A suit was commenced on February 18, 1886, against
the defendant company charging an infringement of letters patent No. 178,461, dated June 6, 1876. A motion was made for a preliminary injunction, which was granted; and on the hearing of that motion the defendant filed an answer, which was read as one of the affidavits in opposition to the application for the injunction. After the preliminary injunction issued, and before any proofs were taken, the parties enter into a stipulation whereby the defendant consented to the entry of a decree against it, admitting the validity of the patent, and the infringement as charged, and consenting that the preliminary injunction should be made permanent, and fixing the amount of damages at the sum of $500. The decree, in accordance with the stipulation, was signed and filed October 2, 1886. On February 11, 1888, an order was entered that the said defendant and Julius H. Burwell, its officer and agent, show cause on February 14th then following why they should not be adjudged in contempt for violation of the preliminary injunction, and of the final decree, and the writ of perpetual injunction granted October 2, 1886, and be punished accordingly, and why they should not pay damages to the petitioners, Howard and Perkinson, administratrix, etc., suffered by the violation of said decree and injunctions, together with costs and expenses of this motion, and for further relief, etc. The affidavits presented by the petitioners charge the defendant with making, vending, and using certain harrows alleged to be substantially the invention covered by the letters patent No. 178,461. The name of the harrow sold by the defendant is the “Harris Harrow”. On the return of order to show cause, and at the hearing, the defendant admitted the sale and use of the “Harris Harrow,” so called, but alleged that, recognizing the consent decree entered in 1886, they did not obtain the right to use and sell this harrow until experts had examined the same and pronounced it different in operation, and no infringement'of the “Boss” harrow, No. 178,461; and, to sustain this allegation, affidavits are presented. Numerous counter-affidavits of experts are also introduced by the petitioners, and the contest is quite vigorous upon the-question of the identity in principle and operation of the two harrows.
While the stipulation by consent is a part of the record, and in force, full effect must be given to the admissions therein contained and embraced in the decree, which, on its face, puroorts to be a decree by consent of the parties. The validity of the patent, as between them, cannot be again questioned, and the exclusive rights of the complainants to the invention, as therein conceded, must be maintained. Yet as the patent has never been discussed at a hearing upon testimony taken by the par*869ties, and the preliminary injunction ivas only granted upon the bill of complaint and affidavits, the alleged infringement by the sale of the “Harris” harrow depends upon a construction of the claim of the “Boss Harrow,” so called, which has never been given by the court. The circumstances would not justify a construction of the patent under the decree entered by consent so as to include the “Harris Harrow,” and charge Ihe defendant as an infringer, and in contempt of the injunction granted October 2, 1886. As stated in Higby v. Rubber Co., 18 Fed. Rep. 601.
“The case upon the patent was closed months since, and * * * no regular issues are made up, * * and no appeal can be taken from any order. Under the circumstances of the ease, the plaintiff cannot justly assert that the consent of the defendants amounts to a general decree in his favor, or will aid me to construe the patent.”
Jf the complainant desires to enjoin the harrow now complained of he must do it by bill in the usuaL way.
Application to declare defendants in contempt is denied. Ordered accordingly.