TOWNSEND, District Judge.
Upon,all the evidence, I find the following facts:
The defendant, since the execution of said agreement, has manufactured and sold a certain style of faucets, under the name “Andrews Faucet,” for which it has regularly accounted to the plaintiff, and on *669which it has paid royalties as agreed. It has also manufactured and sold, during the same period, two other similar styles of faucets, known, respectively, as the “Safety Faucet” and “Compression Faucet,” for which it has neither accounted nor paid royalties. “The plaintiff has never been notified by the defendant of any infringement of his rights in and to his said patent No. 193,840,” referred to in said contract; he has never terminated said contract; and he has never demanded any royalty, either on said “safety” or “compression” faucets. The plaintiff claims that said faucets contain the improvements covered by said patent. The defendant denies said claim. The object of the Andrews invention, as stated in his specification, “is to provide a faucet which is inexpensive in its construction, easily repaired, and efficient in operation.” It is illustrated and described as having an L-shaped body, A', internally threaded to receive a screw, B, and containing an enlarged passage, a, which forms a valve seat, aJ. Tn the body, A, is a lateral oblong aperture, a2, for the escape of liquid from the faucet. The screw, B, is provided with a handle or thumbpiece, and its inner end has a square projection, b. fitted with packing. The body of the faucet is tapered so as to be easily forced into the vessel in which it is used. The advantages of this construction are “that it may be more cheaply manufactured, is more easily repaired, and is perfectly secured against leakage.” The original claim was as follows:
“A faucet consisting of a body, A, having- the passage, a, valve seat, aq lateral aperture, a2, the screw, B, having file square projection, b, the packing disk, (J, and screw, T), substantially as herein shown and described.”
This was rejected on references to patents No. 183,445, granted to W. & R. Bentley October 17, 1876, and No. 189,760, granted to P. Lyons April 17,1877. Each of these; patents shows a lateral orifice. Thereupon said claim was amended so as to read as follows:
“The combination of internally threaded, 1,-shaped body, A, having valve-seat, a, and oblong aperture, a2, the screw, B, having the projection, b, and the elastic packing secured to screw, B, as and for the purpose specified.”
And upon this claim said patent was granted.
The general features of this construction were old. The Fenn faucet, for example, which is manufactured by defendant, and which has been on the market for more than 20 years, has the ordinary tapered body, and the internally threaded body, and screw provided with a handle, the valve seat and packing, and a nozzle or spout. It does not have the oblong lateral orifice, or the L-shaped body, of the Andrews patent. Other prior constructions show the elements of the Andrews combination in connection with other elements which altogether make a more elaborate and more costly faucet. Andrews dispensed with said other elements, substituted said lateral aperture for the spout, and thereby made the simpler and cheaper device to which he finally limited himself by the above claim. This combination consists of “the nozzleless, L-shaped body, with the open and *670projecting screw plug, and the lateral orifice at the valve seat, whose greatest length is parallel to the valve seat.” “In other words, the Andrews patent purports to make a complete faucet, with just that simple, L-shaped body, and the screw plug, that projects so you can operate it with the hand; and by making the faucet so simple, and by leaving off these parts, is the only way that the Andrews patent could be distinguished from the prior art.” The “safety” and “compression” faucets are not L-shaped, but have the ordinary body and nozzle of the prior art. They do not have the screw plug integral with a thumbpiece, and accessible to the hand, but require, for their operation, separate cranks or keys. They have a cover screwed on, which is open to receive a key. Instead of the oblong aperture of the Andrews patent, they have a nozzle or spout. In other details they depart from the Andrews combination, and follow the prior art. But the faucets manufactured, stamped, and accounted for as Andrews faucets are also unlike the Andrews patent. In fact, their construction is not substantially different from that of the “safety,” and “compression” faucets, except that the former are more cheaply made, and do not have a cover screwed onto the body.
By the contract to pay for faucets containing the patented improvement, the defendant agreed to pay for the faucets made by it, which, by reason of the omission of such unnecessary details of construction as the Adams patent dispensed with, were of a simpler and less expensive construction, such as the Andrews patent sought to secure. The “sáíety” and “compression” faucets do not differ from the prior art in these respects. They do not contain the patented improvements of Andrews, which consisted in a combination comprising the nozzleless, L-shaped body, with open, projecting screw plug, and oblong lateral orifice, specifically claimed by Andrews. As already stated, they differed from the Andrews faucet made by defendant in having a top piece screwed onto the body of the faucet, which covered the screw piece so that it could only be reached by a lever, and was not accessible to the hand. As to the so-called “Andrews Faucets,” I hold, as matter of law, that defendant, having stamped said faucets with the Andrews patent, and having accounted and paid for the same, is estopped to deny that they do not contain the patented improvement of Andrews. I further hold, as a matter of law, that the defendant is not estopped to deny that the “safety” and “compression” faucets do not contain the patented improvement, because similar faucets had been manufactured and sold by it for more than 20' years; because said faucets do not have the L-shaped body, the oblong lateral aperture, or the handle or thumbpiece of the Andrews patent; because the defendant neither sold, stamped, nor represented them as containing the patented improvement; and because it does not appear either that, by any act or omission on the part of the defendant, plaintiff was led to believe that said faucets were within the patent, or that the defendant represented them as such, or that the position of the plaintiff was in any way altered to his prejudice by any representations, acts, or omissions on the part of defendant; and, furthermore, because there is no evidence to contradict the evidence of the expert for defendant that said “safety” and “compression” *671faucets do not contain the patented improvement of Andrews. While plaintiff has accepted royalties on the Andrews faucets for several years, he never made any claim on account of the sale of said “safety” and “compression” faucets, until just before the bringing of this suit; although it does not appear, otherwise than by the stipulation that "he has never been notified by defendant of any infringement of the plaintiff’s rights,” that he did not know, or might not have known, of the manufacture of said “safety” and “compression” faucets, which have been extensively advertised and sold to the trade. It does not appear that the defendant, at the time the contract was made, agreed to treat such “safety” and “compression” faucets as within the contract, or that the parties at that time adopted any standard or accepted any sample whereby the question was determined as to what faucets should be considered as containing the patented improvement. As to the evidence offered to show the prior state of the art, I rule that the same is admissible, not to invalidate the Andrews patent, but to explain the latent ambiguity in the language, “containing the patented improvement,” and as bearing upon the situation of the parties, and their object in making said contract. Let judgment be entered for defendant in accordance with this opinion.