Transcript of Record — Minerals Separation, Ltd. v. Butte & Superior Mining Co.

INDEX TO VOLUME V.

Original.

Testimony of Frank R. Wicks (recalled) .............04. 3923

James Macdonald Hyde .i....00c00cacseeseee 3917

De ee Pe ab Cake eer OPA KE whee ae OR ORS 4018

Ben H. Dosenbach (recalled) ...........06. 4021

Job ARO CLOCKING) oi scccccedvencewvenne 4026

BET CUCM sos 6g: 5 Kc oeewtercceavieweews 4042

GCeoree &. CRARIMG 05.0 ck Kev acewiiieeotrene 4092

MERGE, “WF. RUMOR 66 isiricdcecieesincwes 4126

William Mason Grosvenor. .........0.00008 4100

Mert Fl.. Wills. cece cviveessedvitnemes 4278

William Mason Grosvenor (resumed)...... 4320

Ira L. Greninger (recalled)... .c.ccccescees 4322

William Nichols Rossberg........ccscceses 4362

Charter Tt. ann sis’ scciesieltceeasecusess 4387

George A. Chapman (recalled) ..........56. 4424

Arthur Howard Higgins........-sccvscsess 4455

William Mason Grosvenor (recalled)....... 4538

Arthur Howard Higgins (resumed)........ 4592

TERRE: IOs onic da 6 ieee ks wed Sergei 4622

Maxwell W. Atwater (recalled)............ 4668

Bltott Wray Wilkinson ......0..sccscccccccees 4670

Parmer C,. TEC oo civiccicdicsccensdeves 4681

William Mason Grosvenor (recalled)....... 4706

James Wilding (recalled)................. 4720

Arthur Howard Higgins (recalled)......... 4729

MOORE Bi, CMU 6. ce sistas eevccncewese 4784

Samuel P. Sadtler (recalled)..... eas winleta .. 4785

Frank G. Janney (recalled)............... 4814

Sdward W. Englemann (recalled).......... 4828

James Walter Dudgeon..............e..00- 4834

Arthur Wellsley Hackwood................ 4837

Ben H. Dosenbach (recalled).............. 4843

James Walter Dudgeon (recalled)......... 4854

Arthur Wellsley Hackwood (recalled)...... 4860

UGH TE, WECM c6 fv cepecncedsrcies sitees .. 4869

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BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2203

3923 Frank R. Wicks, recalled, testified as follows:

Direct examination.

By Mr. Kremer:

Q. 1. I believe you have some tabulations and some information

Mr. Williams requested?

A. Yes, sir.

Mr. Kremer: Mr, Williams, these are matters that I think you

have requested Mr. Wicks to produce, and he now produces them.

So as to keep the numbers correctly we will offer them, a document

“Chino Copper Company, Hurley plant, flotation data for period

from November 1 to 30th, inclusive, 1916, retreatment of concen-

trates,”

The Witness: That is a copy of the original report.

Report admitted in evidence and marked Defendant's Exhibit 230.

Mr. Kremer: We now offer the following paper, headed Chino

Copper Company, Hurley plant, resin and reagents used in vanner

concentrate plant, during November, 1916.

Report admitted in evidence and marked Defendant's Exhibit 231.

Q. 2. Mr. Wicks, I believe you stated that you came to Butte in

the latter part of 1912”

3924 A. Came to Butte first the last week in October, remaining

here for about two weeks and then I came back on the first

of December to take charge of the plant.

Q. 3. Who was in charge of the Butte & Superior plant as super-

intendent at that time?

A. That is the time that I came here in 1912?

Q. 4. Yes.

A. Well, Mr. Atwater was general superintendent, having charge

of both the mine and the mill; and Mr, Collins was superintendent

of the mill befere I took charge.

Q. 5. What if any, conversation did you have with Mr. Atwater

at that time with reference to the employes of the company engaged

in and about the operations?

Mr. Garrison: I object. Conversations between employes of the

defendant company certainly can’t bind the plaintiff in this case.

Mr. Kremer: This is for the purpose of impeaching the testimony

of Mr. Atwater, who stated that Mr. Hyde was an employe. Mr.

Atwater stated in his testimony that Mr. Hyde drew a salary from

the Butte & Superior Company and that he had the right to dis-

charge him. This is for the purpose of impeachment of the testi-

mony of Mr, Atwater, to show a contrary statement by (him to)

the witness.

138—Ree.

RM DFO EA IOI BEES IES BSTC HR AR ORY ERNST EA MNT BOR

2204 BUTTE & SUPR, MNG, CO, VS. MIN. SEP., LTD., ET AL,

The Court: Well, did you ask him, Mr. Atwater?

Mr. Kremer: Yes, I asked him what if any conversation he had

had with with Mr. Atwater.

3925 Mr. Garrison: He means did you ask Mr. Atwater for the

purpose of laying a basis for the contradiction,

Mr. Kremer: I don’t think we have to lay a basis for impeach-

ment of that kind when the witness’ statement is absolutely contrary

to the statement he has made in the course of his employment.

The Court: I think so. I know of no exception. If you are

going to impeach him by showing contrary statements by him, cer-

tainly the foundation must be laid. You can show the fact to be

otherwise, that Mr. Atwater had no such authority.

Mr. Kremer: I can show that in another way. When Mr. Atwater

was off the stand and they closed their case before this information

came to us.

The Court: I know, but that is your misfortune, but it does not

do away with the law governing such testimony.

Mr. Kremer: The obstacle is not Ossa Pelion, by any means,

because T can find another way.

Q. 6. Who was in the employ of the Butte «& Superior Company

at the time you came there in the latter part of 1912, in the matter

of conducting of flotation operations?

Mr. Garrison: I object. I can’t see how it is relevant as to who

was in the employ of the Butte & Superior Company at that time,

Mr. Kremer: Positive testimony that a certain man was in the

employ of the company. We have a right to meet that. not by the

statement of anyone, but by the fact.

3926 The Court: What was this witness’ relation?

Mr. Kremer: He was mill superintendent; came there to

take charge af the mill and did operate the mill. -

The Court: I will be frank with you and say it is so long since

Mr. Atwater testified that it has passed my recollection somewhat

except in its more vital portions. Certainly if Mr. Atwater testified

that a certain person was in the employ of the company, and if that

was material, why, certainly, the defense has a right to disprove it.

Mr. Kremer: The only attempt they have made to prove their

allegation that he was an employe of the company. They have

alleged that he was an employe of the company. That is the only

attempt they have ever made to prove that statement.

The Court: Well, get a little more directly at it, with this witness,

Ask him whether he knows the relation.

Mr. Kremer:

Q. 7. Was Mr. Hyde in the employ of the Butte & Superior Com-

pany at the time you came there?

Mr. Garrison: Now, if your honor please, that must be a matter

of law.

The Court: Ask him what he knows about the relations between

Mr. Hyde and the defendant, what he knows of his own knowledge.

, a

BUTTE & SUPR, MNG, CO, VS. MIN. SEP., LTD., ET AL. 2205

-Mr, Kremer: Very glad to ask it in any way court or counsel

ofrect. In faet, it is only the ultimate conclusion we are desirous

reaching.

27 Q. 8. What do you know of the relations between Mr.

a Hyde and the company, if there was any, in October, 1912,

id the latter part of 1912, when you came to the plant’

A. All the information I have is what Mr. Atwater told me when

took the place.

Q. 9. Who was Mr, Atwater’

A. He was general superintendent of the plant.

Q. 10. What did Mr, Atwater tell you?

Mr. Garrison: Now, I object to what Mr. Atwater told him.

The Court: Objection sustained,

| Mr. Kremer: Exeeption. Now, if your honor please, 1 desire to

nake an offer to prove, I suppose | may just as well state it’

The Court: Certainly.

» Mr. Kremer: We desire to prove by the witness, Ff. R. Wicks, now

jipon the stand, that the witness M, W. Atwater, who has previously

testified in this case, stated to Mr. Wicks when Mr. Wicks came to

che plant that Mr. Hyde was not on employe of the Butte & Superior

popper Company, Limited, We desire to prove by the witness upon

yhe stand and offer to prove by the witness upon the stand that the

Witness asked Mr. Atwater who Mr. Hyde was and that Mr. Atwater

eplied that Mr. Hyde was the originator of the Hyde flotation

process which was then being used in a general way, that he told—

hat Atwater told the said witness, Wicks, that Hyde had undertaken

‘ to direct the installation of a flotation equipment, and

3928 the development of a successful plant, but that he was having

. plenty of trouble doing it. We desire further to show by the

witness, Wicks, upon the stand, that the suid witness asked the said

‘Atwater if Hyde was retained as consulting engineer or whether he

was in the employ of the company, and that the said Atwater told

che said witness, Wicks, now upon the stand, that Hyde was neither

an employe nor a consulting engineer, but that he had contracted

io do certain things, and that up to that time hadn't succeeded in

doing them. We desire to further prove by the witness upon the

stand that the said Atwater explained to the said witness, Wicks, now

upon the stand, the contract between Hyde and the company and

showed him a copy of the contract and allowed the witness to read it

over so that he would be familiar with the situation, We desire

further to show by the witness upon the stand that he came to Butte to

rearrange the milling forces and to assume the position of mill super-

intendent. We desire further to show by the witness upon the stand

that he became mill superintendent and that the said Hyde was not

an employe of the said company, but was operating as an inde-

pendent engineering contractor,

That covers the offer, and in making the offer T desire to state that

we will prove any one or all of the statements there contained,

Mr. Garrison: I do not care to be met with an offer. I prefer to

have him ask the witness questions.

ny

2206 BUTTE & SUPR. MNG. CO. V8. MIN. SEP., LTD,, ET AL.

3929 Mr. Kremer: We have a right to make an offer after the

court has ruled.

The Court: He asked a question which was objected to and the

court sustained it. Now, he simply makes an offer of what he would

prove.

Mr. Garrison: | am faced now with the necessity of objecting to

this offer, in which case, if your honor please——

The Court: This offer is only » continuation of the former ques-

tion. It is only the same matter, just what Mr. Wicks says.

Mr. Kremer: The offer is in compliance with the ruling of the

court. I cannot continue to ask questions,

The Court: State your objection.

Mr. Kremer: You may interpose your objection.

Mr. Garrison: Thank you, sir.

Mr. Kremer: You are entirely welcome.

The Court: Proceed,

Mr. Garrison: | do not care unless your honor rules that that is

the practice in this district,

The Court: It is the practice here.

Mr. Garrison: I am then put at the peril of admitting that he can

prove all of this and objecting that it is immaterial. [ do not care

to be fronted with that. I would prefer infinitely to have him ask

the questions. I don’t think this witness can testify——

Mr. Kremer: Do you withdraw your objection to the previous

question ?

3980 The Court: No. [ remember a case once before a jury and

counsel asked a question and it was objected to and sustained,

The jury was sent out and he made a very long and very striking

offer, and the court permitted him to call his witness and see if he

could testify to that. He immediately withdrew his offer. Now,

ther» is no charge in that——

Mr. Kremer: If that is a challenge, I accept it.

The Court: That is what counsel is guarding against. He don’t

want to admit that all of these things would be testified to becaure

sometimes strategy and enthusiasm will lead a counsel to offer a

lot more than he can carry out. Now, he has a right to take that

view, for his protection,

Mr. Kremer: | am willing he may object to any part of the offer.

The Court: He only asks a division, so that you only ask one

question at a time, —well, as a matter of fact, when you don’t have

a jury in court it won't matter. It will really go into the record,

Mr. Garrison: I shall have to object to some of these questions. 1

think I would like to have this gentleman’s views on certain ques-

tions.

The Court: Ask questions.

Mr. Kremer:

Q. Did you have a conversation with Mr. Atwater with refer-

_ Ma Mr. Hyde's connection with the Butte & Supertor Copper

Company, Limited, when he came to Butte to take charge of the

milling operations.

3

ies all ALLENS I ON RE DOM baW RAR aa CP aides

_—

| BUTTE & SUPR. MNG, CO, VS. MIN. SEP., LTD., ET AL. 2207

3931 A. Shortly after I came there; yes, sir.

Q. 12. State the circumstances of that conversation?

Mr. Kremer: Now, IT want to be very fair with him and I won't

ask questions that will lead him,

Mr. Garrison: | do not think that that can show the relation be-

tween Mr. Hyde and the Butte & Superior Company. We already

have in evidence a written contract which counsel says was shown

this gentleman, and says Mr. Atwater gave him a copy of that con-

tract. [| don't know whether that would be relevant or not. He may

have put a construction of his own on that contract. [| doubt very

much whether that would be relevant. We have the original show

ing exactly what the money was paid for, in his vouchers, and we

have them here and it seems to me it resolves itself into a question

of law and Mr. Atwater, | have found from reading the testimony—

testimony in this respect, reading from page 139 of the transerint:

“Q. 13. During the time that you were superintendent, from the date

that you mention in 1911 down to the time that you ceased vort

connection with the company in’ February of 11S, did) vou

at any time pay moneys to James M. Hyde on behalf of the

Butte & Superior Company, the defendant? A. Yes. Q. 1A,

Did you pay him a flat sum of money per day or did you pay him

moneys made up of items of expenses or both? A. We paid

8932 him so much a month.” Now then, the vouchers show pay-

ments monthly, payments with all the descriptive language

that the vouchers of these companies have upon them to-show for

What the payment was made and the contractual relations, abort

which this gentleman [do not understand has any original informea-

tion. If he has, that is another matter. If he is here to testify to

any phase of the making of the contract between Hyde and the

Butte & Superior, | shall withdraw my objection instantly; but as I

understand it he came there long after this contract had been made ;

and there is no offer to prove that he had anything to do with that,

Then his construction of the contract must be immaterial, What

characterization he would put upon these payments certainly would

be immaterial,

The Court: Are you shifting your ground from the objeetion

formerly made which was that this can only serve to impeach Hyde

and no foundation has been laid?

i Mr, Garrison: You mean Atwater?

The Court: Yes. Are you abandoning that”

| Mr. Garrison: No, sir, | am noti IT am reinforcing that ground

heeause he is now asking what talks he had with Atwater about

Ilyvde. I cannot see that that is material.

The Court: You desire counsel to put it in the form of a question?

Mr. Garrison: I do,

The Court: So state. If you have any objection to this

3933 question state it so the court can tell and we can go on to the

next one.

Mr. Garrison: My objection is that conversations between Mr.

Wicks, this witness, and Mr. Atwater inquired about by counsel in

—

2208 BUTTE 4 UPR, MNG. CO, Ve. MIN. ®EP., LTD., RT AL.

this case,, are irrelevant and immaterial; and, if intended to im-

peach Mir, Atwater, no proper foundation i« laid for them.

The Covirt: The objection will be «ustained.,

Mr. Kiremer: | now renew my offer, | am perfectly willing to

rest upom my offer, T made no request that I * permitted to ask

any further questions, I abide by the ruling of the court and I

now renew my offer to prove by this witness as previously stated,

The Conurt: Let's eee your offer,

Mr. Karemer: | haven't it reduced to writing, but I will show you

from what | read. This ix the substance of it,

-

The Ciourt: This offer ix in reference to what Mr. Atwater may

have stated to thie witness,

Mr. Koremer: No, | want to show as I stated before, we desire to

show the: relationship existing. First of all, | stated it was for the |

purpose cf impeaching the testimony of Mr. Atwater, My firet ques

tion was——I desire to show by this witness firet that Mr. Atwater's

statemenit is to be discredited because of a statement of a different

clharacter made to the witness, That is one reason, Second,

3934 | desire to show by the witness the connection of Mr. Hyde

with the company as outlined by the general superintendent

of the company, Mr. M. W. Atwater, who has previously testified in

this case, and to show that notwithstanding the fact that Mr. Atwater :

as previonily upon the stand stated and at a time when we did not

have thie information available or know of it, has stated that he :

paid Mr. Hyde a salary and that he had the right to discharge him. ’

And for that reason we consider this testimony competent and most

material,

Mr. Garrison: | would like to have counsel point out that portion ;

of Mr. Atwater’s testimony that he proposes to show this statement

of conflict,

Mr. Kremer: I don't know the page of it.

Mr. Giarrison: Then point out one place.

Mr. Kremer: All right, I will, 1 will show you the word “salary.”

Mr. Giarrison: All right, do so,

Q. 15. First of all, | will supplement this; page 138. “Did vou

pay hinw any money’ A. We paid him so much a month.” 1 will

show vow the word salary.

Mr. Garrison: | remember the word salary, and I remember that

he took iit back later, le took back a lot of things,

Mr. Kremer: We have a right to impeach anything that he said

on direet, notwithstanding his equivocations on cros-examination.

The Court: Under no rule by which Mr. Atwater's statement to

this witness could be admitted here to serve the defendant |

3935 exeept under the rule of impeaching teetimony, If there is

any such rule I am either ignorant or forgetful of it at this

time. No foundation having been laid by the method always under-

stood-——‘Did you say thus and so to #0 and so in the presence of such

parties at such atime and place?” It is inadmissible,

Mr. Kremer: Your honor realizes the situation.

PUTTE 4 SUPR. MNG, CO, VS. MIN, SEP., LTD, BT AL, 2200

The Court: Yes, but I have had that question up before, and it

has gone to the Cireuit Court of Appeals of this circuit in the case

of Egan ve. Great Northern, and it was ruled out there and the court

sustained me.

Mr. Kremer: That i« the statement of a witnes (1 think | can

we a difference here), for the purpose of impeaching his credibility.

