# Transcript of Record — Duplate Corp. v. Triplex Safety Glass Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0046%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1936 - **Citation:** 298 U.S. 448 ## Text o~? —— —_ re Vol. [ Tees ~ TRANSCRIPT OF RECORD | © Supreme Court of the United States OCTOBER TERM, 1935 _ ii No. 767. DUPLATE CORPORATION. AND. PITTSBURGH PLATE GLASS COMPANY, PETITIONERS, vs. TRIPLEX SAPETY GLASS COMPANY OF NORTH AMERICA No. 768 DEPLATE CORPORATION AND) PITTSBURGH PLATE GLASS” COMPANY, PETITIONERS. vs, TRIPLEX SAFETY GLASS COMPANY OF NORTH ; AMERICA ON WRITS OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE HIRD CIRCUIT yo - PETITION FOR CERTIORARE FILED FEBRUARY 21, 1956. CERTIORARI GRANTED MARCH 30, 1936. 1? Seis SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1935 \ No. 767 DUPLATE CORPORATION AND PITTSBURGH PLATE GLASS COMPANY,. PETITIONERS, vs. TRIPLEX SAFETY GLASS -COMPANY OF NORTH AMERICA No. 768 DUPLATE CORPORATION AND PITTSBURGH ~* PLATE GLASS COMPANY, PETITIONERS, vs. TRIPLEX SAFETY GLASS COMPANY OF NORTH © AMERICA $N WRITS OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT - OF APPEALS FOR THE THIRD CIRCUIT VOL. I. INDEX. Original Print 4 Record from D. C. U. S. Western Pennsylvania.......... ran 1 a Se MIIOOD . du can cb gacbedsacuaciedencesivanabaewens 1 “4 Bill of complaint........ On'606600 00604660606 usbedene 10 7 EOGGORGRMES GRUWOE oc cvcccccccccscecccesccvedes ore 18 13. Stipulation as to change of name of defendant......... 22 15 Jupp & DETWEILER (INc.), Printers, WasuHinxetox, D. C.. Aprit 3, 1936. —7635-C whe Tir han nL MRC Signa HME Gn «e\a0% Piaehoitnr Deitel ie Bite cll ih ase INDEX il e o. 4 Original Record from D. C. U. S:, Western Pennsylvania—Continued. '' Order-changing name -.............-..0000e+ teens reese 22 Order as to supplemental bill of complaint...........-. 23 _ Supplemental bill of complaint ....................4.- 24 ‘Answer ‘of Pittsburgh Plate Glass Company............ 3 Imterfocwtery GOcree 2... cc cscs caccccsccccess fcbecneean 37 Interlocutory decree upon supplemental bill and answer 40 ‘Release of bond ............. pasinsicesdhinens eeauan 3 Order Discharging Surety on bond..............000000- - 43 Accounting proceedings before the master............. 44. PY ETTTTTOTTLITELILIEL LETT getees 44 Order for defendant to appear and file statement of ; GORRRIE, GOR. caccacdnacansstkisarssacraas errr 45 Stipulation as to checking of account, ete....... 4 47° Notice of accounting proceedings.................. 48 Objections to defendant's account..... ce eneeeceess 51 Testimony of C. L. McHenry .........2...--52006: nD UE CN Bc dd cc nkansancean ene | Be iy ices doe cadaseencddnaka 9S Pee Me Medak sebddgadindeanwas 102 P CY By Si saccade cadanaans j 136 I ls ID ocd dou kcascdacuaen 144 Neilson Edwards ..2..............%. 159 PE SEES. nc dandccesnecksae 179 ED Cancéc sn ceeecscsewes 201 H. $. Wherrett....°...:.....,-..... 219 C: L. MeHenry (recalled)........... 220 Sydney. W. Caulfield ........... as C. L. MeHenry (recalled)........... 247 George E. Sharpe (recalled)........ 249 (. L. MeHenry (recalled)........... 293 Philip F. Datz (recalled)........... 295 Pe Bb GT Séncdcccnescasnesses: 298 Sydney W. Caulfield (recalled)...... 305 Francis L. O. Wadsworth ........... 311 CHEN anwar enccncctddancccecosniogecancssiones $21 Testimony of Robert L. Clause ..... “dsnkaaweneeos 323 it ee CE bacuedbessaecansedceobewe 398 CEN ec ce cnddnccovansdecestaesicésabannssoce 465 Additional objections to defendants’ account....... 465° Stipulation as to facts with respect to soda ash, — pmG amd Mahe, G00. 2... ccscccccacasccanscsccces 472 ORS GE Ti, Bh MBs é dcéeadscdccadccancacss 474 J. H. Sherts (recalled) ...... cane 496 Order re filing of additional account .............. 527 Testimony of A. M. Wibel.........: enbaeanedasae 528 R. H: McCarroll ........ Cvapaaren 42 ly Is. GE on 6643 bb anGacedaada¥eas 563 x SE SR cas nnenneedesed fait ee Be SED catackadasccecabeus 196 A. C. Downey ...... PEPE PEO Ey: ~ “15 J. E. MeLarty Print 16 "16 17 24 26 28 11 12% 139 156 171 171 172 193 195 229 231 233 239 ~ 243 252 253 313 367 367 372 . 391 415 416 427 444 453 470 485 INDEX ill Record from D. C. U. 8., Western” Pennsylvania—Continued. Accounting proceedings before the master—Continued. 7 Original Print . Statement of cost of thin polished glass for years 1928, 1929 and 1930......... pedeadedscaneasesens 641 505 Additional exceptions to defendants’ statement of . EE. Seb vac aeaws deae ne oe nkeesweecsascidere 641 506 Testimony of C. L. McHenry (recalled)........... 644 508 Motion for order requiring plaintiff to produce cer- ; GREE CD UN GND nn cccccnesecareascssvsas 671 529 Testimony of Philip F. Datz (recalled).....:...... 677-534 C. L. McHenry (recalled),.......... ~ 706 557 Philip F. Datz (recalled) ........... 728 575 - _ C. L. McHenry (recalled)........... 729 576 ; Robert L. Clause (recalled)......... 733 579 Order denying motion to examine books and rec- ords of plaintiff......... . Ms Sil tinal atta LAR IRA DBs ae bc Na SMES E EIN In tf oN Se ° Ls, eee appa ibd para eE SSO i seve rs: a aT iv INDEX. Record from D.C. U. 8. Western Pennsylvania—Continued. Repott of Master Sur Account—Continued. 1. The Defendant's I’rotits—Continued »* Original . I). Contested Items of Cost and Expense... 101% 4 Selling Commissions.................... 1014 Factory Operating Loxses.............. 1015 Cutting Department................ 1015 . Hramepestatien «..ccccccccccccses . 106 Assembling Department............ 1016 Pressing Department............... wiz Edging Department................ 1019 POU Bc cc cccccccccedcccess 1019 Law of Factory Operating Losses... 1019 Defective Product Returned............ 1021 Return After Accounting Ieriod........ 1022 Experimental EDs so ccecerscoseese 1023 Extraordinary PGND: cdecccsccccesee 1024 Average Costs and Specific Selling Prices 1025 Additional Claim as to I’yralin Losses. . 1020 Il. The Plaintiff: Damages: . BSD UME c ccc ecccccceccecscéooes lie DU ER uicschtevetesceééeteceseséeseos 1081 PE GIN, Seececcdccocccsecconceseses lez Reasomable Royalty... .. 0.0... c cc snccccsces 1084 PG Enh 30005 0b c00edesdécceesectbace 1044 SD, GAs a occccceccoupcecocseoascs 147 Master's Readings, Exhibits.................... 1050 BUD Ge TE Gia scccpcccccccceccccsoses 1051 Appendix A—Opinion of Special Master in Re Piain- tiffs Requests for Order Directing Pittsburgh Plate Glass Company to Account for Profits on Plate Glax« : Sold to The Duplate Corporation... 1052 Appendix K—Account, Per Findings.............. 1065 Appendix C—Table, Losses Reduced I’rices........ 1068. Appendix D—Master's Readings...... ea eneeeee . 1060 Plaintiff's Exceptions to Master's Final Report........ 1074 Defendants’ Exceptions to Master's Report........ rn Notice and Motions for Judgment by I’faintiff.......... 1003 Motion to dismiss Maintiff’s exceptions............... 