former decree becomes conclusive evidence of the validity of the patent as between the parties affected by such prior adjudication. The petition for rehearing will be overruled.