This is testimony with reference to a statement of fact. Here is a

man who was general superintendent of the company, charged with

knowledge, and of knowing who were his employes. His statement

ix a statement of fact; nom: if a condition is altered, whereby a for-

mer general superintendent secks to take the stand to testify against

his former employers with reference to something that was presum-

ably within his knowledge and based on what occurred under his

superintendency, then it becomes fact testimony as to what he said

with reference to the condition of affairs when he was superintendent,

Your honor must bear this in mind—I appreciate that it ix a

3046 novelty, but Mr. Atwater’s sole information given here on

the stand was of a character relating to his euperintendency ;

and certainly, if that i« testimony—A statement made by him at

that time in connection with the «ume matter is a statement of facts,

rather than a mere question of direction to his credibility, The

situation is a trifle unusual, but I sce no way of raising this question

under the objection of the parties and the objection being sustained

by the court, than by an offer of proof, which IT have mace in accord-

ance with the practice, T have not attempted to impeach anything

in that offer, save and except that which | propose to prove and which

I have here offered, the data from whieh 1 made the offer of proof,

Mr. Garrison: Do | understand that under the practice | have

got to accept or reject that offer’

Mr. Kremer: No, | think not, Judge Garrison; if you will wait a

moment—

Mr. Garrison: | beg your pardon ; T will sit down.

Mr. Kremer: I wish you would, occasionally; the statement

whether he is to accept or reject ix as to the competency of that testi-

mony. If that testimony is competent, and if he has relied upon his

knowledge of the rules of evidence in directing the objection to the

court, and the court is in accord with his view, and he desires that

objection to remain, then certainly he is charged with the

3937 truth of that testimony, or at least he is charged with the

knowledge that the witness would testify to it.

The Court: The error, if error is committed—I don't understand

that the Cireuit Court of Appeals will take it as the same as though

that testimony were in the record. If it is sufficiently material they

will send the case back to give an opportunity to have it introduced,

But I remember another case where the court sustained an objec-

tion—perhaps you have heard of it—The witness was asked to relate

a certain occurrence in a conversation, and the witness was asked

“What did Mary say?” and it was objected to and the objection sus-

tained, and it went to the Court of Appeals, and they held that it was

error and sent the case back, and when it came back they asked the

witness again, “What did Mary say’” and the witness answered

2210 BUTTE 4 SUPR. MNG. CO. VS. MIN, SEP., LTD, ET AL.

“Mary did not say anything.” So that involved the Cireuit Court

of Appeals foc that trifling matter, (Laughter) Now, it is some-

thing the «ame here, If I exelude this and it goes to the Circuit

Court of Appeals, the Cireuit Court of Appeals will never say that

the defendant has admitted that that is true; they will send it back to

find out whether Mr. Atwater did say anything to the witness or not,

Mr. Kremer: The situation is different; we have already told you

what “Mary” is going to say.

The Court: Yes, but the witness has not testified to it, It does

not invelve the construction the plaintiff places on it, The court

could inquire, a a matter of good faith, like it did inquire

S938 as it has told you about, and | think the offer is properly

made, and vou can state vour objection to it as it is,

Mr. Garrison: | am net going to object to the offer, vour honor.

The Court: Proceed, then,

q. 15. What did Mr. Atwater say with reference to Mr. Hyde’

Mr. Garrison: Now, | object to the question, if your honor please.

The Court: T see the method counsel is taking, and | can not say

that he is net correct. He simply intends now that vou should put

vour questions as vou desire, and he will object to each specific ques-

tion ax it comes, if he wants to, The objection will be sustained to

this question,

Defendant excepted.

Mr. Kremer: Now, if vour honor please, | renew my offer to

prove.

The Court: The court will not entertain the offer to prove. You

can put specific questions to this witness, which will cover vour offer

to prove. You can have an exception to the court's ruling on that.

Mr. Kremer: I don't desire an exception; | only want an under-

standing. |! would like to save time, if possible.

The Court: The court will finally say how its time should be

taken up, and it says it will give vou the time,

sano Mr. Kremer: All right, your honor, | will proceed on

that line.

Q. 17. When vou came to Butte, in the latter part of 1912, what

conversation, if any, did vou have with Mr. M. W. Atwater with

reference to the emploves—with reference to who were the emploves

in the Black Rock mill’

Mr. Garrison: That ix objected to as incompetent, irrelevant and

immaterial,

Objection sustained ; defendant excepted,

Mr. Garrison: If it is intended to contradict Mr, Atwater there

is no basis——

Mr. Kremer: The court has ruled,

The Court: There is time enough for one at a time. 1 did rule,

however, before you finished your objection, however, Mr. Garrison.

—

BUTTE & SUPR, MNG. CO, VS. MIN, SEP., LTD., ET AL. 2211

Mr. Garrivon: [ wanted to say that if it is intended to contradict

Mr. Atwater, no proper basis has been laid,

Objection sustained ; defendant excepted,

Q. 18. What conversation did you have with Mr. Atwater with

reference to Mr, Hyde's connection with the Butte & Superior Copper

Company Limited’

Mr. Garrison: IT object to that, if vour honor please, if it is in-

tended to contradict Mr, Atwater, on the ground that no proper basis

has been laid; and otherwise | cannot see how it is relevant or ma-

terial to any issue in this suit,

Objection sustained ; defendant excepted,

wo Q. 1 What did Mr. Atwater say to vou with reference to

whether Mr. Ivde was an emplove of the Butte & Superior

Mining Company, Limited’

Mr. Garrison: T repeat the objection that T just previously made,

Objection sustained; defendant excepted,

Q. 20. What, if anything did Mr, Atwater state to vou with refer-

enee to an inquiry propounded by vou, as to whether Mr. Hyde was

a consulting engineer or whether he was in the employ of the com-

pany?

Mr. Kremer: At this time I desire to state that if that is objected

toon the ground that it is leading TE will reform the quesion,

Mr. Garrison: | don’t object to it on the ground that it is leading;

I repeat the objection | made to the previous question.

Objection sustained ; defendant excepted,

Q. 21. What if anything did Mr. Atwater say to you with refer-

ence to Mr, Hyde's contract with the Butte & Superior Copper Com-

puny, Limited?

A. Mr. Atwater told me that that contract constituted the only

connection between Hyde and the company.

Q. 22. Did he show you a copy of the contract?

A. He did.

Q. 23. Mr. Wicks, | present to vou Plaintiff's Exhibit No. 1 and

ask you to glance over that and state whether or not the contract

there set forth is a copy of the contract which you refer to.

so A. Lean not identify it exactly from this copy, beeause |

can not identify the signatures,

. 24. Would you just glance over it and cee the substance of it,

and if necessary, read it?

Mr, Garrison; This is the only written contract there was, isn’t it?

Mr. Kremer: There was a modification of this contract. 1 don’t

think the witness ever saw the modification.

A. I can identify it by one portion of it in a moment, when I

find it.

RA SN COMI OY A PE ATT PRE Cet CErirr aeetrey ey Rereye’ a

2212 BUTTE & SUPR, MNG. CO. VS. MIN. SEP., LTD., ET AL.

Mr. Garrison: Outside of the record I will agree that it is the

same contract so the witness may be at liberty to answer yes if he

likes.

Mr. Kremer: Very well, it is the same contract.

Mr. Garrison: [| won't cross examine him about that.

Q. 25. It is the contract, isn’t it?

A. All right, with that understanding I ean identify it.

Q. 26. When did you assume charge of the mill?

A. On the first of December, 1912.

Q. 27. Did you have control of all the men operating in that

mill?

A. Yes, sir.

Q. 28. All of the employes of the company?

A. All of the employes of the company who were connected in

any way with the milling operations or with the surface

3942. operations which pertained to the milling department.

Q. 29. Did you, Mr. Wicks, know James M. Hyde during

that time?

A. Yes, | met Mr. Hyde then.

Q. 30. Was Mr. Hyde employed at that mill?

Mr. Garrison: I object to that.

The Court: The witness has already testified that he knew nothing

of the relations of Mr. Hyde other than what Mr. Atwater told him,

and this question calls for a conclusion ; he can only make his answer

from that information.

Mr. Kremer: No, vour honor, I believe the witness testified as to

what Mr. Atwater testified as to the contract, and Mr. Atwater told

him that that was the only connection with the company. This wit-

ness then took charge of the mill himself, and had superintendence

over the mill and all the employes of the mill.

The Court: You can ask him what control he exercised over Mr.

Hyde. This question calls for a conclusion and the objection will

be sustained. .

Defendant excepted.

Q. 31. What relationship—or at least what control did you, as

mill superintendent, have over Mr. James M. Hyde, if any?

A. I had none whatever.

Q. 32. Was Mr. Hyde in and about the mill?

A. He visited the mill several times, ves.

3943 Q. 33. Any particular portion of the mill?

A. Particularly the flotation plant. I showed him

through the other part of the plant, but he was around the flotation

plant himself.

Q. 34. What would he do about the flotation plant?

A. Stand around and look at it.

Q. 35. Anything else?

A. I never saw him do anything else.

Q. 36. As mill superintendent it was your duty, I suppose to

a

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BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2213

QO K or approve he pay rolls of the company with reference to the

compensation paid the men who worked in the mill?

A. Yes, I approved the mill payrolls, I think, every month, and

during a part of the time I also approved the entire plant payroll.

Q. 37. Did the name of James M. Hyde appear on that pay roll

at any time?

A. No; I can remember very distinctly that I never saw his name

upon the pay roll.

Cross-examination.

By Mr. Garrison:

X Q. 38. How long did you remain the mill superintendent?

A. Until April, 1915. ,

XQ. 39. From what month in 1912?

A. From December, 1912, until April, 1915.

X Q. 40. And how long after you went there did Hyde remain

there?

3944 A. I don’t remember having seen him around the plant

after February of 1913.

XN Q. 41. And when vou did see him around the plant, what

part of the plant was he around?

A. He generally went direct to the flotation plant.

X Q. 42. And where was that with respect to the mill?

A. At the lower end of the mill.

X Q. 43. And in the mill in the same building?

A. In the lower end of the main building.

X Q. 44. And that flotation plant was entirely under the charge

of Mr. Hyde, was it?

A. No, sir.

X Q. 45. Under whose charge was it?

A. It was under Mr. Shimmin’s.

X Q. 46. And he was what sort of an official?

A. He was assistant mill superintendent.

X Q. 47. You knew that Hyde, of course, was paid moneys by

the Butte & Superior Company for whatever he was doing, did you

not?

A. No, I had no knowledge of what payment they were making

on the contract.

Mr. Garrison: I move to strike out the part of the answer that is

not responsive, the latter part.

Mr. Kremer: We resist the motion, for the reason that the record

shows that that was the only contract between him and the company.

Mr. Garrison: It is not responsive; I asked him if he knew they

were paying Hyde money for whatever he was doing.

3945 The Court: It may be stricken after the word “no.”

Defendant excepted.

X Q. 48. Did you know what Hyde was doing there? Answer

yes or no.

— Nel PMR ARATE OER GR NPN BRECON HMR LEA PN ETIN NDA ASTORIA STD AN He IBIS eM Ot

2214 BUTTE & SUPR. MNG. CO. V8. MIN. SEP., LTD., ET AL.

A. Yes, I knew.

X Q. 49. And whatever he was doing, he was doing under Mr.

Shimmin’s direction, was he?

A. No, he was never under Mr. Shimmin’s direction.

Mr. Kremer: Mr. Shimmin came a year later.

X Q. 50. I thought vou answered a few minutes ago by saying

that Mr. Shimmin was in charge of the flotation plant at that time.

A. Mr. Shimmin was—I was in charge of the entire plant, and

Mr. Shimmin was directly under me in the direction of the opera-

tions; Mr. Kremer is wrong there. He succeeded me as superin-

tendent.

X Q. 51. T thought vou told me a few questions back that he was

under Mr. Shimmin’s directions.

A. No, sir; I did not intend to tell you that.

X Q. 52. Under whose direction was he?

- A. I don’t know.

X Q. 53. You know, do you not, that Mr. Hyde did not have the

direction of that flotation plant at that time, don’t vou?

A. Yes, I know that he did not have direct charge of the operation.

X Q. 54. Who did have direct charge of the operation”

3946 A. Mr. Shimmin.

X Q. 55. Whatever he did, he did under Mr. Shimmin’s

direction, did he?

A. I never saw Mr. Hyde do anything there.

X Q. 56. Why do you say that his presence was detrimental; do

you mean the mere bulk he took up?

A. Because of his advice and conversation with the employes.

X Q. 57. Being useless?

A. Absolutely.

X Q. 58. So that, as a matter of fact, whatever was done in that

flotation plant after you got there, was done by Shimmin?

A. Well, it was done by me; I was in charge of the plant.

Q. 59. Yes?

. But the major part of the direct operation was by Mr. Shimmin.

Q. 60. And that plant worked on Butte & Superior ore?

. Yes.

X Q. 61. And it was worked by Butte & Superior men?

A. Yes.

X Q. 62. And whatever avails came from it went into the same

coffers as all the other moneys of the Butte & Superior?

A. I don’t know where the money went.

X Q. 63. You have no reason to believe that it went to any other

place, have you?

MS nen

3947 Mr. Kremer: I object to that question as not proper cross-

examination.

Objection sustained. Plaintiff excepted.

Witness excused.

——

—_—

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2215

James MacponaLp Hype, a witness for the defendant, after being

duly sworn, testified as follows:

Direct examination.

By Mr. Kremer:

Q. 1. State your name.

A. James Macdonald Hyde.

Q. 2. You are the same James M. Hyde who was defendant in

the case of Minerals Separation Limited and another in a case

brought in this court?

A. I am.

Q. 3. And prosecuted through to the Circuit Court of Appeals and

to the Supreme Court of the United States?

A. I am.

Q. 4. Mr. Hyde, when did you come to Butte the first time?

A. I came to Butte in the spring of 1911; I believe it was in the

month of March.

Q. 5. What was the occasion of your visit to Butte?

A. I came as an assistant examining engineer to Mr.

3948 Kuehn, to make an examination of the Butte & Superior

mine, I believe for Hayden, Stone & Company, of New York.

Q. 6. Did vou at that time make any examination or make any

tests as to whether or _net-the ores-of the Butte & Superior Copper

Company, Limited, were adaptable to the oil flotation method of

treatment?

A. I did.

Q. 7. By whom—For whom did you make the tests?

A. I made the tests directly for Mr. Herbert C. Hoover, who has

since been chairman of the Belgian Relief Committee, and is so

well known in that connection.

Q. 8. What was Mr. Hoover then?

A. He was a mining engineer and an independent operator, and

in this particular business he was associated with Mr. Chester Beatty

of New York, relative to an interest which Mr, Beatty and Mr.

Hoover might have in a certain bond issue which was to be made.

The object of my visit was nominally that of assistant examiner of

mines with Mr. Kuehn. I took that position and acted in that

capacity to familiarize myself with the situation so that I could

determine for Mr. Hoover when the examination of the mine was

over, whether or not the ores of the Butte & Superior Company

could be so successfully worked as to make the bond issue probably

a profitable venture.

Q. 9. Was Mr. Hoover connected with the Butte & Superior Cop-

per Company, Limited?

3949 A. Not to my knowledge.

Q. 10. Or any of the gentlemen mentioned by you, were

they connected with the Butte & Superior Copper Company, Limited?

A. Not to my knowledge.

°

a eee eS a Cae oo een Teer te ee i

ee

Q. 11. After you had made those tests, did you make a report

to Mr. Hoover, Mr. Beatty and others?

A. I reported to no one but Mr. Hoover, until after Mr. Hoover

had given me his permission to report to others.

Q. 12. When was that permission given, approximately?

A. My memory of the circumstances is this, that when Mr. Kuehn

made his report in New York I received a telegraphic inquiry to

know what results | had obtained in testing the ore by other methods

than those used in the mill, and I replied that 1 could not inform

anyone but Mr. Hoover, and that his permission would have to be

obtained before I would make any report at all, and my memory

is that I telegraphed Mr. Hoover asking that he give me permission—

and that he gave me permission to inform Mr, Kuehn, not in definite

figures, but in generalizations as to what I had learned.

Q. 12-A. Did you say anything to Mr. Kuehn?

A. I did.

Q. 12-B. Was Mr. Kuehn connected with the Butte & Superior

Copper Company, Limited, if you know?

A. I don’t think that he had any official connection with

3950 the company; my understanding was that Mr. Beatty was

acting as a consulting engineer with Hayden, Stone & Com-

pany, as well as an associate in some business matters, and that this

examination was being made for Mr. Beatty, or at the request of

Hayden, Stone & Company through Mr. Beatty.

Q. 13. At that time did Hayden, Stone and Company have any-

thing to do with the Butte & Superior direct?

A. I had no definite knowledge that they had, and understood

that they had not.

Q. 14. When did you have a conversation or correspondence or

communication with anyone connected with the Butte & Superior

Company, Limited, upon the subject of flotation?

A. When the mine examination which I referred to was com-

pleted, I took a room at the Napton House in this town, for the

purpose of having a kitchenette which would answer for a laboratory,

and I tested the Butte & Superior ore there at my own expense, and

bearing all of my own expenses, while my tests were going on. I

had a test machine made and tested the ore and while in the course

of making my tests Mr. R. M. Atwater arrived from New York and

told me that he had there met Mr. Hoover and that Mr. Hoover had

told him that I was acquainted with ore dressing in its many varia-

tions, and that he had requested me to investigate this ore and find

what could be done with it, and Mr. Atwater

3951 Q. 15. State who Mr. Atwater was.

A. Mr. R. M. Atwater, I was informed, was the general

manager of the Butte & Superior Company.