104 Opinion on Defendants’ Application for a Review of an Incidental Ruling of the Special Master in the Ac- counting Proceeding, Schoonmaker, J.............. 1 ‘Order denying application for review of incidental rul- . Se Oe SE nbSennccdccccectcciccdecescoscsoecs 10S . Opinion on Defendants’ “Petition With Respect to I'ro- duction and Examination of Certain Books and Records of the Plaintiff, Schoonmaker, J........... lou ‘ Order denying petition for order directing plaintiff to produce certain books and records................. 1101 Opinion, Schoonmaker, J.. on exceptions and motions to assess interest and costs. .............66600000s 1102 ee en ee ne 7 - oe Print EeeeER REEL ae — ae \ INDEX Vv Kecord from D. CU. S., Western Pennsylvania—Continued. Original Print Supplemenial opinion on Master's report. Schoon- ED Dds apdescnccsdséndodecococensecnsasocdsehe 1110 S878 EE Ss naccdsdweddsebotasabadésebdssacosscsoae 1111 879 Order Regarding Findings of Fact and Conclusions of ORES SRILA CE 1130 R80 Defefidants’ Petition for Appeal...................... 1114 881 ey AD SINE cd ccuccccccddsocscccecoecedbe » 1114 881 Defendants’ Assignments of Error ...... iacesceaseeda 1115 SSI Plaintiffs Notice of Appeal................. Becsceves 1130 SO4 ’ Plaintiff's Petition for Appeal............... nae 1131 5 GuGer AMbot ing Aged ccs ccccccccccciccccccccccceh 1132 896 Plaintiff's Assignments of Error...................... 1138 806 Stipulation Re Record........... SAeeuesbneeseerseeee 1144 906 ee Fae We Cine Mehidcocccdacdedibsotessddceds 1149 910 Proceedings in U. §. G. C. A. Third Cireuit ..... o664e06be0n 1151 910 Minute entry of argument and submission................. 1151 910 Opinion, Thompson, J............ seaebesacaée eT ee Pee 1152 o11 COwGere aGitemlng Gecree. oo. c cc ccc ccccccccccccccccccccscece 1167 923 . Clerk's certificate [omitted in printing}.................... 1160S 4 Miaintiff’s exhibits before Master..................2..... 1170 924 Media Se Bes. 4 00-6 Gays cccccccccdecctccccccsceses 1170 924,925 No. 5—Order of Avg. 30, ena ic ita Plate Glass II AET IE, Is iia IL 71‘ g26 - Revital re a: Mina baceabessdbenkenncseccocceveasdas 1172 927 No. 6—Copy of Invoice—Pittsburgh Plate Glass to Du- See. Ge creconccnneeeseceectodas cee 1175 928 6A—Copy of Invoice—Pittsburgh Plate Glass to . Fea GAR GRBs coos cc cicccccccsccess 1174 28 Recitats re Nos. 7 to 7-d inc................. e0ee6 sates 1175 920 No. Abstracts of stock and departmental accounts— Pittsburgh Safety (Glass Co............... 1176 0 No. 9—Plaintiff's Report. ....... 2.2... ...0ccccccceccee 1179 931 9-A—Summarization of Report.................. 1187 940 10—Two Schedules Identified by Witness Sharpe.. 1207 oH) 11—Letter of December 8, 1928, Gorrell to Edwards 1200 N62 12—Letter December 11, 1928, Edwards to Gorrell. 1212 iS 13—Reprint of Newspaper Article................ 1214 968 14—-Contract—Stutz Motor Car Company mained aaa a 67 Recitals re Nos. 15 to 18, ine....... cceebedoasenseaeaecs 1218 970, 971 No. 19—Memorandum and work sheets.......0........ 1219 972 Sees OP SUE Ub cdectconcsnbesatdcbenscvecassuanens 1223 973 No. 21—Lease—Pittsburgh Plate Glass Company ont du- Pont Viscoloid Company.................. 1224 973 SR ETOR THRs occ cccccccccccccsccccocesces 1233 aso SPPOEE MENU ocnccccbccccddccdencecsescc 1235 980 22-B—Delivery Tickets. ...°.....cccccsscccccccccss 1237 Age 23—Bill—Pittsburgh Plate Glass Company to Du-. * plate Company, May, 1929........ Se 1230 oSO 24—Copy of License Agreement—tTriplex Safety Glass Company and Johnston Glass Com- “~ Dy a ceccissucoiensscnieneseiedcuky ico 98) 2 VOL vil INDEX Record from D. C. U. S., Western Penusylvania—Continued. Plaintiff's exhibits before Master—Continued. Original 1252 Recitals re Nos. 25-A to 25-C, inc..............-. ae ee No. 26-A—Original Invoice—duPont Viscoloid Company to Triplex Safety Glass Company......... ~“6-B—Original Invoice—duPont Viscoloid Company — to Triplex Safety Glass Company..... fee 21i-C—Original Invoice—duPont Viscoloid Company to Triplex Safety Glass Company......... . 26-D—Original Invoice—duPont Viscoloid Company to Triplex Safety Glass Company.......:. Meieeh 86 Tie, Bhi ce cccascescs Lseee Garren causa kanes me No. 28—Tabulation of sales at reduced prices......... Recitals re Nos. eG ME dcekcccesancneseeceens No. 80—Tabulati#n—Polished Vlate Cutting Loss, Anal- wis by Customers’ Orders................ 31—Statement—Comparison of Details of Contested Items Eliminated From Cost.............. Relies Oe Sk ee ot cc ee na awe cond RESP Ra WE Eee Defendants’ exhibits before Biaster oc c.c = Jo > = JR Aug. Aug. ‘ Docket Entr&s—Continued 18, 1930. Mandate received from Circuit Court of peals affirming the decision of this Court with costs; Triplex Safety Glass Co. to recover against the said Duplate Corp. the sum of. $20.00 for its costs expended herein. 19, 1930. Injunction order filed and entered directing - that injunction carried by the interlocu- ° tory decree of Dec. 9; 1929 be issued forthwith. 19, 1930. Permanent Injunction issued. 28, 1930. Permanent Injunction returned service ac- knowledged by attorney for defendant. Jan. 24, 1931. On motion of plaintiff, rule granted on de- [fol.4] . Jan. 24, Jan. 24, Feb. 14, Feb. 24, Feb. 28, Mar. .3, Mar. 3, Mar. 13, May 13, i ae P Oct. 7, Oct. 7, 1931. 1931. 1931. 1931. 1931. 1931. 1931. 1931. 1931. 1931. 1931. 1931. fendant to show cause why it should not be adjudged in contempt of Court. Affidavit of Arthur W. Thomas filed. Affidavit of Willard L. Morgan, with ex- hibits, filed. . Defendant’s motion to discharge rule to show cause why it should not be adjudged in Contempt filed. ‘Affidavits for defendant sur proceedings for contempt filed. Rebuttal Affidavit of Willard L. Morgan filed. Hearing on motion to discharge rule granted Jan. 24, 1931, before Schoon- maker, J.—Motion denied. Hearing on rule for contempt—argued CA. Opinion filed and entered denying plain- _tiff’s motion to adjudge defendant in contempt; an order to be submitted. Transcript of testimony filed. Notice and motion for leave to file supple- mental bill filed. Supplemental bill of complaint filed by leave of Court. Subpeena issued. f. Be 3 5 3 bd s. : s fe = SNS CURSE EET ope ORLA LLP P ERE ds hee REAR IIT RR e ty ee Docket E\nrrres—Continued - Oct. 8, 1931. Subpoena returned served on Marshall A. Christy; attorney who accepted service for both defendants at Pittsburgh, ra. on October 8, 1931. Oct. 21, 1931. Answer of Pittsburgh Plate Clans Co. filed to Supplemental Bill of Complaint. [fol. 5] Dec. 5, 1931. Interlocutory decree upon supplement bill and answer filed and _ enterec adjudging, that Pittsburgh Plate Glass Co. has jointly with Duplate Corp. in- fringed Letters Patent No. 1,182,739; that a perpetual injunction issue against said Pittsburgh Plate Glass Co.; that the plaintiff recover from said de- fendant its damages; that this matter be referred to G. Dixon Shrum, Special Master; that the defendant pay the costs. Dee. 16, 1931. Order of Court filed and entered releasing the surety on the bond filed Dee. 10, 1929. Jan. 26, 1932. Pretipe for appearance of Smith, Buch- anan, Scott & Gordon for defendants filed. | Apr. 20, 1932. Petition of defendant