# Transcript of Record — Minerals Separation, Ltd. v. Butte & Superior Mining Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0140%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1919 - **Citation:** 250 U.S. 336 ## Text 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 Print 2203 2265 2288 2306 2328 2381 2402 2403 2423 2435 2607 2685 2635 2649 2656 2659 2661 2664 2669 2672 376 Ce ee Re Od ee oe ee wee eee . 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 a ee A Le See ee es) 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? . 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 ’ “ 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 tho [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0140%3A5. Public record. Not legal advice.