Q. 16. Proceed.

A. Mr. Atwater asked me to report to him as to the investigation

that I was making and I told him that I could give no information

to anybody but Mr. Hoover.

Q. 17. And did you secure permission later?

A. I did not; I gave no information to Mr. Atwater at that time.

2216 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

OE PLL ELIE NE

~—

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. melt

Q. 18. Well, what happened then, so that we will move along to

the time when you did communicate with Mr. Atwater?

A. Mr. Atwater told me that he was going to New York, an-l the

next that I heard was Mr. Maxwell Atwater reported to me that

there had been a negotiation between Capt. Wolvin and Mr. Atwater

and certain officials of the Minerals Separation Company, and that

they had found, as he put it, that they would have to deed their mine

to the Minerals Separation Company if they did any business with

it, and he wanted to know if I could report to him at that time as to

what could be done.

Q. 19. Who was this conversation with—M. W. Atwater?

A. With M. W. Atwater.

Q. 20. The same man who testified here?

A. The same man who testified here the other day. At

$952 that time they asked me if | would make an investigation of

the subject for them. I told them I knew nothing in regard

to the progress of Mr. Hoover’s negotiations and would take no action

in the matter whatsoever. At a later date, upon further urging on

their part that something be done in’ the matter, I eabled) Mr.

Hoover—my memory is that he had gone to London—and received

word from him that his relations with the matter had ceased, and that

1 could do anything | pleased in the matter. I had been in Butte

then a considerable length of time, expecting that something would

be done in that matter,—One thing T forgot to state that would show

my relationship to this—When I began this investigation at Mr.

Hoover's request, it was with the understanding that if he and Mr.

Beatty participated in the bond issue, they would carry me for a part

of the bonds, and that—by that expression I mean that they would

give me an option on part of the bonds at a price, and they would

hold them for me from that date at that price, so that at some later

date if the bonds increased in value, | would get a profit.

Q. 21. Was that the incentive that vou had in making these

tests?

A. Entirely so; at the time I had no other reason for working the

ore myself.

Q. 22. Now proceed.

A. After Mr. Hoover’s connection had ceased, and he had so m-

formed me, and that I could do anything that T pleased. aisd

3953 further urging upon the part of Mr. Atwater that 1 investigate

and report to them upon the matter, I toll Mr. Maxwell

Atwater that I would do so upon one condition and one only, and

that condition was that they should pay the expenses, and nothing

more, of an investigation which would result in a study of the prob-

lem, and a determination of what could probably be done, and when

I turned in that report to them they were to make me a proposition

if they wanted the work done.

Q. 25. At that time was there any milling operation conducted in

the United States by the use of the flotation process?

A. Not to my knowledge.

Q. 24. Did you have a general knowledge of mill operations?

A. I did. In the course of my investigations I had arrived at a

DEEZ SR EET. BUHL IT CREE STON DRE POMP TNR AN AE Toe 8 aE WI RNY TEE LOR ITY REELED ATE I EERE

—

2218 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

practice which seemed to me different from anything that had pre-

viously been used, and I told Mr. Atwater of that fact. When I

made my investigation it was on the understanding that when my

report was rendered to them they should make me a proposition as to

what basis they wished this work done upon, and that I would either

accept or reject that proposition without debate. It was upon that

basis that the investigation was made.

Q. 25. After the investigation was made by you, what if any con-

tract did you make with the Butte & Superior Copper Company,

Limited, then?

3954 A. I entered into the contract which has been entered as

an exhibit in this case.

Q. 26. You refer to plaintiff's exhibit No. 1?

A. It is so designated here.

Q. 27. Did you, at any time, have any other agreement with the

Butte & Superior Copper Company save this agreement and the

modification thereof, which I believe is also in evidence, verbally or

in writing, having to do with your compensation for the conduct-

ing of these flotation operations referred to?

A. There was a preliminary agreement which does not appear

here; I don’t know that it was anywhere in writing—that during this

period of investigation I was to receive absolute expenses.

Q. 28. I think that is embodied in the contract also”

A. Yes, it was embodied in the contract.

Q. 29. When I refer to the modification of that contract I refer to

plaintiff’s exhibit No. 2?

A. Yes.

Q. 30. Now, after this contract was signed and the agreement

entered into, did you have any other agreement at any time with the

Butte & Superior Copper Company, L imited, with reference to your

compensation or remuneration for conducting any operations, save

and except the modification of the contract as it appears in plaintiff's

exhibit No. 2.

A. There was one verbal modification in this agreement to this

extent, that as my actual expense amounted to more than $5.00 a

day, and my memorandum showed that they amounted to

3955 more, Mr. Atwater said it would simplify matters if the lump

sum of one hundred fifty dollars (which was the maximum

amount I was to be allowed) should be paid to me without question.

Q. 31. Was there any other modification of that agreement?

A. None.

Q. 32. Was there any agreement subsequently made about your

compensation which was embodied in any other paper than the con-

tract and the modification ?

A. None whatsoever.

Q. 33. Now, with reference to the expense money that you have

mentioned, could you tell us the cause of that modification ?

A. Well, this first amount that I have referred to—I meun this

first one in relation to my actual expenses, was when I was at Basin.

I had my family with me, and my expenses amounted to more than

$5.00 per day, and so it was mutually agreed that instead of present-

,..

BUTTE & SUPR. MNG, CO, VS. MIN. SEP., LTD., ET AL, 2219

ing the items and the showing of my exact expenses, that the amount

would be considered to be $150.00 per month.

Q. 34. I understood you to say in fact that they were more?

A. They were more.

Q. 35. Well—Were you ever at any time in the employ of the

Butte & Superior Copper Company, Limited?

3956 Mr. Garrison: That must be a question of law, if your

honor please. He has stated what the contract was.

Mr. Kremer: I asked the question with design, anticipating the

objection.

Objection sustained, Exception.

Q. 36. Were you at any time under salary with the Butte & Su-

perior Copper Company, limited?

A. Will you first tell me what you mean by salary?

Q. 37. Were you ever at any time under an agreement of employ-

ment to receive a stipulated sum over a period of time for services to

be rendered by you to the Butte & Superior Company ?

I was not—May I ask you to specify still further; do you mean

by that definite amount for a given amount of time?

Q. 38. Yes.

A. I was not.

Q. 39. State to the court what your position was in so far as your

arrangements with the Butte & Superior were concerned, in what

capacity were you acting?

A. I acted in the capacity that is shown in this contract.

Q. 40. State it, Mr. Hyde?

A. This was a capacity which I discharged in two stages. The first

was to design and superintend the erection of and the operation of a

fifty-ton test plant at Basin, Montana, operating the same for

3957 a period of thirty days’ time. Contingent upon the results of

that operation, as shown by this contract, the superintendent

of the company had a right to declare the result unsatisfactory and

terminate all arrangements between us; and I had a right, if the re-

suits were unsatisfactory, to terminate the agreement on the basis that

the increased earnings would be so slight that the compensation com-

ing to me would be not sufficient to warrant me in giving my time to

the matter.

Q. 41. Well, were you acting as one offering their services for a

fixed compensation, or were you acting as an independent engineer-

ing contractor?

Mr. Garrison: I object to that, if your honor please.

Mr. Kremer: Upon what ground?

Mr. Garrison: It is a question of law entirely. He has stated

he was acting under a contract.

The Court: What conclusion should be drawn will appear from

the facts, not his conclusion. The objection will be sustained.

139—Ree.

r "

2220 RUTTE & SUPR, MNG. CO. VS. MIN. SEP., LTD., ET AL.

Mr. Kremer: Proceed, Mr. Hyde. Was there any other stage or

any other division?

A. The second stage of the operation was that if in the first stage,

the test stage, the operations proved sufficiently successful so that the

superintendent or executive officer of the company should determine

that the company wished to pursue them, I should then plan a larger

installation, supervise its installation for a period up to ninety

3958 days, giving only such portion of my time during this ninety

days as was actually needed for the satisfactory supervision of

the work.

Q. 42. During your dealings with Mr. Atwater referred to, did Mr.

Atwater at any time represent to you that he had the power to enter

into a contract with you?

A. Mr. Atwater informed me specifically that it was impossible for

him to enter into a contract himself; that he could only draw a

memorandum of agreement and submit the same to Captain Wolvin,

the president of the company in Duluth, Minnesota.

Q. 43. Referring to page 135 of Mr. Atwater’s testimony, I read

you the following: “Q. What did he say about that? A. You mean

in connection with the arrangement which he and I had made?

Q. Yes, in connection with the arrangement that you made with

him? A. He asked as part of our agreement that the company stand

the expense of any suit that might be brought against him.” Did

you ever make such a statement to Mr. Atwater? Did you ever make |

such a request?

A. I have no memory of making any such statement. The only

memory that I have is that the matter of possible litigation was dis- |

cussed, I don’t remember whether he mentioned it, or whether I

did, but 1 remember of telling him at that time that if the company

were sued it was very natural that they should have to defend them-

selves, as the total amount of compensation which was being offered

to me would be insufficient, of itself, to pay the expenses of a law-

suit.

3959 Q. 45. Was the company sued, to your knowledge, within

any time, several years after that’

A. The company was not sued during any portion of the time that

I was associated with the milling operations.

Q. 46. Who was sued, if anyone?

A. James M. Hyde.

Q. 47. Now, Mr. Hyde, did you make any statement to Mr. At-

water about patents which you had in contemplation?

A. I told Mr. Atwater that in the course of the tests that I had

made upon the Butte & Superior ore I had demonstrated that certain

novel features of treatment apparently gave better results than any

type of treatment that had previously been used.

Q. 48. What did you say to him with reference to your taking out

patents?

A. I told him that I was going to apply for a patent upon these

improvements and that the treatment which the application got in

the patent office would tend to demonstrate whether the improve-

ments were novel.

ome: et — |

BUTTE & SUPR. MNG, CO. VS. MIN. SEP., LTD., ET AL, ye gd

!

i Q. 49. Did he ask you why you took out patents on a process

when you considered the patents which already existed were of no

value?

: A. I have no absolute, definite memory with regard to his declara-

; tion in the matter, but I know that he did ask some such question,

! I have a very definite memory of what my answer to it was.

: Q. 50. Please state your answer?

A. My answer was this; that the extended investigation

3960 which I had made of flotation patents indicated to me that

the patent upon which the claims of Minerals Separation were

based was invalid and that the matter in it had been entirely divulged

‘ in the United States patent granted to Carrie J, Everson, and in the

British patent granted to Alcide Froment.

Q. 51. Did you answer him that you had been advised by counsel

to take out that patent at that time?

A. I probably did.

Q. 52. Now, Mr. Ilyde, the following I read vou from the testi-

mony of Mr. Atwater, page 139 of the record at the bottom of the

page: “Q. Did you pay him a flat sum of money per day or did you

pay him moneys made up of items of expenses; or both? A. We paid

him so much a month.” Is that true?

A. There was never any understanding that any sum of money

F paid on a monthly basis was compensation for services rendered,

; The understanding was flatly that—as is shown in the contract, whieh

i is exhibit 1—that only expenses would be allowed up to the time

4 when the results of the work had demonstrated for themselves what

e might possibly be done. TI will say further with regard to this

matter that Mr. R. M. Atwater had requested that I make this in-

vestigation for the Butte & Superior Company upon the basis of a

fixed compensation and he offered me the magnificent sum of

$10.00 per day for making the investigation. I told Mr. Atwater

that the compensation was not compensation at all and 1 wouldn't

consider the matter upon any such basis.

3961 Q. 53. Now, Mr. Hyde, I read you the following from the

testimony of Mr. Atwater, page 140: “Q. Did you—when did

you cease paying him moneys? <A. | think when he left Basin.

Q. 54. And about when was that? A. That was—why, T think he

received a salary after he left Basin. I will correct that. While he

F was working at Butte on the flotation plant here.” Is that correct?

A. I have no memory of having received any regular amount of

: money in Butte. It is possible that the same allowance of $150.00

per month was made.

Q. 55. Mr. Hyde, please listen to this question and answer what

I ask you and as briefly as possible: “Q. And about when was that?

: A. That was while—why, I think he received a salary after he left

Basin, I will correct that. While he was working at Butte on the

flotation plant here.”

A. I never received a salary under any circumstances.

Q. 56. Then that is not true?

; A. It is not true. °

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2222 BUTTE & SUPR, MNG, CO, V8, MIN, SEP., LTD., ET AL,

Q. 57. Then following, the next question: “At Butte? A, At

Butte, I think he received so much a month,” Is that true’

A. I haven't any memory of having received any fixed stipulation |

at Butte, |

; Q. 58. Well, you would have a recollection, wouldn't you, if you |

vad?

A. I think I would, |

Q. 50. Well, do you know whether you would or not, Mr,

3962 Hyde? Do you remember receiving the money’

A. Well, my memories in regard to the matter are simply

that I received this allowance up to five dollars a day of expense

money while at Basin and only expense money that came from my

expense incurred in other ways afterwards, |

Q. 60. Have you examined the copies of the vouchers set forth in

the table of exhibits’

A. Only very cursorily,

Q. 61. Have you, Mr. Hyde’

A. I have,

Q. 62. Do you recollect receiving the sum specified in’ those

vouchers?

A. They seem to be sums which T have received.

Q. 63. Do you desire to comment upon any of them, Mr, Hyde?

A. Why, those that I recognize are for expenses incurred in

traveling. They are not for expenses—and | see an item for the

Thornton Hotel which is one of the visits which I made to Butte,

Q. 64. I deliver to you for inspection and comment defendant's

exhibits 166, 167, 168, 169, 170, Ii, 172, 178, 174 and 175, and I

will ask you, Mr, Hyde, to briefly comment upon any one of these

that you desire to mention specifically,

A. The first one at hand is voucher defendant's exhibit 166, ex-

pense account for July, 1911, at $5.00 per day, one third payment on

test machine $10.00, The next one is exhibit——

3963 Mr. Garrison: These are all described in the minutes,

(Question read as follows: “I deliver to you for inspection

and comment defendant's exhibits 166, 167, 168, 169, 170, 171,

172, 173, 174 and 175, and I will ask you, Mr. Hyde, to briefly

comment upon any one of these that you desire to mention specifi-

cally.’’) ‘

Mr. Kremer: Any one of them, if there is any one of them that

you think needs any comment?

A. I see none of them that needs comment. ,

Q. 65. I hand you defendant’s exhibit 176 and ask you if there

are any comments you desire to make upon that?

A. This is for an expense account you see.

Q. 66. Did you receive the expense account?

A. I have no definite memory of so doing but as it is my signa-

ture I have no doubt that I did.

Q. 67. Now, proceeding, Mr. Hyde, I will ask you in what coun- ‘

*

>.

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2223

tries, if any, you have procured letters patent, of your patent 1,022,-

ORS?

A. Letters patent were issued to me in the United States, and

upon the equivalent subject matter in Canada, Mexico and Australia.

Q). iS. In Australia, did you say’?

Mr. Garrison: He did,

A. Yes.

Mr. Kremer:

Q. 69. Do you know whether flotation operations had been con-

ducted or originated in Australia long before the filing of your

patent?

A. There had been.

3M Q. 70. To what extent do you know?

A. The principal development of the art previous to 1911

took place in Australia,

Q. 71. Now, Mr. Hyde, what, if any, other agreement did you

have with the Butte & Superior Copper Company, Limited, if any,

than the ones you have referred to here’?

A. Thad a certain agreement with the Butte & Superior Company

mole after 1 was sued for infringement of United States patent

835,120, that for and in consideration of the granting to them any

rights that | might obtain by United States patent to the procedure

that | was using in treating ores, and for the farther consideration of

not competing in any way with them in the Butte district, they

would pay the expenses of the litigation.

Q. 72. For whom’?

A. For me.

Q. 73. Was there any other consideration of the license or right

which you refer to than the consideration of the paying of the ex-

penses of vour litigation?

A. No. They were to pay the expenses of the litigation and of

myself in travelling during the litigation.

Q. 74. Who had the direction or handling of your litigation’

A. 1 did personally.

Q. 75. Did the Butte & Superior Copper Company, Limited, or

the Butte & Superior Mining Company at any time have direction or

control of the suit of Minerals Separation et al. vs. James M.

Hyde?

8965 A. They did not.

Q. 76. Please state to the court who, if anyone, had the

right to withdraw your defense in the suit of Minerals Separation,

Limited, et al. vs. James M. Hyde?

A. There never was anyone who had that right but myself,

Q. 77. Who, if anyone, had the right to make a settlement or

adjustment of the controversy existing between yourself and Min-

erals Separation, Limited, et al., as set forth in the suit of Minerals

Separation, et al. vs. James M. Hyde?

A. No one but myself.

2221 BUTTE & SUPR, MNG, CO, V8, MIN, SEP., LTD., ET AL.

Q. 78. Who, if anyone, had the right or authority, aside from

yourself, to direet the method of manner of procedure or the litiga-

tion in the ease of Minerals Separation, et al., v. James M. Hyde?

A. No one,

Q. 79. What, if any, connection did the Butte & Superior Copper

Company, Limited, or did the Butte & Superior Mining Company

have with the suit of Minerals Separation, et al., vs. James M. Hyde,

that being the case that | have constantly referred to as having gone

to the Supreme Court?

A. They had no connection with it whatever, other than referred

to in the contract with me to pay the expenses of the litigation, which

I have mentioned,

Q. S80. Did they so pay the expenses?

A. So far as | know they did,

Q. St. Who had the direction and control of the lawyers represent-

ing vou in the case of Minerals Separation, et al, v. James M.