to sustain excep- tions; certificate of Special: Master; and renewal of defendants exceptions filed. Apr. 23, 1932. Answer of plaintiff to petition of defendant filed. June. 10, 19382. Opinion sur defendant’s application for re- view of an incidental ruling of Special Master filed; order to be submitted. June 22, 1932. Order of Court filed and entered denying without prejudice the application of the Pittsburgh Plate Glass Co. for a veview of the incidental ruling of the Special _“Master; they to file exceptions to the [fol. 6] whole or any part of any final report of | the master. Oct. 21, 1932. Defendants petition with absent to produe- tion and examination of certain books and reegrds of plaintiff filed. al Oct. 21, 1932. Oct. 31, 1932. Jan. 12, 1934. Jan. 18, 1934. Jan. 31, 1934. Feb. 1, 1934. Mar. 27, 1934. Apr. 3, 1934. Apr. 3, 1934. [ fol. 7] Apr. 3, 1934. May 1, 1934. May 25, 1934. June 28, 1934. Docket Entrres—Continued Opinion filed and entered denying defend- ant’s petition; without prejudice, to the right of defendant’s to raise the same question by exception to the Master’s re- port—an order may be submitted accord- ingly. ; Order of Court filed and entered denying defendant’s motion, directing the plain- tiff to produce its books and records, without prejudice, to the right of de- fendants to raise the same question by exception to the Masters final report. Report of Special Master sur account filed. Proof of service of notice of return of Mas- ters report to Clerks office, filed. Defendant’s exceptions to Master’s report filed. Plaintiffs exceptions to masters report filed. Notice to defendants that motion are to be presented filed. Motion -to dismiss plaintiffs exception to - the report of the master filed. Argued before Schoonmaker, J. C. A. Y. Trial memo filed. Opinion filed and entered over-ruling ex- ceptions to Master’s report, and confirm- ‘ing same absolutely; assessing costs of accounting against defendant-, allowing interest on the award of damages from the day infringement ceased; Decree to be submitted. | Plaintiff's bill of costs filed. Supplemental opinion filed and entered sus- taining defendants’ exception No. 11 to the extent of the award of $2807.89 as specific damages @e to reduced selling price, in addition to award of a reason- able royalty. SE OT ION ENT REET NT OT NEN LENE OO TIN aiuh Sh, aaa ‘ i | ne Cresa * - Docket Entries—Continued 2, 1934. Final decree filed and entered overruling 2, 1934. On moti plaintiff’s exceptions to the Master’s re- port, defendants*exceptions to the Mas- ter’s report is confirmed absolntely; plaintiff’s motion to assess interest at the rate of 6% per annum from the date the infringement ceased is hereby granted; plaintiff to recover from de- defendants its costs in the amount of $8332.25; plaintiff to have judgment in the total amount of $523,912.52, with in- — 6% per annum until paid. of plaintiff order entered direct- ing that opinion dated May 1, 1934, sup- plemental opinion dated June 28, 1934 Special master’s Findings of fact & con- © clusions of law, as set forth in Findings ’ of fact numbered 1-26 and conclusions of law numbered 1-18 dated Jan. 12, 1934 except Special Master’s Conclusion of law 17, be adopted as Findings of Fact & Conclusions of law in conformity with “ Equity rule #70%. ° , 1934. On motion of plaintiff, order entered di- recting matter to-be adopted as Findings of Fact and Conclusions of law in above case—defendant- except, exception noted and Billed sealed. 6, 1934. On petition of Duplate Corporation and 6 July ! Aug. [fol. 8] Aug. 27 Sept. Sept. 6, Sept. 6, Sept. 6, Sept. 17, - Sept. 17, Sept. 17, Pittsburgh Glass Co..order entered al- lowing appeal. 1934. Assignments of Error filed. 1934. Citation issued returnable Oct. 6, 1934. 1934. Stipulation filed and order entered waiving the filing of appeal cost bond of each party. 1934. On petition of Triplex Safety Glass Co. order éntered ailowing appeal. 1934. Assignment of errors filed. 1934. Notice of appeal filed with acceptance of service thereon. Docket Entries—Continued Sept. 18, 1934. Citation issued returnable Oct. 17,1934. Sept. 29, 1934. Petition of defendants re general contents of record on appeal filed with acceptance of service thereon. ‘ [fol. 9] Oct. 2, 1934. Plaintiff’s answer to defendant’s petition ; re contents of record on appeal filed. Oct. 3, 1934. Stipulation re contents of record on appeal and order approving same filed. ~ : Oct. 3, 1934. Order (on defendants’ petition of Sept. 29, 1934) directing that master’s Exhibit 32 for identification shall not be included in the appeal record; exception noted to the . plaintiff. — [fol. 10] In Unrrep States District Court ror tue Wesr- ERN District or PENNSYLVANIA In Equity. No. 2295 — TRIPLEX Sarety Guass Company or Nortu AMERICA, V. PirtspurcH Sarety Guass Company, Defendant. Bit or Comptaint—Filed December 31, 1928 To the Honorable Judges of the District Court of the United States for the Western District of Pennsylvania : The plaintiff, Triplex Safety Glass Company of North America, complaining of the defendant, alleges: First. That the plaintiff, Triplex Safety Glass Company of North America, is a corporation of the State of Dela- ware and has its principal office in‘Clifton, in the State of New Jersey; that the defendant, Pittsburgh Safety Glass Company, is a corporation of the State of Delaware and has its principal office.and regular and established place of business in the City of Pittsburgh, in the State of Pennsyl- EEL EIGEN et ILL OCI ATES RD " vania, within the Western Judicial District of Pennsylvania at which place and within which district, as well as else- where in the United States the acts hereinafter complained [fol. 11] of as infringements have been and are. being done by said defendant. Second. That this is a suit in equity arising under the Patent Laws of the United States, for infringement of Letters Patent of the United States No. 1,182,739. - Third. That on‘and prior to the fourteenth day of June, 1911, Edouard Benedictus, then a citizen of France, was within the meaning of the Statutes of the United States then in force, the first, sole, true and original inventor of certain new improvements in manufacture of strengthened glass, not known or used by others in this country and not patented or described in any printed publication in this or any foreign country before his invention or discovery thereof, or more than two years prior to his application for ‘letters patent therefor, and mo application for any foreign -patent having been filed more than twelve months priar to the filing of the application for letters patent in this coun- try, and which improvements had not been in public useor on sale in the United States for more than two years prior - to-his said application for letters patent therefor, and not abandoned to the public. Fourth. That on the fourteenth day of June, 1911, the said Edouard Benedictus made and filed an application in writing to the Commissioner of Patents for the grant of letters patent upon the said invention or