
    Case No. 12,885.
    SIMPSON v. MAD RIVER R. CO.
    [6 McLean. 603.) 
    
    Circuit Court, N. D. Ohio.
    July Term, 1855.
    Patents — Utility—Damages.
    1. A person who approves of an improvement of a patented right, but refuses to pay the price charged for it, is inexcusable for using it.
    2. The fact of use is evidence of its utility, and should subject the defendant to damages.
    [This was an action by Thomas D. Simpson against the Mad River Railroad Company for damages for the violation of letters patent No. 4,213, granted to plaintiff September 30, 1845.)
    Curtis & Scribner, for plaintiffs.
   OPINION OF

THE COURT.

This is an action for the violation of a patent right. On the 30th of September, 1843, the plaintiff obtained a patent for “an improvement in the mode of removing truck wheels, of locomotive and other engines.” The agent of plain- • tiff was called on by the agent of defendant, ! who on examination was pleased with the j improvement; and when the price of two j hundred and fifty dollars was stated to him > he refused to pay it. He had had the im- j provoment in operation two weeks, as wit- j ness understood, and he said to the witness, \ he might bring suit. ;

There is no defence set up by the defend- ! ants, and the court instructed the jury that , they could assess the damages, to which the ¡ plaintiff is entitled, for the violation of the j patent. From the statement of the witness, ; it appears to be a very useful improvement ¡ in removing truck wheels of engines or cars, ; when they become defective and need re- I pair. It saves much labor and expense, and , also time. It is natural to conclude that from j the time the improvement was first used by , the defendants, nothing to the contrary ap- j pearing, it was continued in use, up to the i time this suit was commenced. The case ] proved is evidence of the utility of the im- ¡ provement. j

The jury found a verdict of five hundred dollars, in damages. Judgment.  