Hyde”

Bit A. Counsel were seleeted by myself personally, and the

counsel informed me that to a very unusual degree I set with

therm at all times directing the line of questions that should be asked

amd worked out the line of tests that should be introduced in evi-

denee.

Q. S82. Did anyone purporting to be the representative of the

Butte & Superior Mining Company give counsel or direction, to your

knowledge, to vour lawyers; or did you do so yourself, exeTusively ?

A. To my—T have no knowledge of anyone but myself ever coun-

selling them as to what course of action should be taken.

Q. S83. You engaged as one of your lawyers a practitioner who

also represents the Butte & Superior Copper Company, Limited, did

you not?

A. I did.

Q. 54. 1 wish you would state the circumstances of that employ-

ment?

A. When the Butte & Superior Company agreed, for the com-

pensation which T have mentioned to bear the expenses of the suit,

I went to Mr. J. Bruce Kremer of Butte and asked him if there was

any reason why he could not represent me as counsel, THe replied

that there was not. I asked him if there were any reasons in his

connection with anyone that would in any way interfere with his

representing my interest- as though they were the sole interests that

he represented in his whole practice and he said that so far as this

litigation was concerned there was not. I thereupon retained him

to act as counsel for me in this litigation.

3967 Q. 85. Did you engage anyone else?

A. T did.

Q. 86. Who?

A. T engaged the firm of Sheridan, Wilkinson, Scott & Richmond.

Q. 87. Under what circumstances?

A. I discussed the matter with Mr. Kremer and asked him what

he would advise in the circumstances and he told me of the fact that

he was a corporation attorney and in the general practice of law,

|

BUTTE & SUPR, MNG. CO, VS. MIN. SEP., LTD., ET AL. 2225

and was not in any sense a patent attorney, and that he would feel

ho more competent to undertake the work of the defense of a patent

suit than he would to engage in the practice of the Admiralty law;

and he suggested that we find out who would be best equipped to

represent us in this particular matter, When [say “us” T mean

myself as client and he as counsel, He made inquiry from Mr. D. C,

Jackling, a man of great experience, and Mr, Jackling suggested

that he had known Mr. Sheridan very favorably, and we made a

trip to Chicago, Mr, Sheridan being away we discussed the matter

with Mr. Walter A. Seott. | remember after our interview with

Mr. Scott we retired and discussed the matter between ourselves, and

as a result of our diseussion we decided that he seemed to be a man

who was particularly equipped to conduct the defense of an action

of this kind,

Q. 88. And that was then the beginning of the employment of all

of your counsel?

A. Yes, sir.

SHG8 Q. 89. From that time on who directed the conduct of your

case to these counsel?

A. 1 did personally.

Q. 90. Could you at any time, Mr. Hyde, of your own volition, have

discharged any and all of your counsel and employed new ones”

A. There was no time up to the present time when | could not

have discharged counsel and taken new ones; and it is my right

today and my sole right to appeal for a rehearing of my ease in the

Supreme Court and to retain as my counsel there either the learned

counsel whom | have had or any other counsel whom IT may select.

Q. 91. Now, Mr. Hyde, there is among the exhibits some corre-

spondence with reference to the matter of your settlement and ad-

justment with the Butte & Superior Copper Company, Limited, of

the amount due you or claimed to be due you under the contract in

evidence. I wish you would briefly explain that correspondence.

I think vou have examined the documents?

A. The principal document here is a letter from James M. Hyde

addressed to N. B. MaeKelvie.

Q. 92. Just give the number of the exhibit so opposing eounsel

can follow it.

A. That is a letter appearing upon page 25 of the volume of ex-

hibits whieh | have here in hand. It is dated July 15th, 1913.

Mr. Kremer: You needn't read it all, Mr. Hyde, if you have

read it.

3969 A. This is a very full statement and it seems to me needs

very little elucidation. It is a complete statement of the

history of the relations between myself and the Butte & Superior

Company, of the conditions which we recognized in the work and

throughout my relation to the company is always referred to on the

basis of the contract, the contract being that which was introduced

here as an exhibit.

Q. 93. Was there any difficulty between yourself and the company,

or in the controversy between yourself and the company as to the

settlement of your compensation ? ,

2226 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

A. There was.

Q. 94. Please state the circumstances surrounding that?

A. The original agreement

Q. 95. Just briefly, Mr. Hyde?

A. (Continuing:) —was entered into upon a basis that a 90 day

period of work at Basin, on the basis of certain experiments being

made and certain machinery, should really bring our agreement to

a termination, and the company did not see fit to carry out the

agreement and install the machinery that was called for at Basin.

Therefore, the final adjustment had to be deferred until after the

mill was built in Butte and put into such shape that it carried out

the recommendations that had originally been made for Basin.

There was considerable delay in carrying out these recommendations.

Q. 96. And upon the matter of settlement?

3970 A. The matter of settlement was a matter of a number of

conferences, one of them taking place here in the city of

Butte, in which Mr. J. Bruce Kremer represented the Butte & Su-

perior Company, telling me at that time that I must recognize while

he was my counsel in the patent matters that in the matter of this

agreement with the company which had been specifically referred

to him by Mr. MacKelvie, he was the counsel for the Butte & Su-

perior Company and would have to act in their interest.

Q. Did he make any suggestion to you as to the employment of

other counsel ”

A. He made the suggestion to me at that time that if I felt if it

was necessary for me to take any legal action, he would advise it

would be necessary for me to have other counsel and he reecom-

mended to me, not in his capacity as an officer of—officer represent-

ing the Butte & Superior Company, but in his personal capacity as a

friend, that the argument be settled, not upon the basis of the con-

tract, but upen a mutual understanding taking everything into

account,

Q. 97. You say as “an officer of the company.”

A. I mean as counsel for the company.

Q. 98. And was that done ultimately ?

A. Yes, that was done ultimately.

Q. 99. And a satisfactory adjustment was made?

A. A satisfactory adjustment was made.

Q. 100. Now, Mr. Hyde, you stated that this arrangement was

made between yourself and the Butte & Superior Company with

reference to the defense of this suit. With whom did you make

that contract?

3971 A. That contract was made with Captain Wolvin person-

uly, he being at that time president of the Butte & Superior

Company.

Q.101. You further state, I think, that it was in consideration

of the settlement—of the assignment of certain rights. Did you

actually make an assignment?

A. That assignment was made after the patent was duly granted.

Q. 102. And recorded in the Patent Office?

A. So far as T know it was. I instructed my counsel to record it.

s | —_—

BUTTE & SUPR, MNG. CO. VS. MIN. SEP., LTD., ET AL. 2227

Q. 103. Now, Mr. Hyde, it is averred in the pleadings here that

. your patent No, 1,022,085 for the concentration of ore and retreat-

: ment of concentrates, is a sham patent and that it discloses no in-

vention. I will ask you to state whether that patent is a patent of

practical utility ?

; A. I had a rather unusual experience in applying for that patent

. in that I went in person, with Mr. Scott, to the patent office and took

the matter up with Mr. Mitchell, who was examiner in that division,

and Mr. Mitchell told me at the time of our first talk with him

Mr. Garrison: I hardly think we ought to have what Mr. Mitchell

told him.

Mr. Kremer: You needn't state what Mr. Mitchell said. You

can state what you did.

A. The matter was presented there in person and was granted

very shortly The patent covers two main features of operation,

one being the use of sulphuric acid, not in the manner in

3972 which it had been previously used, that of adding it directly

in large quantities into the machine, but of adding a much

smaller amount of sulphuric acid or some equivalent, allowing a

space of time to elapse so that the smaller amount, acting in the

more dilute solution, would have a greater length of time in which

to perform its funetion, and bringing the pulp to the machine and

treating it. It covered a second matter, that not of—as has been

represented—not the practice of retreatment but of a special method

of retreatment and cleaning of the concentrate, that special method

consisting of the running of the pulp through a machine in which

the attempt was made to eliminate and save the concentrate, the

sulphide, as completely as possible, without regard to the commercial

grade of the concentrate, and the then taking of that low grade of

concentrate from the first machine, which was, because of its func-

tion, called a rougher, and taking the concentrate to a second ma-

chine and therein making a high grade concentrate. This method

was described in the patent in detail as being one in which the

water level in the rougher should be kept at such a level that the con-

centrate would overflow most rapidly and most completely, even

F if some of the water and slimes overflowed with it. And in the

second machine to maintain the water level at so low a point that

only the concentrates would overflow, the tailings from the first

machine being returned to the first or the recleaner or a grinding

device before coming back for retreatment. This patent occupies

a peculiar position in the many patents which have been

3973 granted in the flotation work insofar that it is more snecific

in its disclosure; gives more instructions which can be fol-

lowed by a millman, and in the body of the patent relates results

which have actually been accomplished in the operation of the pat-

ent upon a commercial scale.

Q. 104. Where was that being operated; where was it operated?

A. That process was first operated, to my knowledge, at Basin,

Montana, and so far as I know, has been continually operated by

the Butte & Superior since that time.

ERROR ALICIA 6 we

Diba bese

fee nA ccalaaiahS i Odi

to

228 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

Q. 105. Now, Mr. Hyde, did the company ever make any ar-

rangement with you or ever in any manner or form agree to hold

you harmless in damages in any litigation or in connection with

any litigation?

A. The company did not, and it was a matter of great personal

relief to me

Mr. Garrison: I object, if your honor please, to his state of mind

I can’t see that that is material.

The Court: I think vou have answered the question. q

A. There was one point of procedure. you asked me to discuss :

this here. Do you wish one comment upon it? ;

Mr. Kremer:

Q. 106. What was that, in the matter of procedure?

A. The matter of procedure that was outlined and carried on in

this machine.

Q. 107. Well, not in any detail, Mr. Hyde. It is in the letter;

but what I wanted particularly was the matter of your settlement

and adjustment? I read you from the testimony of Mr. Atwater:

“Q. Could you discharge or could you have, in your judgment, have

discharged Mr. Hyde? A. Yes. Q. As an employer? A.

3974 Yes, at that time I could have. Q. Upon what basis do you

make that statement, the contract? A. I based it upon the

fact the president asked me why I didn't tell him, the president of

this company.” At any time did Mr. Atwater ever say to you that

he could discharge or employ you?

Mr. Garrison: I object. There isn’t the slightest intimation in

Mr. Atwater’s testimony that he conveyed any such suggestion to

this witness.

The Court: I think the witness Atwater testified he could dis-

charge him and then gives a reason which shows that he couldn't.

It looks that way.

Mr. Kremer: With that in mind, if that is the interpretation, I ‘

am perfectly willing to let it rest. I wanted to ask him because | |

thought there might be a question about it.

The Court: You may ask the question if you desire, if he could

have discharged him?

ale eect that beaitted one

Mr. Kremer: Could he have discharged you?

A. He could not. There was nothing to discharge me from. I

was carrying out a contract.

Mr. Kremer: May it please the court, I offer in evidence an assign-

ment, a certified copy of an assignment, of patent, the rights to pat-

ent 1,022,085, as testified to by the witness, this being a certified

copy of the patent. of the rights in patent 1,022,085, filed in the

patent office of the United States. Any objection? 3

Mr. Garrison: No.

it

int Baran east ele tal anita A

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2229

Assignment of patent admitted in evidence and marked Defend-

ant’s Exhibit 252,

3975 Mr. Kremer:

Q. 108. Mr. Hyde, I offer you defendant's exhibit 178, a part of

which is composed of a purported copy of a telegram sent to you by

NX. B. MacKelvie from Berkeley, California, reading as follows:

“Have received word of decision from Kremer but no details. I

take for granted that appeal will be filed. Am at your service for

any conference the occasion may require. Will expect matters

under discussion to be held in abeyance until new and unexpected

‘ituation is taken care of. (Signed) James M. Hyde, telegram

dated July 30th, 1913.” I will ask you to examine that telegram

and instruct the court to what it refers?

A. | judge from the date of this that it refers to the decision of the

Montana Distriet Court in question. The only way I can comment

upon this thing is by giving my state of mind which has been ob-

jected to.

©. 109. No, don't give vour state of mind, but you can state what

you meant by it.

Mr. Garrison: I don’t know, if your honor please.

Mr. Kremer: Oh, ves.

Mr. Garrison: Just a minute. I will address the court. T object

to this witness testifving what he meant unless there is something

obscure. Of course if there is some word that is obscure that is an-

other matter. We are quite as competent to tell what a man says

as he is.

Mr. Kremer: We have a right to explain.

The Court: There is nothing in it to explain.

3976 Mr. Kremer:, What it refers to, this line, it doesn’t mean

anything.

The Court: He has already said it referred to the decision of this

court, which apparently or possibly came about that time. The

objection will be sustained.

Mr. Kremer: Exception.

Q. 110. What is meant by the statement with reference to appeal?

The Court: Oh, well, that shows for itself. We all know that

there was an appeal.

Mr. Kremer: There was an appeal but that is not in this record,

the statement as to his directing the appeal.

The Court: You may ask him in reference to that whether he did

direct the appeal.

Mr. Kremer:

Q.111. Referring to the appeal mentioned in that telegram, who

directed that appeal to be taken?

A. I did.

Mr. Kremer: That is all.

—

2230 BUTTE & SUPR, MNG. CO. VS. MIN. SEP., LTD., ET AL.

Cross-examination.

By Mr. Garrison:

X Q. 112. When did you leave the employ of the Minerals Sepa-

ration, Limited?

Mr. Kremer: I object to that as not proper cross-examination,

There is no testimony in this record that Mr. Hyde was ever in the

employ of the Minerals Separation, and he was asked no question

about that on direct examination. It is improper cross-examina-

tion.

3977 The Court: So far as the court can see, it would seem to be.

Mr. Garrison:

X Q. 113. Were you ever in the employ of the Minerals Separa-

tion, Limited?

Mr. Kremer: I object to that as incompetent, irrelevant and im-

material, having no bearing upon the issues in this case and not

proper cross examination.

The Court: It might be the relation between the parties. I as-

sume counsel has some object.

Mr. Garrison: I will not consume more than a few moments of

the preliminary question.

The Court: Objection overruled.

Mr. Kremer: Exception.

A. I was.

Mr. Garrison:

X Q. 114. And when did you leave their employ?

Mr. Kremer: We object. I suppose all of this will go in under

our same objéction?

The Court: Yes.

A. So far as I remember it, it was the last of January, 1911.

X Q. 115. And where were you at that time?

A. I was in the city of London, England.

X Q. 116. Which was the headquarters of the Minerals Separa-

tion, Limited, was it not?

A. It was at that time.

X Q. 117. And you then came from there to what part of this

country?

Mr. Kremer: Now, we renew our objection to that unless some

reason is disclosed, for the purpose of showing animus, I do

3978 not see where it could have any other bearing than that.

The Court: I think you may proceed. This is cross ex-

amination. To give your reasons does not apply as it does on direct.

He has a right to show the relation and attitude of this witness to the

parties. The objection will be overruled.

Mr. Kremer: Exception.

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 9931

Mr. Garrison: I merely asked him where he came to in this

country,

The Witness: At that time I remained in London,

Mr. Garrison: Read what I said please?

(Question read as follows: “And you then came from there to

what part of this country?”)

Mr. Garrison:

X Q. 118. You couldn't remain in London and come from there.

I asked you after you left London.

A. As I understand the question was as to

The Court: Answer the question.

A. From where?

Mr. Garrison:

X Q. 119. Where did you come to when you left London?

A. I came to New York.

X Q. 120. And from thence where?

A. | came from thence to Butte, Montana.

XQ. 121. And when did you get to Butte?

A. I don’t remember the date definitely, but it was some time in

March or April.

X Q. 122. Of what year?

1 3979 A. 1911.

X Q. 123. And how long were you engaged in the investi-

’ gation in which you assisted Mr. Kuehn?

; A. I have no definite memory of the length of time, but it was

some two or three weeks.

X Q. 124. And were you through the employment in which you

had been engaged, assisting Mr. Kuehn in whatever investigation

he was making?

A. I was.

X Q. 125. And you remained in Butte then as I understand it,

after that time?

A. I did.

XQ. 126. And during that period were you making these experi-

ments that vou speak of with the Butte & Superior ore, to see whether

it was a subject of flotation?

A. As I have testified I was making those experiments.

X Q. 127. After you and Mr. Kuehn got through and during

the time that you remained in Butte?

I was.

X Q. 128. Did you bring a slide machine with you or did you

have one constructed here?

A. I had one constructed here.

X Q. 129. Did you bring one with you?

; A. I did not.

X Q. 130. About when did you have your first interview with

Mr. Maxwell Atwater, of which you have testified ?

Tee iets

ms vs OS RT ee el a OC LY SOD ise: alae th aNd Rls a a

——

9932 BUTTE & SUPR. MNG. CO, VS. MIN. SEP., LTD,, ET AL.

A. While I was making the mine examination I was

3980) meeting Mr. Maxwell Atwater every day, and I have no

definite memory when the subject was first mentioned.

X Q. 131. You have stated that you first had a conversation con-

cerning negotiations with the Butte & Superior with Mr. R. M.

Atwater, have you not?

A. I have.

X Q. 182. And that subsequently you took the matter up with

Max Atwater?

A. I have.

X Q. 133. When was it that you took the matter up with Max

Atwater?

A. It was some time subsequent to my conversation with Mr.

R. M. Atwater, Mr. R. M. Atwater then not being in Butte.

X Q. 134. I ask you when it was,

A. I have no definite memory when it was.

X Q. 135. It was prior to the contract of July 22nd, 1911,

wasn't it?

A. It was.

X Q. 136. Had you any contractual relations of any kind, sort or

description with the Butte & Superior Copper Company prior to the

contract of July 22nd, 1911?