discovery of im- provements in manufacture of strengthenefl glass, ‘said ap- plication bearing No. 633,128; that on the ninth day of May, 1916, all the requirements of the Statutes of the United States then in force having been complied with, Letters Patent of the United States No. 1,182,739, fer improve- ments in manufacture of strengthened glases, was duly [fol.12] issued on the said application to said Edouard Benedictus ; that said letters patent was issued in due form of law in the name of the United States of America under the seal of the United States Patent Office, signed by the ' Commissioner of Patents, duly recorded and delivered to the said Edouard Benedictus, and was so issued after due examination as to the novelty, patentability and utility of the inventions therein described and payment_of the fees -} 9 required by law; and that the said letters patent granted to the said Edouard Benedictus, his heirs, legal representa- tives or assigns, for the fuk term of seventeen years from the date thereof, the full and exclusive right and liberty to make, use and sell the inventions set forth, described and claimed therein throughout the United States and terri- tories thereof. ; Fifth. That the plaintiff is the sole and exclusive owner ' of the entire right, title and interest in‘and to Letters Pat- ent of the United States for manufacture of strengthened glass, No. 1,182,739, dated May 9, 1916, and granted to Edouard Benedictus, and is the exclusive owner of the entire right, title and interest in and to all damages and profits recoverable at law or in equity for any and every infringement of said letters patent and in and to all claims and demands for such damages and profits by virtue of certain instruments in writing duly executed and recorded in the United States Patent Office, as by the said instru- ments in writing or by duly certified copies thereof, ready in court to be produced by the plaintiff as your Honors : shall direct, will more fully appear. 4 Sixth. That the said improvements in manufacture of strengthened glass shown, described and claimed in said : Letters Patent of the United States. No. 1,182,739, have - : .been and are of great practical use and benefit to the plain- g (fol. 13} tiff and to the public; that the plaintiff has in- / vested and expended large sums of money and has been to f great trouble and expense for tle purpose of introducing the same into public use and making the same profitable to it and useful to the public; that said improvements have been favorably known throughout the United States; that the publie has generally acknowledged and acquiesced in the value and utility of said improvements and has gener- ° ally acknowledged and acquiesced in the rights secured to the plaintiff by the said letters patent; and that*the plain- tiff believes that it will-realize and-receive large gains and profits from the said improvements if it shall reecive the ] equitable relief prayed for in this bill of complaint. YA PEAR TY entre PE TOE A PIP T RT Ho Py, Seventh. That the plaintiff has given notice to the pub- lie that strengthened glass embodying the improvements shown, described and claimed in said Letters Patent of the United States, No. 1,182,739, is patented by affixing to tative oricctrnrc e 10 each piece of such glass made, sold and used by it since the issuance of said Letters Patent of the United States and em- hodying the said improvements the word ‘‘Patented”’ or a proper abbreviation thereof, together with the ‘date of said letters patent; that the plaintiff has strictly complied with the requirements of Section 4900 of the Revised Statutes of the United States in sueh cases made and provided; that the plaintiff has notified the defendant in writing and othérwise that the improvements shown, described and claimed in Bald Letters Patent No. 1,182,739 are patented de fondant is viol: ating ae exelusive rights acquired by and secured to the plaintiff under said letters patent ; ‘and that the defendant is committing the infring- ing’ acts herein complained of with full knowledge of plain- tiff’s rights. [fol.14] Kighth. That at divers times between the date a ¢1 ana. that the of granting of said Letters Patent No. 1,182,739 and of the — filing of this bill of complaint and within six years prior to the filing of this bill of complaint, the defendant, well knowing the faets hereinbefore set forth, but contriving to injure the plaintiff and to deprive it of -the profits and ad- vantages which might and otherwise would accrue to it from said Letters Patent of the United States, No. 1,182,739, and from the several improvements therein described and claimed, has been and now is making and selling strength- ened glass embodying the improvements therein described and claimed in said Letters Patent of the United States, No. 1,182,739; in the City of Pittsburgh, in the State of Pennsylvania, within the Western District of Pennsyl- ‘vania, and elsewhere within the United States, all without any license or allowance of the plaintiff and against the - will of the plaintiff and in. violation of its exclusive rights under the said Letters Patent of the United States, "Ne. 1,182,739; and that the defendant, as the plaintiff-is in- formed and believes, Intends and threatens to continue to make and sell strengthened glass embodying the improve- .ments described and claimed in said Letters Patent of the United States No. 1, 182,739, in the City of Pittsburgh, in‘ the State of Pennsylvania, within the Western District of Pennsylvania, and elsewhere within the United States, without anv license or allowance of the plaintiff and in defiance of the exclusive rights acquired by and secured to the plaintiff under said Letters Patent of the United wage 7M SEH PIN rd 11 States, No. 1 182,739; that by reason thereof the plaintiff has been and is being depriv ed of great gains and profits which might and otherwise would have been obtained by it, but which have been and are now being received and en- joyed by the defendant by and through “tts said unlawful [fol. 15] acts and doings, to the great and irreparable loss and injury of the plaintiff; that said unlawful acts and doings of the defendant and its disregard and defiance of the exclusive rights of the plaintiff, as aforesaid, have the effect to and do encourage others to infringe said Letters Patent of the United States, No. 1,182, 729, and to disre- gard the exclusive rights of ‘the plaintiff thereunder; ; and that the plaintiff is unable to state how much strengthened glass embodying the improvements described and claimed in said Letters Patent of the United States, No. 1,182,739, the defendant has made or has caused to be made and sold, or caused to be sold, as aforesaid, but is informed and be- lieves and therefore avers that the defendant has- made and sold strengthened glass in the City of Pittsburgh, in the State of Pennsylvania, within-the Western District of Pennsylvania, and elsewhere within the United States, in infringement of said Letters Patent of the Wnited States, No. 1,182,739, and