On Rehearing.
PER CURIAM.So far as this application for a rehearing proceeds upon considerations which were urged, but did not convince us, at the original hearing, as none of them were overlooked, it is not justified by the rules of practice. So far as it proceeds upon errors of fact pointed out in the opinion of the court, the application is justified by the rules of practice, and would present meritorious reasons for a rehearing if these errors were in respect to matters which had any serious influence upon the decision.
The court certainly did not overlook the contention for the appellants that the patented attachment created a new market for automatic air-brake equipments which practically precluded the sale of such equipments in which the attachment was not a part. As the complainants had given no evidence whatever of the profits made by the defendant by the manufacture and sale of the attachments or of their own loss of profits through sales of attachments diverted from them by the defendant, necessarily they were not entitled to a recovery within the rule announced in Garretson v. Clark, 111 U. S. 120, 4 Sup. Ct. 291, 28 L. Ed. 371, and in other adjudications to the same effect, unless their evidence showed that the defendant’s sales of equipments were wholly attributable to the presence of the attachment as one of the parts thereof. Our decision went upon the ground that, notwithstanding there was satisfactory evidence in the proofs that the quick-action attachment was so desirable that there would have been only a limited sale for the other parts without it, there was no satisfactory evidence that the defendant could not have made any sales without it, and none to show how many of the defendant’s sales were due solely to the presence of the attachment. The testimony of Mr. Vilas that there was no market for the other parts without the quick-action attachment, as well as other testimony for the complainants to the same effect, was effectually refuted by the evidence of the sales made during the period of infringement by the complainants themselves. It appeared that during this period the sales made by the complainants of equipments without the patent*553ed attachment were 18,450, and their sales of equipments with the patented attachment were 239,500. From all that appears, the complainants could have sold a larger number of equipments without the attachment if they had tried to do so; and, if it could be assumed that they could not have sold a larger number, it would not follow that the defendant could not have sold a larger proportionate number. Unless the court was at liberty to find that because complainants’ sales during the period of infringement were in the proportion of about 13 equipments having the attachment to 1 without it the defendant’s sales must have borne the same ratio, and that consequently 13 out of every 14 sales made by the defendant must have been attributable to the presence of the attachment, there was no adequate basis for the recovery. This would have been mere conjecture.
The court fell into an error of fact in stating that Boyden had supplied equivalent apparatus for the patented attachment before the latter was invented by Mr. Westinghouse. The fact was as stated in another part of the opinion. Boyden’s quick-action valve was in use during the period of infringement, but, as it was not open to the use of the defendant because it had been patented by Boyden, the fact was not mentioned as constituting a bar to recovery. The circumstance that it was in use was adverted to in the opinion merely for the purpose of indicating that the invention of the patent in suit was not one which created the market which the defendant supplied. Mr. Westinghouse was undoubtedly the inventor of the quick-action attachment, and it is not open to doubt that this was an exceedingly valuable invention. While the complainants were entitled to all the profits which they lost and all the profits which the defendant realized by the latter’s sales upon this attachment, there was no basis' for a recovery, because the proofs did not show what these profits were, and the assumed basis that all the profits made by the defendant and lost by the complainants through sales by the defendant of the entire apparatus of which the patented apparatus was a part were recoverable, because without the latter there would have been no market for the other parts, was not justified by the proofs.
The application is denied.