A. Yes.

X Q. 137. What previous or other contract had you had with

them?

A. I had an agreement with them by which I would make an in-

vestigation, for actual expenses, and report to them what probable

recovery could be obtained from their ore.

3981 X Q. 138. When did you make that contract?

A. I have no definite memory, but it must have been in

May, I should say, probably.

X Q. 139. How long did that take you?

A. That took me some week or ten days’ time.

X Q. 140. And you were paid your actual expenses during that

time?

A. And nothing more.

X Q. 141. And that was all through before June, was it?

A. It was.

X Q. 142. And after that did you have conversations with Mr.

Max Atwater about your entering into some other contractual rela-

tion with the company?

A. I have no memory of entering into any conversation with him

in regard to any other contractual relation with the company than

what is set forth in this contract in evidence.

X Q. 148. Conversations are not set forth in that contract.

Mr. Garrison: Read the question.

Mr. Kremer: I object. This is not a proper question. It is not

a question at all.

The Court: I think that the former question was fairly answered.

X Q. 144. I understood you that you had some sort of contract

a

BUTTE & SUPR, MNG. CO. VS. MIN, SEP., LTD., ET AL. 2233

with the company that you were to receive your actual expenses

while you made some investigations in the month of May, 1911; is

that correct?

A, It is,

BOS? X Q. 145. That took you about ten days?

A. That is ny present memory,

X Q. 146. And you were paid your actual expenses for those ten

days’

A. My actual expenses,

X Q. 147. Did you after that time have conversations with Mr.

Max Atwater about entering into sume other contractual relation

with the company. This can Le answered, it seems to me, yes or no,

X Q. 148. You did?

A, Yes,

X Q. 149. Now, during that time did you take up with Mr. Max

Atwater the patent situation, the Minerals Separation patent situa-

tion?

A. I have no memory of going into it with him in any detail.

XQ. 150, Mr. Nutter was here representing Minerals Separation

Company and trying to get the Butte & Superior to enter into a

contract with his company, wasn't he?

A. He was. I don't say that from anything more than the

knowledge of what Mr, Nutter told me, that he was.

Mr. Kremer: We move to strike out the answer as improper, not

heing from any knowledge of the witness, and being mere hearsay.

The Court: [t may be stricken.

XQ. 151. Did you or did you not know that Minerals Separation

Company was trying to get the Butte & Superior Company

3983 to take a license from it at that time; did you or did you not

know at that time?

A. I had not any definite knowledge in the matter.

X Q. 152. Did you have some indefinite knowledge?

Mr, Kremer: That is objected to as argumentative. If he has

no definite knowledge he can have no knowledge.

The Court: Well, I granted the motion to strike that, but if it is

merely to bring home to this witness the fact that he had ‘nformation

that negotiations were pending, I think it is proper and the objection

will be overruled.

Mr. Kremer: I will take an exception, if the court please. I de-

sire to make the further objection that the question is argumentative,

and does not convey to the witness anything which he could answer.

Who is going to judge whether his knowledge is definite or indefinite?

Mr. Garrison: The witness,

The Court: He may answer.

Defendant excepted.

The Court: He left the inference that he had such knowledge,

when he qualified his former answer.

—_—— ane . dm

2254 BUTTE & SUPR, MNG, CO, V8. MIN, SEP., LTD,, ET AL

X Q. 153. Did you have any indefinite knowledge?

A, I did.

X Q. 154. You knew Mr. Nutter?

X Q. 155. You met him there?

A. We lunched together and talked over a good many

3984 matters,

X Q. 156. You knew he represented the Minerals Separa-

tion Company, Limited?

A. I did know that, yes, sir, f

X Q. 157. Then, as a matter of fact, based on such facts as we

commonly base our every-day transactions on in life, you knew he

was here trying to get that business, didn’t you”

Mr. Kremer: That is objected to as argumentative, interpolating

the matter about what we base our every-day actions in life on.

Objection overruled.

A. The basis of my knowledge was that Mr. Nutter asked me what

he should do under the circumstances,

X Q. 158. And you knew in a general way that he was here trying

to get them to enter into a contract with his company, didn’t you”

X Q. 159. Now, you disclosed to somebody representing the Butte

& Superior that there were these patents in the offing, didn’t you?

A. I have no definite memory as to what was said on that matter.

I know that the subject was mentioned. |

X Q. 160. And of course you mentioned it, didn’t you?

A. I believe that Mr. R. M. Atwater first mentioned the subject

to me, and told me that he had received information in New York

that the patents were invalid.

3985 X Q. 161. You talked over with him whether they were

valid or not, didn’t you” f

A. I did.

X Q. 162. And you talked it over with Mr. Kremer, didn’t you?

A. I have no memory of talking it over with Mr. Kremer. I met

Mr. Kremer only in the matter of making this contract,

X Q. 163. You never met Mr. Kremer until you met him in con-

nection with that contract’

A. That is my memory. )

X Q. 164. And up to that time had there been any other local

counsel or attorney of the Butte & Superior with whom you had

come in contact? |

A. None. |

X Q. 165. Was the firm of which Mr. Kremer is a member the

only local counsel of the Butte & Superior with whom you ever

came in contact?

A. It was.

X Q. 166. Now, to your knowledge did not the company refer

the matter of the patent phase of this situation to Mr. Kremer?

A. I have no memory in the matter whatsoever.

or we Fn ae ——

— |

BUTTE & SUPR, MNG, CO, VS, MIN, SEP., LTD., ET AL. 2235

X Q. 167. And you never did have any knowledge to that effect?

A. I never did,

X Q. 168. And you never had any knowledge that Mr. Kremer

had referred the matter to a firm of prominent patent lawyers,

did you?

3986 A. I never did.

X Q. 169. And he never told you who they were, did he?

A. I do not remember that he ever told me that he had referred

any matter to any firm.

X Q 170. Did he ever tell you whether he had reached any con-

clusion as to whether there was any danger of litigation from Min-

erals Separation if they used this process?

A. I have no memory that he ever did.

XQ. 171. Don’t you remember that he never did?

A. No, I cannot say that I remember that he never did.

X Q. 172. What is the state of your memory about that?

A. It is simply that I remember nothing in regard to the matter.

X Q. 173. Is that your signature?

A. It appears to be.

X Q. 174. Well, is it?

A. Well, all that T can say is that it appears to be.

XQ. 175. That is the best that you ean say after looking at it?

A. I think it is my signature.

X Q. 176. Have you any doubt about it?

A. No, I have not.

= Q. 177. Why don’t you say frankly that it is your signature,

then?

Mr. Sheridan: I object to this attempt to bluff the witness, if

the court please.

3987 Mr. Kremer: He can’t bluff him.

The Court: No, I don’t think it is bluffing. If the witness

~ confronted with his signature he ought to know whether it is

is or not.

A. I have no doubt that it is my signature.

Mr. Garrison: I offer this in evidence.

Mr. Kremer: We object to it as incompetent, irrelevant and im-

material and tending to prove no issue in this case and in no wise

binding upon this defendant. This is a letter written by Mr. Hyde

to Mr. W. A. Clark, Jr. It is not binding on the defendant.

The Court: It is in connection with his testimony as to what he

was doing at the time. The objection will be overruled.

Defendant excepted.

Letter referred to admitted in evidence marked Plaintiff’s Ex-

hibit No. 233.

X Q. 178. After you had talked to Mr. Max Atwater, after these

preliminaries in May had been disposed of, did you and he reach

an understanding?

A. The understanding which

140—Ree.

— TET RT RN EN IRE, oe ORR PAR RTE ye te EN OLIN. AAP LAG EOF AE POR MIE CRE

ae

9236 HUTTE 4 OUPK, MNG, CO, V8. MIN, SEF., LTD, RT AL.

X Q 179. Anewer my question yee or no; did you and he reach

an un anding’ Now, you either did or you didn't,

A, We di ,

X Q 180. And in the course of thore conversations with Mr. At-

water did you suggest to him that if suite were brought in

3988 connection with the introduction of thie flotation proces,

that the company must take care of them’

A. | have no memory in regard to that, other than what I testified

to on direct examination, that it has been in my mind that I told

him that if the company were sued—I had no thought at the time

of anybody but the company being sued—that if the company were

sued that they would naturally have to defend themeeclves

X Q IS]. Naturally, 1 wae not to be expected that you would

finance the company, was it, that was not expected by you or by

them?

A, There was no expectation in the matter

X @ 182. Now, the thing that you really were talking about wae

in case *Uit Was brought against you, waen't it’

A, It wae not, no, Tt wae an utter surprice to me when the suit

was brought against me personally.

Mr. Garrison: | object to this being « surprice to hin

Mr. Kremer: He asked him what he thought,

Mr, Garrison: No, I didn't.

The Court: Wait a minute; repeat the question and the anewer

The anewer may be stricken out, after the words “it wae not.”

X @ 185. Do you mean to say that you and Mr. Atwater, or vou

and Captain Wolvin, if you ever had any conversation, did not talk

about What would happen if suit were brought against vou’

A. I have no memory of that matter ever being brought up

3989 XQ. 184. Then the undertanding vou hed of it with them

war that if these threat« of litigation were made good, that

they would have to take charge of it and pay for the expenses thereof,

is that right’

A. If they were sued,

X @ 185, Now, that vou talked over with Mr. Atwater, did you’

A. | have no definite memory about the matter.

X @. 186. Don't vou remensber getting Mr. Atwood to write a letter

stating that that wae what vou insisted upon, and that vou would

not enter into any contract until that wae understood’

A. | really have no memory of any euch letter.

X Q. 187, Well, do vou remember that vou had a thorough under.

standing about that before you would enter into any other contract

with them, don't you”

A. No, T don't remember that,

X Q. 188, Well, do you have any memory at all of ever having

talked this over with anybody’

A. My memory ie what T have «tated it to be, that the matter was

discu#ed, and that a far ae | have any memory at all, it was en-

tirely upon the basis that if they-——

a — |

_—

XQ 180, F did not ack you that; 1 ask you if you do remember

talking it over with somebody, and you say you do.

\. | remember the «uly maseng boas mentioned.

XQ. 190. Who do you remember having mentioned it with®

A. 1 discussed thie matter—I mean my whole relation.

ow ay Ay discussed, as far ax | remember, only with Mr.

Kt. M. Atwater or Mr. Maxwell Atwater.

\Q. 191, Then you did talk it over with one of them—one or the

BUTTE 4 SUPR, MNO. CO. V8. MIN. SEF., LTD. ET AL. 2237

other of those two gentlemen ’

AL t ae it war mentioned to one or the other,

XQ. 192. And was it one or the other of the gentlemen to whom

you conveyed the information that if suit was brought agsine the

company, as you say, that they must pay the expenses of t?

A. | have ne definite memory in the matter outside of that I have

a feeling that there was such a conversation.

X a. 144, And you have stated that in that conversation you aid

that if suit was brought against the company that they would have to

lear the expense thereof; that is what you have aid”

A. I think vou misquote me,

x & 1. Well, I won't misquote you. What did you my?

A. Tay that I have a hazy memory that the subject was diccumed,

aml inv memory is that it was a subject of discussion ae I have ex.

it.

XQ. 105, Now, is that the only conversation that you ever had

with anyboly representing the Butte & Superior Company about the

payment of the expenses of litigation’

A. No, there ix the one which led to the agreement that on the ax

signinent of my patent rights they would assume the expense of the

litigation,

XQ. 196. And about when was that’

wwe A. t War some time in October, The exact date is, ax I

. remember, that of one of the letters which ie here ae an ex-

tbat. .

Xq. “th October of what year’

A. 1911,

XQ. 195, Immediately after the «uit was brought, or before?

A. I think that it was about one week after the «uit was brought.

te 100, And who did you have that understanding or agreement

with’

A. With Captain Wolvin, the then president of the company.

X Q. 200, You had not applied for any patents at that time. had

you’

A. It war——

XQ. 201, No, no, answer my question.

A. I don't remember the date of my application for patent.

X Q. 202. Well, let us get the date of your application for patent.

I show vou the official records of the Hyde suit. Is this the patent

about which you have been speaking, No, 1,022,085"

A. It ia,

XQ. 203, That has a legend en it, “Application filed November

10th, 1911,” hasn't it?

2238 BUTTE 4 SUPR. MNG. CO. VS. MIN. SEP., LTD, ET AL.

A. Tt has.

XQ. 204. Now, that ix the patent that you agreed with Captain

Wolvin in 1011 that you would a«ign him an interest in, ix it’

sw A. it ix.

X Q. 205, The egg had not been laid, much lee the chicken

hatched, at that time, had it’

A. The process was in operation——

Mr. Kremer: | move to «trike that expression about the egg; |

don't think that is proper.

Mr. Garrison: I will strike it out myself. It ix a little too obvious

to need stating.

X Q. 206. Who else was present when you had this conversation

with Captain Wolvin’

A. I had two conversations with Captain Wolvin on this subject,

The ‘iret one was in the office of the Butte & Superior Company, and

there were present one or more—I think either two or three of tie

then directors of the company, who were present from Duluth.

th 207. You knew, when you installed of started to install, or

sta to make available for the benefit of the Butte & Superior the

knowledge that you had of flotation, that a patent suit would be

brought by Minerals Separation against somebody or other to try to

stop that, didn't you’?

A. That was an impossibility, my having «ach definite knowledge.

X Q. 208, I call your attention to page 5S of the book that vou

have there in your lap, which ie Plaintiff's Exhibit No. 8, a letter

written by you to the president of the company, Mr. MacKelvie,

under date July Mth, 1913. You did not have any hesitancy

there—to show what a positive state of knowledge you had.

3003) «=You aid “The fact that a suit would result from proceeding

to use a flotation proces was known to all concerned.”

Weren't you one of the persons concerned ’

A. 1 was.

X Q. 200. Then you knew it, didn't you’

A. I did not know it in the sense that I could swear to it in a court

of law.

XQ. 210, Oh, I see you draw a distinction there———

Whereupon further hearing was adjourned until Monday, May

7th, at 10 a. m.

Monday, May 7, 1917—10 a. m.

Jaues Macvosato Hyper resumed the stand for further

Cros-examination -

The Witness: If your honor please, if it is permissible | would

like to correct my testimony in a few places where I see | was in

error on Saturday, in testifying from memory with regard to things

six years ago. Page 1929, question 54, in answer with regare to the

employment of Mr. Kremer as counsel, I find that 1 was mistaken

;

-

— |

-

BUTTE 4 SUPR, MNG. CO. VS. MIN. SEP, LTD., ET AL. 2239

as to the date, that it was some time preceding August 18, about the

tiddle, some time preceding the middle of August.

Mr. Garrixon:

NQ. 211. What year’

A. TULL, On page 10 and going on to page 150 my answer

ty question 167 should have been: “I have no memory in the

matter whatsoever,”

Sh Mr. Garrison:

NQ. 212, You swid here, “I have knowledge in the matter.”

A. TL should have sid “T have no memory in the matter.” The

next question T said | never did, where | should have said “I don’t

remember having had any knowledge of the matter.” The nevt

question T said T never did where | should have said “I don't re-

member of having-——

Mr. Garrison: | don't understand that this is correcting his testi-

mony,

The Court: I think so,

Mr. Garrison: He says in answer to a question, that he never did,

Now he says he should have answered it another way,

The Court: 1 think he has a right to say he made a mistake,

Mr. Garrison: | thought he was merely correcting his English.

The Witness: No, | meant to sy T made a mistake, 168, where

I wid I never did, | should have said “I don't remember of having

had anv such knowledge, 160 T sav, “He never told me that he had

referred any matter to any firm.” I should have said “I don't

remember that he ever told me that he had referred any matter to

any firm,

Mr. Garrison :

XQ. 218. Is that all’

A. Yes, sir,

The Court: You may proceed with the crossexamination,

XQ. 214. I don't think that you have stated your residence and

occupation, Will you please do so’

sn A. My present residence is Palo Alto, California, and I am

a mining engineer.

XQ. 215, And did you come here upon this occasion, the occasion

of this trial, of your own impulse, or were you requested to come?

A. I received a telegram requesting me to come,

x ngs Someone representing the defendant?

A. Yea,

rep And how long have you been here?

A. I think T got here at the end of the first week of the trial. I

don't remember the date.

X Q. 218. You have been here for two or three weeks?

A. Yes.

2240 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

X Q. 219. When was the experimental plant at Basin finished?

A. I think it was in June.

X Q. 220. The experimental plant?

A. Either June or July.

X Q. 221. Well, if that is so, I will have to clarify my memory

and your own testimony respecting the preceding events. Is it cor-

rec! that your first contractual arrangements with the Butte & Su-

perior were some time in May of 1911 when you made some tests

of their ore to see what results you could get from that”

A. That is as I remember it.

X Q. 222. And that was all done in the month of May?

A. As I remember it.

3996 X Q. 223. And your understanding was that if, upon your

report of the results of these tests, they chose to make a

proposition to you, you would say yes or no to their proposition?

A. That was the understanding.

X Q. 224. And that proposition is what is contained in the con-

tract of July 22nd, 1911?

A. If that is the date of it, it is possible that the events took place

in June rather than in May.

X Q. 225. That what events took place in June rather than in

May?

A. The testing of the machinery upon which—TI mean the testing

of the ore upon which the original report was made.

X Q. 226. Well, now, I want to get that out of the way; that is

done and ended?

A. All right.

X Q. 227. And as a result of that they made you a proposition

which was represented in the contract of July 22nd, 1911, isn’t

that correct?

A. That is correct.

X Q. 228. Therefore your second employment was—or if you

don’t like the word “employment” your second contractual relations

with the Butte & Superior dated from the written contract, did it not?