prays a discovery thereof. Wherefore the plaintiff prays: 1. That the defendant be compelled to account for all strengthened glass embodying any of the improvements described and claimed in said Letters Patent of the United - States No. 1,182,739, which it has manufactured or sold or caused to be manufactured or sold in the City of Pitts- burgh, in the State of Pennsylvania, within the Western District of Pennsylvania, and elsewhere within the United States, in infringement of said Letters Patent of the United igi No. 1,182,739. . That the defendant be compelled to account for and pay to the plaintiff all profits, gains and savings by it acquired and the actual damages suffered by the plaintiff from the infringement by the defendant of said Letters Patent of the United States No. 1,182,739.. [fol. 16] ©3. That the defendant and its officers, agents, servants, attorneys, employees, and each of them may be restrained from any further violation of the exclusive ~~ samillieanaecre - . ‘ | : PEWS 12 rights of the plaintiff under and from infringement of said Letters Patent of the United States, No. 1,182,739. 4. That the defendant may be decreed to pay the costs of this, suit. do. The plaintiff further prays for a writ of injunction issuing from and under the seal of this Honorable Court perpetually enjoining and restraining the defendant and its officers, agents, servants, attorneys and employees from further making or selling or causing to be made or sold any strengthened glass embodying any of the improve- ments described and claimed in Letters Patent .of the United States No. 1,182,739, in‘violation of the exclusive rights of the plaintiff hereunder and in infringement of said Letters Patent of the United States, No. 1,182,739. 6. And plaintiff further prays that a provisional or pre- liminary injunction be issued restraining the defendant from.any further infrv ~t of said Letters Patent of the United States, No. » 82,739. 7. And plaintiff further prays for a writ of subpeena ad respondendum issuing out of and under the séal of this Honorable Court directing the defendant and commanding it, on a day certain therein to be named, to appear and.to answer this bill of complaint (but not under oath, an an- swer under oath: being hereby expressly waived) and to abide by and perform such orders and. decrees as to this Court shall seem meet and may be réquired by the prin- ciples of equity and good conscience. [fol.17] 8. And for such other and further relief as the circumstances of the case may require. Triplex Safety Glass Company otf North America, by Amory L. Haskell, President. Attest: Starr Cooper, Secretary. William B. Greeley, Drury W. Cooper, New York, of Counsel for Plaintiff. (Seal.) Brown & Critchlow, 1526 Farmers Bank Bldg., Pittsburgh, Pa., Solicitors for Plaintiff. Duly sworn to by Amory L. Haskell. Jurat omitted im printing. . : [fol. 18 | In Unitep States Districr Courr DeEFenDANn’’s ANswer—Filed March 4, 1929 I. Defendant admits the corperate existence of the plain- tiff as averred in paragraph first of the bill of complaint and it admits itself to’be a corporation of the State of Dela- ware, having its principal office and regular and established place of business at Pittsburgh, Pennsylvania, but it de- nies that it has committed any act of infringement within the Western District of Pennsylvania or elsewhere. II. With respect to the averments of paragraphs third and fourth of the bill of complaint, defendant admits the issue of letters patent therein named, No. 1,182,739, to Edouard Benedictus, but it denies that the said letters patent were lawfully issued, as well as that there was thereby granted to the said Edouard Benedictus, his heirs, [fol. 19] legal representatives or assigns, any exclusive right or liberty, and. it denies all the other averments con- tained in said paragraphs third and fourth. IIT. As to the averments of paragraph fifth of the bill of complaint, defendant is without knowledge. IV. As to the averments of paragraph sixth of the bill of complaint, defendant is without knowledge. > V. Whether or not the plaintiff has marked strengthened glass manufactured and sold by it, and alleged to embody the alleged improvements of the said letters patent, as ‘pat- ented,’’ as averred in paragraph seventh of the bill of com- plaint, defendant is without knowledge. Defendant admits that prior to the filing of the bill of complaint it was notified of the said letters patent and of its alleged infringement thereof, but it denies that it has committed any infringine acts either before or after such notice: ‘VI. Defendant denies that at any time it has miade or sold, is now making or selling, or intends to make or sell any strengthened glass embodying any of the alleged improve- ments purporting to be described and claimed in the said letters patent, within the Western District of Pennsylvania or elsewhere, and it denies each and all of the averments of paragraph eighth of the bill of complaint. oe Pe aa ss ei acti ew: . 14 VII. Defendant denies that Edouard Benedictus, in said bill of complaint named, was the true, original and first in- ventor of any of the alleged improvements purporting to be set forth in the said Letters Patent No. 1,182,739, or of any material or substantial part thereof; on the contrary, de- fendant avers the fact to be, that prior to the pretended ~ invention thereof by the said Bénedictus, and for more than two years prior to the date of his application for the said [ fol. 20] letters patent, the said alleged improvements, in all material and substantial parts, had been known and used in this country, and had been patented and described in printed publications in this and foreign countries, as is dis- closed in and by the following: United States Letters Patent | No. 346,864, dated August 3d, 1886, to Read. No. 610,861, dated September 13th, 1898, to Goodwi in. No..765, 975, dated July 19, 1904, io Fields. No. 830,398, dated September 4th, 1906, to Wood. ~ English Letters Patent No. 3250 of 1873, to Holyaoke. No. 5080 of 1884, to Cunliffe. No. 15303 of 1884, to Fulticks. No. 17126 of 1900, to Hofer. No. 9972 of 1905, to Wood. French Letters Patent No. 356,076 of 1905, to Wood. No. 404,795, of 1909, to Soulier. _ VIII. Defendant, in further denial of invention by the — said Benedictus of any of the said alleged improvements, avers that in view of the state of the art as it existed at and prior to his, application for the said letters patent, and at and prior to his pretended invention thereof, the said al- leged improvements did not, nor did any of them, constitute, contain or embody any patentable subject matter. In proof of such prior state of the art, defendant will refer, among other matters, to the prior letters patent listed in ‘the last “preceding paragraph. ee 15 IX. Defendant, further answering, avers that the de- scription or specification filed by the said Benedictus in the {fol. 21] Patent Office, in making his application for the said letters patent, was defective and misleading and did not set forth the manner