APPEALS FROM THE COURT OF CLAIMS.
MR. JUSTICE McKENNA delivered the opinion of the court.
This suit is for royalties alleged to be due for the use by the Government of a certain patented invention known as a "gas check" or "obturator," a device applied to breech-loading cannon to prevent the escape of gas.
The Court of Claims rendered judgment against the United States for the sum of $136,000. Both parties appeal, the United States contending against any judgment, the claimant contending for the recovery of a larger sum. No further distinction is necessary to be observed between the appeals. The discussion of the case will dispose of both.
The first contention of the Government is that the facts
set out in the findings did not constitute an implied contract in fact as distinguished from a tort, and that, therefore, the Court of Claims had no jurisdiction of the case.
Such a contract is necessary to sustain the exercise of jurisdiction. Russell v. United States, 182 U.S. 516, and cases cited. The Court of Claims decided that such a contract existed and that the jurisdiction of the court was established, citing United States v. Berdan Fire Arms Mfg. Company, 156 U.S. 552. The court said: "The findings disclose an invitation to present the details of the patent to the defendant [the Government], its examination by a board of officers appointed to investigate such inventions, and its final use without the slightest claim of ownership. Nothing appears to show an intention to dispute claimant's title to the patent, hence an implied contract arose to pay for such use."
In discussing the correctness of these conclusions we necessarily assume the validity of the patent, its utility and use by the Government, the question being only for the present whether such use was a trespass upon the rights of the claimant, or in concession of such rights and of an obligation to pay for them.
The findings lack, and, it may be, necessarily lack, definiteness. They trace the history and progress of the invention of gas checks from an early period to the culmination in the patent to Colonel De Bange, an officer of the French army, in 1884, granted upon an application made in 1883. It immediately attracted the notice of American army and naval officers and received favorable commendation in ordnance notes.
In 1883, under an act of Congress of that year (March 3, 1883, 22 Stat. 472, 474), a board was constituted known as the "Gun Foundry Board," composed of eminent officers of the army and navy, headed by Rear Admiral Simpson of the navy, whose duty it was, among others, as it is recited in the findings, to report on the establishment
of a Government foundry, "'or what other method, if any, should be adopted for the manufacture of heavy ordnance adapted to modern warfare, for the use of the army and navy of the United States.'"
The board visited the claimant's works at Paris on June 29, 1883. "In the official report of this board reference is made to a visit to the claimant's works at Paris, France, on August 29, 1883, and to the inspection by said board of the De Bange system of ordnance. In the said report of said board is the following:
"'Breech fermeture. -- All the French guns are breechloading, and are fitted with the interrupted screw system, as modified by Colonel De Bange to suit his gas check.
"'Gas check. -- The De Bange gas check is universally employed.'"
Prior to the visit of the Gun Foundry Board the De Bange obturator was brought directly to the attention of the United States ordnance authorities through Lieutenant Commander Chadwick, naval attache at London, to whom De Bange explained his invention and who gave to Lieutenant Commander Folger of the Bureau of Ordnance, Navy Department, a detailed description of the gas check, with a description of the method of making it, furnished by De Bange, subsequently (July 5, 1883) forwarding to the department the device, accompanied by the following letter:
"SIR: I have the honor to forward herewith a De Bange 'obturator,' which was kindly presented on request by the French minister of war.
"I am, very respectfully, your obedient servant,
Lt, Comdr., U.S. Navy, Naval Attache.
U.S. Navy, Chief of Bureau of Navigation,
Navy Department, Washington."
In 1884 the ordnance officers of the United States, after experimenting with the De Bange device, adopted it for heavy ordnance (5-inch caliber and upward) and have used no other device since.
"The United States Government [we quote from the findings] has never disputed the title of claimant's assignor, Colonel De Bange, as inventor of the said invention; but, on the contrary, the said invention has, ever since its adoption, been known in the service of the United States as the 'De Bange gas check,' and is described by that name in the official reports of the Secretaries of War and of the Navy."
The findings contain certain correspondence which is relied on by the Government to sustain its contention, and, as it is not possible to condense it, it is given in full:
Colonel De Bange to H.E., The Minister Plenipotentiary of the United States.
"MR. MINISTER: In order to respond to the desire expressed by your excellency in the letter which you have done me the honor to address to me, I add some details to may previous observations.
"One of my patents bears the number 331,618; it relates to gun carriages; it is not very important because one can do without it; but the second, No. 301,220, which is connected with the obturation of guns and breech mechanism is of the highest importance. Without my obturator the loading of a gun by the breech is difficult and the service is rendered ineffectual. The metallic ring used in Germany is far from having its value and imparts to the gun a considerable inferiority. Thus all the makers of cannon are led to employ my invention, either openly or in a disguised form, styled by them improvement. The War and Navy Departments at New York, which are well acquainted with the question, will certainly not contest
the truth of my assertions; they have under their eyes, on trial, guns which speak for themselves.
"This is not the first time that I have had to complain of my idea being borrowed without my knowledge in France or abroad. The English Government particularly had taken up my system, and without my having demanded anything had offered me twenty thousand pounds sterling to indemnify me. I refused this offer, it is true, but because as a Frency officer I ought not to aid in the arming of a power which I do not consider as friendly. In part, deprived of my assistance, England has copied me badly and possesses but a moderate artillery.
"In any case, I appeal to the sentiments of equity of the Government of the United States, convinced that it will recognize easily the justice of my claim.
The Naval Attache at London suggested in a communication to Mr. Reid, our Minister there, that Colonel De Bange's letter be forwarded to the Navy Department. The Minister, however, referred it to the Secretary of State.
De Bange sent the following letter to the Secretary of the Navy:
"VERSAILLES, NEAR PARIS, 16/8/91.
"Colonel De Bange to Monsieur Benjamin F. Tracy, Secretary of the Navy at Washington.
"MR. SECRETARY: Some months ago I addressed the United States minister at Paris, verbally and by writing, several remarks on the subject of loans which I had made of my invention to the departments of War and of the Navy; finally, as I have undertaken to write to ...