A. That is true.

X Q. 229. And that written contract is dated July 22nd, 1911,

is that correct?

A. Yes.

X Q. 230. Now, when was the experimental plant built

3997 under the contract of July 22nd, 1911, finished?

A. My memory of the matter has been that this took place

in the month of June and July; it may be that that contract was

not signed—and I think that that is the case—that it was not signed

by Captain Wolvin until after the agreement had practically been

made—I mean an understanding had been entered into between

myself and Mr. Atwater.

X Q. 231. Precisely. That is the fact, isn’t it, that what you

really did was to have an understanding with Mr. Atwater, and you

and he acted on that understanding, and it was not until afterwards

that any written paper was made by you at all; isn’t that the fact?

A. As IT remember it, it is.

EDIE SOT pe

——

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2241

Mr. Kremer: Then you may explain.

Mr. Garrison: Wait a minute. The court will say whether he

may explain or not.

Mr. Kremer: Then I will ask the court if he may not explain.

The Court: Read the question and answer—I do not see that any

explanation is needed, The answer is a full answer to the question.

When you come to re-examine him you may bring out any cireum-

stances that tend to break the force of that answer if you desire.

X Q. 232. Now. Mr. Hyde, in confirmation of that fact, please

refer to the book of exhibits that you have in your lap?

A. I haven't the book of exhibits with me; I think I left it in

my room.

3998 X Q. 233. Well, we will try and get you a copy. That is

exhibit 166, page 82?

A. I have it.

X Q. 234. You observe that that is a voucher receipted by you

for your expense account for July, 1911, at five dollars a day, for

31 days, do you not?

A. I do.

X Q. 235. So that it is quite obvious from that exhibit and from

what vou have now testified to that vou were working under a verbal

understanding with Mr. Atwater for many days before the date of

any written contract; isn’t that true?

A. It is true that it was before this written contract here, but I

believe there was a written understanding between Mr. Atwater and

myself, that he had received word from Captain Wolvin that he

would sign at the proper time, or when the matter was submitted

to him in final form, this agreement.

X Q. 236. In other words, as I understand you now, you and

Mr. Atwater reached an understanding; that this was the first thing

that was done, wasn’t it?

A. He submitted

X Q. 257. Wait a minute; if IT am wrong say no. Read the

question,

A. We reached an understanding.

X Q. 238. Then Mr. Atwater communicated with his principals,

whoever they were ; that is correct, isn’t it, or he told you he had?

A. I believe he did.

X Q. 239. And he told you that you and he would go

3999 ahead under your verbal understanding, isn’t that correct?

A. I think that that is correct.

X Q. 240. Now, when was that experimental machine, thus being

fixed up, actually completed and work done on it?

A. I haven't a definite memory as to that matter.

X Q. 241. Well, it was about the first of August, wasn’t it?

A. My memory was that it was earlier than that.

X Q. 242. At or about the first of August then?

A. At or about, yes.

X Q. 248. And you made the runs on it, to demonstrate whether

or not it would produce the results, did you not?

2242 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

A. I did.

X Q. 244. And those runs were successful enough to induce the

company to go on with the rest of the understanding about the

larger plant?

A. They were.

X Q. 245. Now, under your contract, the sums of money that

you received—this sum of $5.00 a day, was to be paid you while

engaged in mill work in said company’s behalf; that is true, is

it not?

A. Yes.

X Q. 246. So that as long as we have vouchers showing $5.00 a

day paid to you, you were engaged in mill work in the company’s

behalf, were you not?

A. Well, I don’t know what technical significance there

4000 would be in the statement in that way; I was working under

the agreement as shown here.

X Q. 247. You have had opportunity to, and I assume during

the two or three weeks you have been here vou have looked over

these vouchers, have you not?

A. I have simply gone over them to see that they were vouchers

for expenses.

X Q. 248. Well, but you were informed that you were to go on

the stand here and testify to vour connection with respect to these

matters, were you not?

A. I was.

X Q. 249. And you had it back and forth between here and your

lodging place, day in and day out?

A. I think it has been in my lodging place most of the time, yes.

X Q. 250. So you have looked it over?

A. I have, ves.

X Q. 251. So you knew, for the complete month of July, 1911,

you received your $5.00 a day, didn’t you”

A. I received that expense money.

Mr. Garrison: Now, I ask to have everything stricken out after

the word ves or no, as to that.

The Court: Well, it is another form of answering the question.

Answer it more directly.

A. I did receive that amount.

X Q. 252. Yes, and you received a similar amount for the month

of August, 7 - the full month, did you not?

A. id.

4001 XQ. 253. And for the full month of September, 1911,

did you not?

A. As I remember it.

XQ. 254. And up to the 26th of October, 1911, did you not?

A. I don’t remember the exact date, but it was some such time.

XQ. 255. Well, the vouchers will show. Don’t let us have any

doubt as to these things. It is on the voucher.

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2245

The Court: Any time you desire to refresh your memory from

them, you may do so.

Mr. Garrison:

X Q. 256. If you will look on page 88, Exhibit 172, you will see

the expense account for October, 1911, 26 days at $5.00 a day,

$130.00. Now, if you want to look at the one for September, it is

on page 86 and is exhibit 170. That is for 30 days of September, is

it not?

A. Expense account at $5.00 per day.

X Q. 257. So that we find from these exhibits that you received

your $5.00 a day for July, August, September and 26 days of Oc-

tober? Is that correct? .

A. That is correct.

X Q. 258. And it was, I suppose on the 26th day of October, that

you and Mr. Kremer left for Chicago, was it not?

A. I haven't any definite memory as to the date. It was about

that time.

X Q. 259. Now, did you ever receive any money from the Butte

& Superior, leaving out these early experiments, these days

4002 that you received your actual expenses, not your $5.00 a day,

excepting moneys paid in accordance with the terms of the

written contract?

A. I received the actual expenses of my traveling when engaged

in the patent suit and in such visits as 1 made to the Butte plant

after Oetcber 26th.

X Q. 260. So that, with the exception of what you have just

stated, the moneys that you received from the Butte & Superior Com-

pany were moneys that were paid to you under the terms of this

written contract? Is that correct?

A. Or the supplemental agreement.

X Q. 261. Or the supplemental agreement, ves; I should have in-

cluded that. And all moneys paid to you under this contract ex-

cepting the $5.00 a day were for your services?

A. The $5.00 a day under the contract as well.

X Q. 262. Read my question. I didn’t say they were not.

(Question read.)

Mr. Garrison:

X Q. 263. And the $5.00, if you wish?

A. And the $5.00 a day.

X Q. 264. And all the moneys that were paid to you including

the $5.00 a day were paid to you for your services? Is that correct?

A. Services and expenses.

X Q. 265. And with respect to your patent, the number of which

has been several times stated during your testimony, will you please

give me the names of the other licensees in the United States

4003 outside of the Butte & Superior?

A. There are no other licensees at the present time.

2244 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

X Q. 266. Now, you have told us that you had a conversation with

Captain Wolvin in October, 1911, in which you and he agreed on

this matter of the expenses. Where was that conversation ?

A. There were two conversations. The one which I referred to

the other day, being the first of the two, was in the office of the

Butte & Superior Company at the mine.

X Q. 267. And in your direct testimony you stated that that con-

versation was had after you were sued for infringement? So it was

some time after October 3d, 1911; is that correct?

A. Yes, sir.

X Q. 268. And was that the first time that you and Captain

Wolvin or you and anybody else on behalf of the Butte & Superior

Company, had talked over the matter of the defense of any lawsuit

to be brought against you?

A. I can’t say that it was.

X Q. 269. Search your memory and tell me whether it was or not.

. A. I have no definite memory of any conversation with regard to

the matter, but I doubt not that they occurred.

X Q. 270. Do you doubt that they occurred before this?

A. They must have occurred before that. 1 don’t remem-

4004 ber the date upon which service was made upon me.

X Q. 271. Well, the bill was filed on the 3d day of Oc-

tober, 1911. Now, then, you were not served until after the bill was

filed, or on the same day, we will say, and so we will fix October 5d

as the first day vou could have been served. Now, did you have any

conversation with Captain Wolvin about the payment of expenses

of lawsuits prior to the 3d day of October, 1911?

A. I have no definite memory with regard to any. | saw Captain

Wolvir. very few times.

X Q. 272. In your examination on Saturday you were asked

whether you had not had conversation concerning the payment of

expenses and taking charge, etc., of lawsuits against vou, and you

said that the first time that you had any such conversation was the

one that you had with Captain Wolvin after the Hyde suit was

brought. Now do you wish to correct that?

A. I have no definite memory in the matter whatsoever.

X Q. 273. Have you any less definite memory today than you

had on Saturday?

A. No. If I made the definite statement that I never had had

such conversation I may have been in error.

X Q. 274. Well, now tell us what this conversation was that you

did have with Captain Wolvin in October of 1911 at the office of the

Butte & Superior Company.

4005 A. The conversation was upon the date on which the sup-

plemental agreement was entered into; and the main reason

for the conference was the entering into that supplementary agree-

ment.

X Q. 275. Well, now, we will get that date immediately. That

was the 26th day of October, 1911.

A. There is a record in that agreement that a certain payment

had been made to me that day, payment under the contract or under

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2245

this modified contract, and, in the course of the conversation which

took place between us I remember of asking Captain Wolvin: “Well,

now, What are we going to do about the expenses of this lawsuit which

has been brought against me personally?” And he made the reply

that if I would agree not to compete with the company in acquiring

or operating properties in the Butte district, and would give the

company an exclusive license to the Butte district of any rights that

I might acquire if I obtained a patent upon the process which | had

developed and which I told them had certain novel features, that

they would bear the expenses of the litigation.

X Q. 276. Now, then, had you had any understanding or agree-

ment with anybody on behalf of the Butte & Superior prior to that

time concerning the payment of expenses of lawsuits brought

against you? ;

A. As I said before, I have no definite memory of having had

such.

X Q. 277. In your examination on Saturday you stated that you

had not had such conversation because it had not occurred

4006 to you that you would be sued or could be sued.

A. I was mistaken in that statement and my memory—as

I have thought the matter over | remember that there was a definite

statement made to me that I probably would be sued.

X Q. 278. And when was that definite statement made to you

that you probably would be sued ?

A. I don’t remember whether that statement was made by Mr.

Nutter or Mr. Spitzer. Both of them had been here in Butte and

had conversation with me on the matter. It would be preceding—

it would be preceding the actual filing of the suit.

X Q. 279. And you stated in some corrections that you made this

morning that you had been to see Mr. Kremer before August 18,

1911; is that correct?

A. That is correct.

X Q. 280. How did you get that date of August 18, 1911?

A. I asked Mr. Kremer this morning and he said that he re-

membered that it was previous to that date.

X Q. 281. He showed you a letter, didn’t he?

A. He did.

X Q. 282. Showed you a letter from Mr. Williams, didn’t he?

A. He did.

X Q. 283. So that it was known by Mr. Kremer as early as August

18 that you were to be sued, and he wrote to Mr. Williams that he

was the attorney engaged to defend you, did he not?

4007 A. He did.

X Q. 284. So that, as a matter of fact vou had gone and

retained Mr. Kremer’s services as carly as August 18, 1911?

A. That is why I corrected my answer with regard to the date,

this morning.

X Q. 285. And you did not correct that answer until Mr. Kremer

jr — you correspondence between Mr. Williams and himself,

did he? :

A. Because I had no memory of its being at so early a date.

tre er ees ee PYRE eg ee TENGE Une ET ett aS i bce an Da

2246 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

X Q. 286. But you had a very distinct memory that you had not

gone to see Mr. Kremer until after you were sued, did you not?

A. I did.

X Q. 287. And that you had a very clear picture in your mind

which you conveyed to us of walking into his office and telling him

you had been sued and asking him whether he was in a position to

defend you, as if it was the sole case in his office, and all of that

you told us, did you not”

A. All of this was true of the occasion when I did go to see him

and retained him.

X Q. 288. Yes, but you recited this conversation with dramatic

certainty, after you were sued, did you not, you stated that you went

down there after you were sued. You were mistaken about that,

were you?

The Court: You are qualifying the witness.

Mr. Garrison: I will withdraw that question. I think it is ob-

jectionable.

4008 X Q. 289. You had a very clear memory on Saturday of

going down to Mr. Kremer’s office after you had been sued

and having this conversation about his qualifications to take your

case ; isn’t that correct?

A. That is exactly the way in which I remembered it.

X Q. 290. Now, what was the occasion of your going and engaging

Mr. Kremer’s services in August, 1911?

A. I don’t remember definitely, but I take it for granted that it

— result of having been informed that I would be liable to be

sued.

X Q. 291. At that time you expected to have to bear all the ex-

pense of that suit, didn’t you?

A. I have no memory as to what I expected at that time.

X Q. 292. You had a very clear memory on Saturday that up

until the service of papers in the suit, it had never occurred to you

that you would be sued, and therefore that was the first time you

made any arrangements about the expenses of such a suit.

A. I corrected the record this morning, because I found that my

memory was not correct on Saturday.

X Q. 293. When you went to see Mr. Kremer did you ask him

what his retaining fee would be?

A. I don’t remember of having arranged the matter of the fee.

X Q. 294. Did you pay him any money?

A. I did not.

X Q. 295. Well, what did you do with Mr. Kremer at that

4009 time; did you give him the patents of Minerals Separation

on which they would be liable to base their suit?

A. I don’t know that I gave them to him at that time, but I am

very certain that I gave him a record of such patents relating to the

whole subject as I had been able to ascertain.

X Q. 296. At or about that time?

A. At or about that time.

trae es ae * : ‘a ’ <tt> “ 9947

BUTTE & SUPR, MNG, CO, VS, MIN. SEP., LTD., ET AL. ati

X Q. 297. Now, previous to this, and when you were in New York,

you had gone into this patent situation with Mr. Stone of Hayden,

Stone & Company, hadn’t you?

A. No, I never met Mr.——

Mr. Kremer: I object to that as incompetent, irrelevant and im-

material for any purpose and no connection with this suit whatever.

The Court: It 1s cross examination.

Mr. Kremer: The record shows that at that time Hayden, Stone

& Company had nothing whatever to do with the company.

The Court: I think he may inquire, Objection overruled.

Defendant excepted.

A. I met no member of the firm of Hayden, Stone & Company

when | was in New York before coming to Butte.

X Q. 208. Had you ever gone over this patent situation before

you went over it with Mr. Kremer?

4010 A. Why, I had gone over it in my personal study of the

matter, [ don’t know whether I had with anybody else.

X Q. 299. Had you seen any attorneys about it?

A. No, I had not.

XQ. 800. Didn't you tell Mr. Nutter that you had seen an attor-

ney about it?

A. T have no memory of telling Mr, Nutter that I had. It is——

X Q. 301. Go on and make your explanation?

A. I went over the whole details of this thing when T was in Lon-

don, and as Mr. Herbert Hoover testified in the Hyde case——

Mr. Garrison: This is certainly not in response.

The Court: Read the question.

(Question read.)

The Court: Answer that question.

A. [don’t remember ever having told him so.

X Q. 302. Now, then, after you had gone and engaged Mr. Kre-

mer’s services in August of 1911, you did go over the patent phase

of the matter with him, didn’t you?

A, I did.

X Q. 303. And he referred the matter to Sheridan, Scott, Wilkin-

son & Richmond, or whatever the name of the firm was at that time?

A. I think that is correct.

X Q. 304. And he informed you that he had done so, did he

not?

4011 A. I presume that he did.

X Q. 305. And you wrote Mr. Clark the letter which I

showed you the other day, in which you conveyed that information

to Mr. Clark?

A. I did.

X Q. 306. Then you were entirely wrong in your testimony on

Saturday concerning that matter?

A. I was.

2248 BUTTE & SUPR. MNG, CO, VS. MIN. SEP,, LTD, ET AL.

X Q. 307. Now, you knew that a suit of this character would cost

a very great deal of money, didn’t you?

A. I knew nothing about what the cost would be, but I expected it

would be great.

X Q. 308. What is that?

A. I had no definite knowledge of what such costs might be, but I

expected they would be large.

X Q. 309. Your own guess was that it would be more than thirty

thousand dollars, wasn’t it?

A. I took it for granted that it would be.

X Q. 310. More than thirty thousand dollars?

A. Yes.

X Q. 311. Now, did you have any thirty thousand dollars to

spend in a lawsuit to get the privilege to the Butte & Superior Mining

Company to operate without payment of royalty to Minerals Sepa-

ration?

A. I did not.

X Q. 312. And in your view—your expressed view—it was utterly

unreasonable to expect you to do that, to defend this suit, in order to

get them that privilege; isn’t that correct?

4012 A. If IT had not been able to make the arrangements with

them, I would have had to retire from the field.

X Q. 318. Answer the question please.

(Last question read.)

A. It was.

X Q. 314. Now, then, at the time that you had entered into ar-

rangements with them in June or July, whenever it was, you talked

over this whole question of suits on behalf of Minerals Separation to

obtain injunctions to prevent the use of their process, didn’t you?

A. I have no definite memory as to what the conversation went

into but I know that the matter was discussed.

X Q. 315. Now, let me help your memory. In exhibit No. 8,

page 38 of the book of exhibits, that being a letter from you to Mr.

MacKelvie, dated July 13th, 1913, you wrote as follows: “The fact

that a patent suit would result from proceeding to use the flotation

process was known to all concerned, and the three attorneys upon

the old board of directors should have been able to anticipate what

the suit would amount to in the way of costs. Our relations were in

no way modified by the fact that suit was brought in my name. Its

object is to enjoin your company from the use of the process and to

compel it to pay a royalty, and is brought against me solely for the

performance of acts carried on for your company.” Now; all that,

you say, was known at the time that you began talking to

4013 these people about selling them whatever information you

had concerning flotation processes, wasn’t it?