and process of making | constr ucting, com- pounding and using his said alleged i impr ovements in suffi- ciently full, clear and exact terms as to enable a person skilled in the art to which they appertain to make, construct, compound and use tlie same. XT. Defendant, further answering, avers that for the _purpose of deceiving the public, the description or specifi- cation filed by the said Benedictus in the Patent Office, in making his application for the said letters patent, was made to contain less than the whole truth relative to his pretended invention or discovery. . XII. Defendant denies the equity of the Said bill of com- plaint; it denies that the plaintiff has any right to any in- Junction, preliminary or perpetual, or to any accounting of damages or profits, or to the costs of this suit, or to any relief whatever against this defendant: and it further denies that the said bill ef complaint states any good cause of action. All.of which matters and things defendant is ready to prove and maintain as this Honorable Court shall . direct, atid it humbly prays that it be hence dismissed with its reasonable costs and charges in this behalt most wrone- fully sustained. Christy & Christy, Solicitors for Defendant. James C. Bradley, C. H. Biesterfeld, Marshall A. Christy, Of Counsel. [ fol. 22] In Unirep States Districr Courr STIPULATION AS-TO CHANGE OF Name—Filed December 9, 1929 It is hereby stipulated by and between the solicitors for the i1espective parties to the above-entitled suit that the name of the defendant was changed pursuant to provisions of the laws of the State of Delaware from ‘Pittsburgh Safety Glass Company”’ to ‘‘Duplate Corporation’? subse- quent to the filing of the bill of complaint herein, and may be changed of record in this case to Duplate Corporation, oie a 16 and that an order. to the foregoing effect may be entered without further notice to either party. » Brown & Critchlow, Solicitors for Plaintiff. Mar- shall A. Christy, Solicitor for Defendant... - —_————— -— ORDER And now, this ninth day of December, 1929, it is so ordered. F.. P. Schoonmaker, United States District Judge. [fol. 23] In Unitep States District Court [Title omitted] OrpEr As TO SUPPLEMENTAL BILL OF Compiart—Filed Octo- ber 7, 1931 — This case came on to be meas on plaintiff’s motion for leave to file the attached supplemental bill, and, counsel for defendants not objecting thereto, it is Ordered that said supplemental bill be filed. F’. P. Schoonmaker, United States District Judge. October 7, 1981. Counsel for the defendants’ Pittsburgh Plate Glass Com- pany and Duplate Corporation does not object to the entry of the attached order granting leave to Triplex Safety Glass Company of North America to file a supplemental bil! against Duplate Corporation and Pittsburgh Plate Glass Company in the cause now pending before this Court and marked in Equity as No. 2295. : Dated October 6, 1931. ‘Marshall A. Christy, Appearing Specially Only for Pittsburgh Plate Glass Company. [fol. 24] In Unirep States District Court SUPPLEMENTAL BILL or CompLaint—Filed October 7, 1931 To the Honorable the Judges of the District Court of the United States for the Western District of Pennsylvania: The Triplex Safety Glass Company of North America, a corporation incorporated under the laws of the State of Delaware, having its principal office in Clifton, in the State of New Jersey, the plaintiff in the original bill of complaint filed in this cause against Duplate Corporation, by way of supplement to said original bill of complaint, with leave of Court first had and obtained, files this its supplemental bill of complaint in this cause against Pittsburgh Plate Glass Company, and alleges as follows: First. That Pittsburgh Plate Giass Company is a corpo- ration of the State of Pennsylvania, having its principal office and place of business in the City of Pittsburgh, in the State of Pennsylvania and is an inhabitant and resident of the Western District of Pennsylvania. . Dy aa) Second. On information and belief that Dupont Viscaloid Company is a corporation of the State of Delaware, having its principal office in the City of Wilmington, in the State -of Delaware and is not an inhabitant or resident of the. Western District of Pennsylvania and therefore is not made | a party hereto because it is not within the jurisdiction of this Honorable Court. See aera ea ae Third. That Duplate Corporation is -a corporation of Delaware having an office and a regular and established place of business in the City of Pittsburgh, in the State of [fol.25] Pennsylvania, within the Western District of Pennsylvania and is made a party hereto because it is the ° defendant named in the original bill, but no other or fur- ther relief is prayed for herein against Duplate Corpora- — tion than the relief prayed against it in said original bill of complaint. - Fourth. That this is a supplemental suit in equity aris- ing under the Patent Laws of the United. States for the infringement of Letters Patent of the United States No. 2—767-768 i Diget= . > ’ wy ae _ es ee SS ES eee Sak aes a “se 18 1,182,739, dated May 9, 1916 and granted to Edouard Ben- edictus. Fifth. That heretofore and on or about the thirty-first day: of December, 128, plaintiff filed its original bill of complaint in this "Honorable Court against the defendant, Duplate Corporation, in which original bill of complaint plaintiff charged infringement of claim 12 of said Letters Patent of the United States No. 1,182,739 and prayed for ‘an injunction and accounting for damages and profits, all of which is more particularly set forth in said original bill of complaint filed in the office of the clerk of this court on the thirty-first day of December, 1928, to which the plain- tiff begs leave to refer with the same effect as if the same were set forth here in full; that defendant, Duplate Corpo- ration, duly filed its answer in this Court on March 4, 1929; that the issues thus joined by the original bill of complaint and defendant’s answer thereto, came’on to be heard before the Honorable F. P. Schoonmaker, United.States District Judge of this court; that an interlocutory decree was en- tered therein on December 9, 1929, adjudging said United States Letters Patent No. 1,182,739 valid and infringed by the defendant, Duplate Corporation, and enjoining said de- fendant, Duplate Corporation, from further infringement | of said letters patent and ordering an accounting before G. Dixon Shrum, Esq., as Special Master, to determine the { fol. 26] damages and profits arising out of the defendant, Duplate Corporation’s, infringement; that defendant, Du- plate Corporation, appealed from said decree to the Cir- cuit Court of Appeals for the Third Cireuit; that said ap- peal was heard and that said decree was in all respects affirmed by the said Cireuit Court of Appeals for the Third Cireuit; that thereafter the hearings on the accounting * before the said G. Dixon Shrum, Esq., were commenced on May 11, 1931, continued from time. to time and are still pending. « Sixth: Plaintiff further avers that at such hearings before said Special Master, plaintiff first learned the fol- lowing facts which were unknown and could not by reason- able diligence have been known t or to any of its officers or directors before such heari On or about December Glass Company, and gs ~ 1927, soba Pittsburgh Plate Dupont Visealoid Company, en- Mo SDB PL CAR hs ee 19 tered intoa written'agreement, the pertinent parts of which are hereinafter summarized. 