A. It was understood that there would probably be a suit.

X Q. 316. And it was understood that the company should pay

the expenses of that suit, wasn’t it?

BUTTE & SUPK, MNG, CO, VS. MIN, SEP., LTD., ET AL. 2249

A. I don’t remember the definite—I mean the absolute definite

nature of the understanding in the matter.

X Q. 317. Well, you are drawing some fine line of distinction,

aren't you, between whether a thing was stated in certain language or

stated in certain other language, isn’t that right?

A. No, I am stating the actual condition of my memory, that I

don't remember the details.

X Q. 318. I don’t ask you for details; I ask you whether, in view

of what you have testified here and written here, there was not an

understanding—without regard te the express language of that

understanding—that if a lawsuit was brought by Minerals Separation

Company to prevent the carrying on of this operation at the Butte

& Superior mill, that they would have to bear the brunt of that suit;

wasn't that your understanding?

A. As expressed in this letter, it is.

XQ. 319. No, but as your understanding at the time; was that

your understanding after you had these conversations with these

gentlemen ?

A. I don’t see that 1 can add anything to my previous an-

swers,

4014 X Q. 320. It is because T don’t understand you. In this

letter of July 13th, 1913, as I understand you now, you were

conveying to Mr. MacKelvie what the understanding was at the

time you entered into this arrangement, weren’t you; isn’t that cor-

rect?

A. That is what T understood, that they realized what the cirecum-

stances would bring forth.

X Q. 321. Exactly; that if a suit was brought that they would

have to stand for that suit?

A. I don’t remember of there being any definite understanding

as to what would happen if a suit were brought against me person-

ally.

X Q. 322. But the situation was this, wasn’t it, that you all knew

that a suit would be brought to try to prevent the Butte & Superior

Mining Company operating a flotation process claimed to an

infringement of the M. 8.?

\. We all knew that there were threats that that would be done.

X Q. 323. And the understanding that you had was that if that

was done the company would have to take charge of any such suit;

that you were not going to stand the expenses of such suit?

A. I think they understood that I could not stand the expenses.

X Q. 324. And it was understood that they would; isn’t that cor-

rect?

A. I don’t remember how far the agreement went as to what they

would stand or would not stand, because there was no agreement

between the company and myself at any time that they would

4015 fight a suit rather than pay royalty.

X Q. 325. But if they elected to fight a suit they were to

stand the brunt of that, weren’t they?

A. Certainly.

2250 HUTTE 4 SUPR, MNG, CO, V8. MIN. SEP., LTD, ET AL.

Redirect examination,

By Mr, Kremer:

R. Q, 826, Mr, Hyde, referring to the exhibit that Judge Garrison

just interrogated you with reference to, wherein you referred to a

suit, T will ask you if it is not a fact that you had heard previous

to August, 1911, that suit would be brought against the Butte &

Superior, and state from whom you heard those threats’

A. 1 heard those threats from E. H, Nuttr, and from a Mr,

Spitzer, who, | understood, was connected with the firm of Beer

Sondheimer & Company.

R. Q, 827, Did you ever have an understanding prior to that

understanding that you have referred to in your testimony as having

been made with reference to the defense of the so-called Hyde Suit—

did you ever have an understanding with the Butte & Superior that

they would defend the suit if you were sued’

Mr. Garrison: | object to the form of the question,

The Court; Yes,

(Question withdrawn, )

4016 Mr. Kremer:

R. Q. 828. Did you ever have an understanding with the

Butte & Superior Company that they would defend a suit brought

against you, prior to the understanding that you have testified that

you had with Captain Wolvin’?

Mr, Garrison: | object to the form of that question,

The Court; Objection sustained,

Defendant excepted.

R. Q. 820, Pid you ever have any other understanding with the

Butte & Superior with reference to the defense of a so-called suit,

‘han the one you have testified to’

Mr, Garrison: I object to that, if your honor please.

The Court: Objection overruled,

Plaintiff excepted.

A. | have no memory of any agreement of that sort.

_R. Q., 380, In answer to a question propounded by Judge Garri-

son you stated that you thought that the expense of defending this

suit brought against you, or a suit that might be brought, would ex-

ceed $30,000, Will you explain why you thought so, if you can, or

how much more than $30,000 you thought it would cost,

A. I had no definite basis upon which to judge as to what the cost

of such a suit would be, I had known of certain A tent litigation

going on, where expert witnesses had been retained, and so forth,

and knew that the expenses were very large.

4017 R. Q. 331. Did the expense of that suit have anything to

do with the figure mentioned in your contract with the Butte

& Superior?

_ ——

BUTTE 4 SUPR, MNG, CO. VS. MIN, SEP., LTD., RT AL. 2251

A. As stated in one of Mr. MacKelvie’s letters——

R. Q. 382. No, just answer the question, Mr. Hyde,

A. It did not,

(Witness excused, )

Mr. Kremer: We desire, at this time, if your honor please, to

offer a certificate from the acting commissioner of patents, accom-

panying a disclaimer or purported discle:mer, to the effect that no

other disclaimer had been filed in the patent office of the United

States, save and except the one thereto attached,

Paper admitted in evidence without objection and marked De-

fendant’s Exhibit,

The Court: Is it the same disclaimer referred to’

Mr. Kremer: Yes, sir,

The Court: It is utterly useless,

Mr. Kremer: The question is of a negative character, that a

search has been made,

Mr. Williams: We will stipulate that no other disclaimer las

gone in.

The Court: Well, it may go in. When the record is made up a

great deal of this will be cut down,

Certificate admitted in evidence and marked Defendant's Ex-

hibit No, 234.

4018 J.T. Suimain, Recalled, testified as follows:

Direct examination,

By Mr, Scott:

Q. 1. You have produced papers entitled “Butte & Superior Min-

ing Company’, one dated April 28th, and one dated April 29th

and one dated April 30th. Are the operations recorded in these

— he which were carried on under your supervision?

A. es

Q. 2. And to the best of your knowledge and belief they cor-

rectly represent the results of those operations and conditions under

— A were conducted?

. Yea.

Mr. Scott: I offer the papers in evidence, the same being the

records of the Butter & Superior Mining Company of mill operations

on April 28th, 29th and 30th, and we offer them as one exhitit,

Papers admitted in evidence and marked Defendant's Exhibit 235,

141—Ree.

2252 BUTTE 4 SUPR, MNG, CO, V8. MIN, SEP., LTD., BT AL,

Cross-examination.

By Mr. Williams:

X Q 3. These are the official reports from the records of the

ome of the proceedings of those three days, is that correct’?

A. Yes.

XQ. 4. On — 80th, the day that we were there, where did you

put the oil in’

4019 A. 1 think at the discharge of the tube mill; I am not

certain.

XQ. 5. You don't know’

A. Ll am not positive, no.

X Q. 6. On April 28th, the day before we were there, where did

you put the oil in’

A. The feed end of the tube mill.

X Q. 7. It was changed the morning we were there from the feed

end — tube mill to the discharge end of the tube mill?

A. es,

X Q. &. What are you doing now; feed end or discharge end’

- A. Well, in fact I don’t know; I think it ix going to the feed end.

X Q. & You have been doing that for a considerable time, have

you not, putting the oil in at the feed end of the mill’

A. Yes, we have.

xX %., 10. What kind of tube mills are thore which you have’

A. They are the regular—weil, they are four and a half by twenty,

Denver Engineering Works.

X Q. 11. Cylindrical’

A. Cylindrical mills, yes,

X Q. 12. Are they pebble mills or ball mills’?

A. The first 16 feet is pebble, and the balance is balls.

XQ. 15, In the same tube’

A. In the same tube, yes.

4020 xX g 14. The balls are of what material’

A. Manganoid.

X Q 15. Is that a manganese steel?

A. No, it is called manganoid; it is a ball made by the Jeffrey

Manufacturing Company.

xX 9 16. About what is its composition’?

A. I couldn't say »

X % 17. It is manganese and iron?

A. I think it is.

X 18. The name manganoid is just a trade name, isn't it?

A. Just a trade name.

( Witness excused )

Mr. Scott: That closes our case.

Mr. Williams: There were some particulars that Mr. Dosenbach

was to furnish. Hasn't he got them? He was to give an assay of

Mr.. Scott: We will ask the court if these assays may not be put

ee

BUTTE & SUPR, MNG, CO, V8. MIN, SEP., LTD., ET AL. 2253

in without delaying the matter any further. He didn’t have them

Saturday.

Mr. Williams: Have you got them, Mr. Dosenbach?

Mr. Dosenbach: I have an assay of the copper sulphate. I haven't

an assay of the molybdenite,

4021 Bex H. Dosexnacn, reealled for further

Direct examination,

By Mr. Scott:

Q. 1. You may state, Mr. Dosenbach, what the usay of the molyb-

denite ore was that you used in your experiments here in court.

A. 1 haven't got the correct assay yet but it is approximately what

I gave before; won't vary within several tenths of a per cent,

Q. 2. Exeuse me, I got the wrong one. Well, the sulphate?

A. TL have an analysis of the copper sulphate as far as I have it, it is

about 1.586 copper; about 3 silver; 3.68 sulphurie acid; 5.79

sodium chloride or salt, I haven't a determination of the iron or the

ferric or ferrous salts, This is under the general determination that

we make up there, and this is one analysis that I happen to have,

Mr. Williams: That is all.

Mr Scott; As to the aways of the samples that were taken from

these experiments I take it that you agree that they may go in evi-

dence ax soon as we have them’?

Mr. Williams: Yes, but Mr. Thomas Janney has not vet been ex-

cuséd as a witness, and T understood from him yesterday that he had

to go home because of illness end that he would leave with you cer:

tain information which | had asked him for, Have you that’

4022 Mr. Scott: I didn’t see him yesterday,

Mr. Dosenbach: As I understand, you requested for the

days the shifts, upon which certain experiments were run and he left

that with me so that I can now give it to you.

Mr. Williams: Well, if you will read it in the record, that will

be acceptable.

Mr. Dosenbach: The experiment No. 14 was run on the day shift

of April 6th, 1917; experiment No. 15 was run on the third shift or

the graveyard shift, April 5, 1917; experiment No. 16 was run on the

second shift of Apa Sth, 1917; experiment 28 was run on the third

shift of April 8th for the first 4 hours; experiment No, 29 was run

on the third shift of April 8th for the second four hours.

Mr. Williams: Experiment 30. Have you got that?

Mr. Dosenbach: That is all he gave me. No, I didn’t get any for

that, 14, 15, 16, 28 and 29 is the information that he gave me.

Mr. Williams: Now, Mr. Scott, there was an exhibition to our

representative of operations of one of the Utah plants and we took

specimens and the Utah representatives took specimens, 1 intended to

ask Mr, Tom Janney for the particulars of that day’s run. Can you

supply us with the actual reports of any particulars?

to

254 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

Mr. Scott: No, I don’t think I have the report. I can probably

get it by writing, if you will accept it in that form.

4023 Mr. Williams: I will accept Mr. Janney’s statements. I

will take Mr. Thomas Janney’s statements as the equivalent of

evidence.

Mr. Sheridan: Mr. Frank Janney was there.

Mr. Williams: You are right about that—-Mr. Frank Janney.

Mr. Sheridan: Well, we will wire down to Mr. Frank Janney an-l

get the data.

( Witness excused. )

Mr. Williams: Now, your honor, | would like to have a rather

distinet understanding as to the testimony of Prof. Taggart in rela-

tion to certain tests, followed by some testimony of Frank C. Janney.

The ruling of the court was that that testimony be stricken out. The

testimony was, of course, written at length by the stenographers in

the record. It is my understanding that your honor ordered it to be

bodily stricken from the record.

The Court: What is that?

Mr. Williams: The experiments made by Prof. Taggart, which

your honor struck out as hearsay, on May 2nd, and it appears in the

record commencing—Well, I have the details of it—It was an experi-

ment as to which the witness was wholly unable to testify and your

honor struck it out as hearsay. Now it is in the stenographic minutes.

I would like to know whether your honor wishes it excluded from the

record. The defendant reserved a right to make some sort of

4024 astatement. Unless, then, the testimony goes out, aid the de-

fendant make some sort of a statement, that is my under-

standing of the way the record is to be made up. Of course, as a

matter of fact, I stopped cross examination when your honor ordered

the testimony stricken out.

Mr. Kremer: My understanding, if your honor please, was that

your honor ordered it stricken out and we simply excepted. Then it

remains in the record. That is, it is represented in the record, but

not in the record for consideration by counsel to such a degree that it

calls upon him to cross examine upon it. To all intents and pur-

poses the testimony has been rejected.

The Court: I can not see any difference in principles whether it

is excluded altogether from the record or left in. There might be,

if there was an exception taken. Did you take an exception?

Mr. Kremer: There was an exception taken. It merely becomes a

part of the record.

The Court: When it was ordered stricken, did the defendants take

an exception?

Mr. Kremer: Yes, your honor.

The Court: I think it ought to remain in the record so that if it

ever goes to the Appellate Court, if this should have to go up, they

would have the benent of their exception. Otherwise, if we struck

it out altogether, the Appellate Court could not say whether it was

properly stricken or not. It should remain in in order that they will

i Sa SELES PERM TSTLEMEN IAP PLATING SP ARNIS REMMI OEE PEI

2

4

4

q

.

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2255

have the benefit of it. If it remains in the record it would

4025 not be considered by this Court, and certainly it would not be

considered by the Appellate Court more than to consider the

question, Of course, since you have not cross examined upon it, it

would not determine the question, if it was of sufficient importance

to take a note on it. That is the practice here.

Mr. Garrison: Have you closed now, with this exception ?

Mr. Kremer: We close.

Mr. Garrison: Now, we move to strike out all testimony offered in

behalf of the defendant to which we objected on the ground that it

was irrelevant and immaterial and incompetent because it did not

represent anything in the prior art and did not therefore meet any

issue that was raised in this case, and which was admitted by the

court upon the promise of the counsel for the defendant that they

would connect the testimony with the prior art and therefore make it

competent. The motion that Tam now making is based upon their

failure to make such connection and to show the relevancy and ma-

teriality and competency of such testimony by showing that it did

represent the prior art, or any part thereof.

The Court: Well, to all intents and purposes you are moving to

strike out all their testimony ?

Mr. Garrison: Of that character.

The Court: There is some of it. undoubtedly the court will not

take into consideration as not representing the prior art. 1 do not

think the court can grant a motion made in that way. | think we

are bound to leave all of this testimony in, and when we come

4026 to make up our decision, as far as it is entitled to weight the

court will give it weight, and as far as it is not, the court will

not consider it. Of course it will leave the case in such shape that

you can for your safety meet any or all of it that vou may see fit.

The motion will be denied.

Mr. Garrison: Exception.

Mr. Williams: On behalf of the plaintiff, the rebuttal testimony

will he opened by evidence of the acquiescence in the patent in suit

and of the great utility of the invention, the extensive use that has

heen made of it, not with any effort to make a complete showing,

hut to make a sufficient showing as to these facts, and I will first call

Mr. Ballot to the stand.

Whereupon the following testimony was offered in rebuttal:

Jonunx Batuor, reealled in rebuttal, testified as follows:

Direct examination.

By Mr. Williams:

Q. 1. I wish you would give a list of the licensees in America of

Minerals Separation Limited, and Minerals Separation, North Amer-

ican Corporation.

APOE L LE ERGY OPES ADEE LENE Ie AREAL TELE SORE Re PEG EERE AE

2256 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

Mr. Kremer: To which we object for the reason that it is

4027 incompetent, irrelevant and immaterial and does not tend

to prove the charge of infringement.

The Court: The objection will be overruled.

Mr. Kremer: Exception. And your honor will permit me to add

a further objection which I understand Mr. Williams will meet. In

connection with these licensees | understand that you are going to

produce the licenses?

Mr. Williams: Well, I believe all of the licenses are here. It may

be that one or two of the later licenses, which will be in form

exactly the same as the others, may not be here.

Mr. Kremer: Can you tell us the substance of them?

Mr. Williams: I think we can supply the information that the de-

fendant may want as to the details of these licenses and we have

the originals here which will be proffered insofar as necessary, al-

though we hope not to make too large a record in the matter.

Mr. Kremer: I will state, to save this time, we assume that some

time during the case that these licenses will represent a matter that

should have the serutiny and inspection of the defense, but both

for the purpose of showing the so-called acquiescence that they claim,

and if perchance it should ever become necessary to look to the

licenses to see the course and condition of business, they will be

available.

Mr. Williams: We will be very much pleased to show how reason-

able we are with our licensees,

4028 Q. 2. Read the list now.

A. Inspiration Consolidated Copper Company; M. W.

Atwater, Consolidated Arizona Smelting ‘ empany, Wim. B. Me-

Donald and Louis S. Noble, Atlas Mining & Milling Co., The Elm

Orlu Mining Co., Old Dominion Mining and Smelting Co., Weedon

Mining Company, Mountain Copper Company, Limited, Engels

Copper Mining Company, St. Joseph Lead Company, Anaconda Cop-

per Mining Company, Cananea Consolidated Copper Company,

Arizona Copper Company, Limited, Arizona Copper Company, of

Arizona, Doe Run Lead Company, Desloge Consolidated Lead Com-

pany, Utah Leasing Company, Napoleon Mining Company, Chicha-

goti Mining Company, Colusa Parrot Mining & Smelting Company,

Dutch Sweeney Mining Company, Portland Gold Mining Company,

Stoddard Milling Company, Butte Central Mining & Milling Com-

pany, Goldfield Consolidated Mines Company, Reward Gold Mining

Company, Ely Associated Brockman & Company, Ceylon Company,

Ducktown Sulphur, Copper & Iron Company, Phelps Dodge & Com-

pany, Pigrey Mines, Vindicator Consolidated Gold Mining Company,

Broadwater Mills Company, Britannia Mining & Smelting Company,

Mond Nickel Company, Limited, Cuba Copper Company, Silverton

Mines, Flint Mines Limited, Mineral Reeovery Company, Standard

Silver Lead Mining Co.. Cusi Mining Company, Highland Vallev

mae & Development Co.; and in South America, Braden Mines

in Chili.