3 The agreement recites that the parties thereto (Pitts- burgh Plate Glass Company and Dupont Viscaloid Com- | pany) ‘‘desire to enter into a joint enterprise having for its object the manufacture and sale of non-splintering glass’’; that the parties will cause to be incorporated a Delaware corporation referred to in said agreement as ‘Glass Company”’ which shall havea $1,000,000 authorized capital stock; that each of the parties avill subscribe $100,-. 000 of the authorized issue and also will subscribe for the balance of said capital stock when and as it may be re- quired; that Pittsburgh Plate Glass Company and Dupont | Viscaloid Company would always vote their respective stockholdings in such manner that three of the six members of the board of directors of the proposed Glass Company would be representatives of Pittsburgh Plate Glass Com- [fol. 27] pany and the remaining three would be representa- tives of Dupont-Viscaloid Company; that the board of di- rectors of the proposed Glass Company would vote at meet- ings of such board so that the president and general man- ager of the Glass Company should always be representa-. tives of the Pittsburgh Plate Glass Company and that the chairman of the board of directors of the Glas& Company should always be a representative ofthe Dupont Viscaloid Company. The agreement also contains various provisions relating to the lease or acquisition of a plant site, the erec- tion of a plant, the number of directors and the manner of electing them; that the Glass Company shall have the non- exclusive right to use patents, formule, processes ‘and in- ventions owned by Dupont Viscaloid Company and/or Pittsburgh Plate Glass Company free from the payment of any royalty; that upon the acquisition of any United States or foreign patents by either Dupont Viscaloid Compafiy or Pittsburgh Plate Glass Company, the proposed corporation shall be notified and shall have certain rights to: acquire such patents, or acquire rights thereunder; that the cer- _tificate of incorporation sha]l be acceptable to counsel for the Dupont Viscaloid Company and counsel for tlie Pitts- burgh Plate Glass Company; that the Dupont Viscaloid Company and Piftyburgh Plate-Glass Company aeree not: to sell, assign or-hYpothecate their respective stockhold- ings in the proposed company without first offerine them ' to eachother; that to the end that the Pittsburgh Plate ie ; ee CORR . itis: Bay NEA A Ed ae Glass Company and the Dupont Visealoid Company shall have and enjoy the maximum benefits and profits from the ‘joint undertaking, the proposed company shall purchase from the Dupont Viscaloid Company all pyroxylin plastics and from the Pittsburgh Plate Glass Company all polished plate glass and/or window glass and from either or both [fol. 28] all other basic materials which shall be needed or used in the business of the proposed company. Seventh. Plaintiff further avers that on December 28, 1927, pursuant to said agreement, Pittsburgh Plate Glass Company, acting in conjunction with Dupont Viscaloid Company caused to be organized under the laws of the State of Delaware, Pittsburgh Safety Glass Company, the name of which was subsequently changed to.Duplate Cor- poration, constituting the joint enterprise provided for in said agreement of Deeember 14, 1927. Fighth. That the board of directors of said joint enter- prise, now known as Duplate Corporation, consisted of six members, three of whom were members of the board of di- rectors of Pittsburgh Plate Glass Company and the re- maining three were members of the board of directors of Dupont Viscaloid Company ; that the president of said joint enterprise was the president of Pittsburgh Plate Glass Company and the chairman of the boar® of directors of said joint enterprise was the aati, By of Dupont Viscaloid ‘Company. That during the first few months of the existence of said joint enterprise, now known as Duplate Corporation, the printed order forms of Pittsburgh Plate Glass Company were used as the printed order forms of Duplate Corpora- tion; that the printed records and forms of Pittsburgh Plate Glass Company designated said joint enterprise, now known as Duplate- Corporation, as ‘*‘The Laminated Glass Department’? of Pittsburgh Plate Glass Company; that said joint enterprise, now known as Duplate Corporation, used as its general offices the general offices of Pittsburgh Plate Glass Company without the payment of any-rental therefor; that the bookkeepers employed and paid by Pitts-° [fol. 29] bargh Plate Glass Company made entries in and > in other respects kept the books of said joint enterprise, now known as’ Duplate Corporation; that for the period of more than a year after the said joint enterprise, now known 21 as Duplate Corporation, commenced business, the said joint enterprise occupied a part of one of the factories of Pitts- burgh Plate Glass Company, free from the payment of any rental therefor; that the Pittsburgh Plate Glass -Company sranted preferential prices for plate glass to said joint enterprise, now known as Duplate Corporation, said prefer- ential prices being substantially under the market price charged other ang unrelated customers; that the officers and employees.of Pittsburgh Plate Glass Company and par- ticularly. those in charge of the sales department of Pitts- burgh Plate Glass Company, determined and established the prices to be charged by said joint enterprise, now known as Duplate Corporation, for its.product; that the Pitts . burgh Plate Glass Company, under the nominal title of ‘Sales Agent’? sold the product of said-jeint enterprise, now knqwn as Duplate Corporation, to the consumers thereof; that the joint enterprise, now known as Duplate Corporation, paid a selling commission to Pittsburgh Plate Gilass Company and that the amount of that selling’ com- mission was the subject of an agreement, verbal or other- wise, between the Pittsburgh Plate Glass Company and Dupont Viscaloid Company; that the prices charged the consumers of the strengthened glass manufactured and sold by said joint enterprise, now known as Duplate Corpora- tion, were not only szbject to secret rebate agreements be- tween Pittsburgh Plate Glass Company and some of said consumers, but the Pittsburgh Plate Glass Company insti- tuted a cut-price policy and in other respects so negligently - and recklessly conducted the business of said joint enter- (fol. 30] prise, now known as Duplate Corporation, that not only the original investment of $1,000,000 ‘in said joint, enterprise, but also the profits earned by said joint enter-- . prise, now known as Duplate Corporation, have been