BUTTE & SUPR. MNG, CO. VS. MIN. SEP., LTD., ET AL. 2257

4029 Mr. Williams: I regret to find that my very valuable as-

sistant has not brought the original licenses into court at the

present moment but they will be produced later.

Mr. Kremer: That is all right.

Mr. Williams: I now produce an affidavit by Henry Falck, the

general office manager for Beer, Sondheimer & Company, Ine., the

American agcnts for Minerals Separation, Limited, plaintiff. It has

heen stipulated between counsel that this affidavit shall be received in

evidence with the same force and effect as though Mr. Falck were

brought here from New York and testified as to the facts stated in

the affidavit; and a table of returns and payments of royalties by

United States licensees of Minerals Separation, Limited, which is

annexed to the affidavit,

Mr. Kremer: This stipulation, Mr. Williams, is, of course, subject

to the objection that it is incompetent, irrelevant and immaterial for

any purpose in the case. We do not object to the fact that Mr. Falck

is not present.

The Court: It is not incompetent, that is, as to form.

Mr. Kremer: Not as to form. Our stipulation goes to the matter

of form, Incompetent as to the matter of substance. It makes the

trip of a man from New York unnecessary.

The Court: The objection will be overruled.

Mr. Kremer: Exception.

4030 Mr. Williams: The affidavit and annexed table are offered

in evidence,

Mr. Kremer: The defendant objects for the reason that as to

substance the affidavit and the exhibits there attached is incompetent,

irrelevant and immaterial for any purpose in the case.

The Court: As far as the receipts are concerned I doubt if it would

he of very much materiality, but it will be allowed to be introduced

over the objection. The objection will be overruled.

Mr. Kremer: Exception.

Whereupon affidavit was admitted in evidence marked Plaintiff's

Exhibit 236,

Mr. Williams:

Q. 3. LT show you the table of returns and payments of rovalty an-

nexed to Mr. Falek’s affidavit and eall vour attention to the faet that

in the column, “Tonnage Material Treated” there are several items

marked “Not reported.” Will you explain why these items are not

reported, or were not reported ?

A. The tonnage of ore treated, because this was to be paid in per-

centages on metals recovered.

Q. 4. And on the other hand. in the column headed, ‘Tonnage

of concentrates Recovered” there are several items marked “Not

reported.” Why are those items not reported?

A. Why, they paid on the tonnage of straight ore treated. We

were not concerned with the concentrates.

PP ETI IEE ULE Ta ET ELE INS TEN EPIL ISIE MELE ESTE SMILE EPS SRE AH PUNE INE FEE I. PME OE ITE RLS LP, ON

2258 BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL.

4031 Q. 5. That is to say, as I understand it, if the license pro-

vided that royalty should be paid upon the ore treated, then

the return shows the tonnage of ore treated?

A. Yes, sir.

Q. 6. And if the license provides that the payments shall be made

upon concentrates recovered, then the returns show the concentrates

recovered ?

A. That is correct.

Q. 7. So that the table does not give entirely the total of ore

treated by the licensees or the total of concentrates recovered by the

licensees ?

A. That is correct. ~-

Q. 8. The only total given in the table is under the heading of

amount, which of course is the royalties, and there the amount is

$1,155,258.24. That is the total royalties received is it not?

A. That is correct.

Q. 9. From the licensees in the United States of America?

A. In the United States of America.

Q. 10. And as to the other licensees in America, whose names

vou have given, those in Canada, Cuba and South America, there is

no reference whatsoever to their payments in this table?

A. That is correct.

4032. Cross-examination.

By Mr. Scott:

XQ. 11. Mr. Ballot, are these sums paid to Minerals Separation

as shown in the list you exhibited. paid exclusively for the right to

operate under the patent here involved in this suit, No. 835,120, or

are there other patents?

A. There are other patents. All the licensees are entitled to use

all or any patent.

X Q. 12. And some twenty or more other patents, are there not?

A. More than twenty.

XQ. 15. Among those patents is there included what is generally

referred to as the Potter patent, and a Delprat patent?

A. In some of them; not all.

XQ. 14. Are these processes described in the Potter patent and the

Delprat patent being used?

A. I don’t know; I haven't heard of it.

X Q. 15. Have they ever been used? 7

A. By American licensees? et

X Q. 16. Yes. i

A. Not that I know of.

X Q. 17. By anyone?

A. Not that I know of.

Mr. Williams: I object to the inquiry which is intended to cover

the whole breadth of the earth, as I understand it, as indefinite.

4033 The Court: He has answered it.

——<

BUTTE & SUPR, MNG. CO. VS. MIN. SEP., LTD., ET AL. 2259

Mr. Scott.

X Q. 18. You mean to state distinctly that you do not know that

anyone anywhere ever made use of the Potter process and the Delprat

process ?

Mr. Williams: I object to any inquiry of this character as wholly

irrelevant and immaterial and not within the scope of the direct

examination of the witness; wholly immaterial and irrelevant.

Mr. Scott: The alleged evidence of acquiescence has ineluded

reference to companies outside of the United States, Canada and

Chili, and it is my purpose to develop to what extent these licensees

have any connection with the patent here in suit and to what extent

they may be paying for others of the privileges granted for these

licenses Bool, and it seems to be entirely proper, when we have

figures brought here representing payments of money calculated,

or at least deemed by the plaintiff to show the alleged importance

of its patents

The Court: Well, do we understand that applies also on the

Delprat and Potter?

Mr. Scott: I think Mr. Ballot said they were included in these

lessee agreements.

The Witness: Some of them.

Mr. Scott: And I think it is my purpose to show that these have

been used exclusively, have never been supplemented in some locali-

ties, and there is no reason to infer that these figures which have

been preserited before the court are due entirely, or are due

4034 in a large degree to the particular patent that is now before

the court.

Mr. Williams: These facts are limited to the United States.

The Court: The facts are such that there is other testimony,

covering other countries, I think it is proper cross-examination,

He may answer. Objection overruled. — ,

Exception by plaintiff,

The Court: It will be noted.

XQ. 19. (Question read as follows:) “Q. You mean to state dis-

tinctly that you do not know that anyone, anywhere ever made use

of the Potter process and the Delprat process?”

The Court: I think I will limit it to their licensees. You asked

him “anyone.” You may change the question. So far as the

question is objected to in that form, the court will sustain the objec-

tion, It should be limited to the licensees.

Mr. Scott:

X Q. 20. Do you mean to state distinctly that none of the licensees

of Mixerals Separation, Limited, have ever made use of the Potter

process or the Delprat process?

A. I never heard of that. I don’t know.

X Q. 21. Has Minerals Separation, Limited, licensees, either di-

ya I RRR RIES SE Ra SER NITE RON BE, SSRIS MRRP RRO HE SOARALS SENAMIINLEN ARIAT MD

2260 BUTTE & SUPR. MNG,. CO. VS. MIN. SEP., LTD., ET AL.

rectly or indirectly through subordinate companies, in countries

other than the United States?

A. Through subsidiary companies.

X Q. 22. And in what countries does Minerals Separation

4035 Limited grant licenses through subsidiary corporations?

A. Minerals Separation has only granted licenses in Amer-

ica, including United States, Canada, Mexico and Cuba.

X Q. 23. Minerals Separation, Limited, has no connections in

Australia?

A. Indirectly as shareholders in a company owning the processes

there.

X Q. 24. And either directly or indirectly has Minerals Separation,

Limited, any licensees in Australia?

A. Directly, yes; indirectly, no. Directly, yes, licenses were issued

while Australia belonged to Minerals Separation. These licenses

have simply remained in the same name and passed, after transfer,

over to the purchasing company when they acquired the Australian

rights. And no, since then we have no direct connection.

X Q. 25. And who were these licensees; who are licensees direct

from Minerals Separation Limited?

A. In Australia?

X Q. 26. In Australia.

A. Before the ;

X Q. 27. Before the arrangement you just spoke of.

A. The Sulphide Corporation, the Zine Corporation,—some minor

companies I don’t recall.

X Q. 28. Did either the Sulphide Corporation or the Zine Cor-

poration ever use the Potter process or the Delprat process?

A. Not that I know of.

4036 X Q. 29. Now, what is the arrangement at present for

the granting of licenses in Australia?

A. The Australian company grants them directly.

X Q. 30. And do any of the licensees of the Australian company

use the Potter process or the Delprat?

A. Not that I know of.

X Q. 31. What is the extent of your information about what

these licensees are doing?

A. I have no direct information.

X Q. 32. You are in a state of complete ignorance as to what

these licensees are doing after they get their licenses?

A. We don’t bother our licensces.

X Q. 33. Do you know what these licensees in the United States

are doing; what processes they are practising, whether it is one or

the other of these 20 or 30 processes that you grant the licenses

under?

A. I have a general idea; I can’t say that I have definite informa-

tion.

X Q. 34. Might be the Kirby process for all you know, or the

Froment process or the Glogner process or any of these prior art

processes for all you know; is that the idea?

i kn Ae se ie ii

_

BUTTE & SUPR. MNG. CO. VS. MIN. SEP., LTD., ET AL. 2261

Mr. Williams: Why, if your honor please, there has not been a

word of proof that these things that are described in these patents

were processes of the prior art, and they are put to this witness as

though they had some tangible existence, other than on sheets of

paper. I object to the form of the question,

4037 (Question read as follows: “Q. Might be the Kirby process

for all you know, or the Froment process or the Glogner

process or any of these prior art processes for all you know; is that

the idea?’’)

The Court: What is your objection?

Mr. Williams: My objection is that the things that the defendant

calls “processes” are things that exist only on pieces of paper. They

have no definite standing in the art of concentrating ores; and to

present them to the witness as processes of the art is to misrepresent

the evidence that the defendant has brought to this court.

Mr. Scott: Some of these patents I have mentioned are the ones

you grant licenses under. You include them in your definition of

prior art.

Mr. Williams: Some of them are mere paper patents.

The Court: The difficulty is that I think the witness has answered

that their licensees, or these licensees are entitled to use all such

patents, some 20 or more. Now, he is trying to weed out and find

how many of these are operating under the patent in suit, which

of course is all that is material here, and how many of these licensees

may be operating under some other patent.

Mr. Williams: Yes, but the statement he has put in his question,

the patents he has referred to are not patents that are in the list. -

The Court: There is the difficulty. The court does not

4038 know.

Mr. Williams: We haven't the schedule here. .

The Court: The court does not know. It is for you to show.

Unless these are patents that are a part of the licenses, it is immaterial.

Mr. Scott: He has not produced it and I can not tell which are,

but I will withdraw the question to avoid the difficulty.

X Q. 35. Now, Mr. Ballot, you claim to have no knowledge of

what processes your licensees or your licensees through subsidiaries

are practicing in Australia. Have you any definite knowledge of

what they are practicing in this country?

A. T have no personal knowledge of what they use.

X Q. 36. When did Phelps, Dodge & Company become a licensee

of Minerals Separation ; about what was the date when they became

licensees?

A. That is a matter of memory; I think it was 1913.

Mr. Williams: May I help the witness,

Mr. Scott: You can give the date.

Mr. Williams: The date of that license as given by a list prepared

is June 11th, 1914.

The Witness: 1914, I believe that is correct.

X Q. 37. I think, Mr. Ballot, that the name Phelps, Dodge &

a a a a i at Re EE EP REMAN SS ee

2262 BUTTE & SUPR, MNG, CO. VS. MIN, SEP., LTD., ET AL.

Company does not appear in the list of royalty payments which

you produced; is that correct’?

A. I believe that is correct.

X Q. 38. And can you explain why that is’

A. Because they have not paid.

4039 X Q. 39. Have they milled any ore under any one of these

twenty or thirty patents that they had the license under’

A. I don’t know from personal knowledge; they have not made a

return,

X Q. 40. How do you proceed to find out whether these licensees

owe you any money or not, if you don't know whether they are

practicing one of your twenty or thirty processes, or not?

A. The licensees are asked every quarter to make returns,

XQ. 41. Did you ask—do you ask Phelps, Dodge & Company,

for a return?

A. Possibly; | cannot tell you from personal knowledge, It is

an office routine; I cannot tell you,

X Q. 42. Do you know any reason why they have not made any

payments to you?

A. No.

X Q. 43. Have you ever tried to find out why that is’

A. I expect the office has found out,

X Q. 44. Well, does their license provide that they —how does it

provide that they shall pay you any money?

A. Well, if they are honest people they ought to send in returns

quarterly when they treat,

X Q. 45. Were you ever in Australia’?

A. No, sir.

X Q. 46. Are there any others of these licensees upon that list

*who have never paid you any license fees’

4040 A. I find the Old Dominion Mining & Smelting Company,

es.

X Q.47 Have you named all those that have made no payments?

A. IT recognize the Old Dominion Mining & Smelting Company.

X Q. 48. Any others’

A. There are some, but I cannot answer in person,

X Q. 49. Is it not true that none of these people have made any

payments, except those whose names appear on the statement ac-

companying Mr, Falk’s affidavit?

A. The licensees in the United States—possibly.

X Q. 50. Well, in the United States has any company or individ-

ual paid license fees other than those upon the list accompanying

Mr. Falck’s affidavit?

A. I don’t think so.

X Q. 51. How many licenses did Minerals Separation, Limited,

have in the United States, in October, 1911?

A. I couldn’t tell you that from memory.

X Q. 52. You know they didn’t have any, don't you?

A. October, 1911?

X Q. 53. October, 1911”

A. Possibly not; possibly not.

BUTTE & SUPR, MNG, CO. VS. MIN, SEP., LTD., ET AL, 2263

X Q. 54. What is your position in Minerals Separation, Limited’

A. Chairman and managing director.

404) XQ. 55. Don’t you, as chairman and managing director,

know whether or not Minerals Separation, Limited, had a

licensee in the United States in October, 1911?

A. I do,

, Q. 56. And they did not have any, did they’

Possibly not. I could verify it, but from memory I cannot,

x Q. 57. Well, I wish you would verify it. Isn't it a fact that

the first license that was ever granted by Minerals Separation Com-

pany to anyone in the United States was that to the Inspiration Cop-

a ompany on April 10th, 1913”

It is one of the earliest, if not the earliest.

x Q. 58. Can you state positively whether it is the earliest or not

by referring to this paper from which you refreshed your memory”

A. If this list represents the full ‘ist of licensees, it is the firet ;

it ix the first on the list,

X Q. 59. Do these reports which you get from these licensees show

anything about what kind of a process they are operating, whether

it is one or the other of these many patents’

A, No.

X Q. 60. Who has all this information about what these licensees

are doing’?

A. L expect they have their own reports—their own records. We

don’t keep them.

XQ. 61. No one in your company has any knowledge of how

they are operating’

4042 A, Our engineering staff—our technical staff visit them

and check them up.

X Q. 62. And your license agreements provide that you shall

have access and full information about these licensees, what they are

doing”

A. Yes, I think so.

X Q. 63. And still you have never acquired any of that informa-

tion whatever?

A. I personally, or the company”

( Witness excused, )

Ina L. Grenincer, called as a witness in behalf of the plaintiff,

being first duly sworn, testified as follows:

Direct examination.

By Mr. Williams:

Q. 1. State your full name and occupation?

A. My name is Ira L, Greninger; my occupation is that of mining

engineer and metallurgist.

Q. 2. Where are you at present employed?

A. I am employed by the Inspiration Consolidated Copper Com-

pany at Miami, Arizona,

ARENA OTe ER PR TEI Me Noes Se ee eal SL OT ND of OLR ORE

2264 BUTTE & SUPR, MNG. CO. VS. MIN. SEP., LTD., ET AL,

Q. 3. And what is your position with that company”

A. Acting mine superintendent at present.

Q. 4. And how many men have you under you in your position

as mine superintendent?

A. Something over a thousand.

4048 Q. 5. And about how much ore is mined per day in that

mine?

A. From nineteen to twenty-one thousand tons.

Q. 6. Prior to your employment as superintendent of mines, what

was your employment?

A. I was employed by Minerals Separation American Syndicate,

1913, Ltd., to give the full title.

Q.7. What work did you do for them?

A. I was engaged in demonstrating the flotation process and in-

stalling plants in various parts of Canada and the United States.

Q. 8. When did you commence to work on flotation?

A. In the month of July, 1911.

Q. 9. And what did you do in reference to the installation in Can-

ada for the Britannia Mining & Smelting Company?

A. | installed a small test unit at the mill of the Britannia Mining

& Consolidated Company, now the Howe Sound Company.

Q. 10. When?

A. In the month of June, 1912, as T remember.

Q. 11. And what kind of ore did you treat in that plant?

A. Their ore is a copper bearing ore, the mineral being in the

form of chalcopyrite.

Q. 12. And of what richness in copper?

A. At that time about four and a half to five per cent.

4044 Q. 18. And in this plant that you installed—in the first

place what sort of plant was it’

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