wasted and dissipated with the result that on the face of. the accounting heretofore filed by the said Duplate Corpo- ration with the Special Master appointed herein, the said joint enterprise, now known as Duplate Corporation, is now insolvent; that in or about February 1931 Pittsburgh - Plate Glass Company, either through a stock purchase from said Dupont Visealoid Company, or otherwise, acquired all of the issued capital stock and through such stock owner- ship is now the owner of all the assets of said joint enter- prise, now known as Duplate Corporation. TOOT RE hn, Renae i a ital Se ea aes ETISEIRE SE CRY rm eA RECN NS PERC 22 Ninth. This plaintiff further avers that Pittsburgh Plate Glass Company has since on or about December 28, 1927, caused to be carried on the manufacture of the strength- ened glass complained of in the original bill of complaint filed herein and decreed by this Court to be an gees ment of said United States Letters Patent No. 1,182, and that Pittsburgh Platé Glass Company inatigated, | in- _ itiated and contributed to the said infringing manufacfure of said strengthened glass for its own private profit, benefit and advantage and to that end caused to be incorporated the joint enterprise, now known as the Duplate Corpora- tion, in an attempt.to carry on said infringing manufacture, or cause the same to be carried on without subjecting itself | to liability therefor; that at all times since December 28, 1927, said Pittsbur gh Plate Glass Company, as one of the parties to the joint enterprise, now known as Duplate Cor- poration, had and now has the power to control, and did - and, now does control and operate said joint enterprise, now known as the Duplate Corporation. [fol.31] Tenth. This plaintiff further avers that the said joint enterprise, now known .as Duplate Corporation, is not able to and/or will net be able to respond or pay any damages or profits which may be awarded against it and that the decree heretofore entered in the original suit against the Duplate Corporation, awarding the plaintiff a ‘perpetual injunction and profits and damages, is not and will not be effective unless this Court also directs that a perpetual injunction issue against the said defendant, Pittsburgh Plate Glass Company and unless this court also directs that said Pittsburgh Plate Glass Company is re- sponsible for and must pay to this plaintiff the profits which have accrued,to the said, joint enterprise, Duplate Corporation, from the infringing of said Letters Patent of the United States, No. 1,182,739, as well as the damages _ suffered by the plaintiff by reason of the‘aforesaid infring- ing manufacture by the said joint enterprise, now known as Duplate Corporation; that this plaintiff, unless the re- lief hereinafter prayed for is granted will not be afforded a coniplete and adequate remedy and will not be protected in its exclusive rights and privileges in, to and under said Letters Patent of the United States No. 1,182,739, as de- - creed by this Court in the original] suit herein, Sea wea ; ois Peas Pare eR TS ~ hasta Seay | ‘ 23 Wherefore, plaintiff prays: 1. That a writ of subpena ad respondendum issue out of and under the seal of this Honorable Court, directed to the defendant, Pittsburgh Plate Glass Company, and com- manding it on a day certain therein to be named, to appear and answer this bill-of complaint (but not under oath, an answer under oath being hereby expressly waived) and to abide by and perform such orders and decrees as to this Court shall seem meet and may be required by the prin- ciples of equity and good conscience. [fol.32] 2. That the defendant, Pittsburgh Plate Glass P Company be adjudged responsible for the acts and doings a of Duplate Corporation; and be compelled to account for e and pay to the plaintiff all profits, gains and savings made by said Duplate Corporation and itself and the ac- tual damages suffered by the plaintiff from the infringe- ment by Duplate Corporation and. Pittsburgh Plate Glass Company, of said Letters Patent of the United States No. 1,182,739. | : 3. That a writ of injunction issue: froni and under. the seal of this Honorable Court perpetually enjoining and re- : straining the defendant, Pittsburgh Plate Glass Company, e and each of its respective officers, agents, servants, aftor- f neys and employees, from further making, selling or using, : or causing to be made sold or used, or assisting others and particularly Duplate Corporation from making, selling or using, any strengthened glass embodying any of the im- provements described and claimed in Letters Patent of the United States No. 1,182,739, in violation of the exclu- sive rights of the plaintiff thereunder and in infringement of said Letters Patent of tlie United States No. 1,182,739, as heretofore decreed by this Honorable Court. apes PIT Eee PGR ce Epp erate Sy es a a, e 4. That the plaintiff may have the- benefit of the said original suit heretofore brought against the Duplate Cor- poration and may also have the benefit of all proceedings heretofore had therein against the defendant, Pittsburgh Plate Giass Company; and may have the same relief against the said Pittsburgh Plate Glass Company as plain- . tiff hd or could have had against the said Duplate Cor- L poration. | a a a ty “>. - = Gece NR Raita ee alee A wa r andes = 94 5. That the said Pittsburgh Plate Glass Company be de- creed to pay the costs of this supplemental suit, as well as the costs of the original suit. [fol.33] 6. That this plaintiff have such other and fur- ther relief as the circumstances of the case may require. Triplex Safety Glass Companty of North America, by Sydney W. Caulfield, Vice-President. Brown & Critchlow, Attorneys for Plaintiff, 1526 Farm- ers Bank Building, Pittsburgh, Pennsy Ivania. William B. Greeley, Drury W. Cooper, Counsel. Duly sworn to by Sydney W. Caulfield. Jurat omitted in printing. [fol. 34] In Unrrep States District Court ANSWER OF PiTTsBURGH PLATE Guass GClompany—F iled _ October 21, 1931 The answer of Pittsburgh Plate Glass Company, joined herein as party defendant by supplemental bill of com- plaint, to the said supplemental bill of Triplex Safety Glass Company of North America, plaintiff. I. Defendant admits the corporate existence and the re- ~J spective domiciles of the respective corporations named in paragraphs first, second and third - said supplemental bilt of complaint. II. The averments of nee fifth of the said sup- plemental bill are admitted. III. With respect to the averments of ‘paragraph sixth of the said supplemental bill, this defendant admits that on or about December 14, 1927, it entered into a certain written agreement with Dupont Viscoloid Company, named in said supplemental bill, but denying the averments of the said paragraph sixth as therein made, this. defendant re- fers to the said written agreement bearing date December 14, 1927, ready in court to be produced, as setting — each and all of the provisions thereof. IV. Defendant admits the averments of paragraph sev- enth of said supplemental bill. i ~~ wie eval seS ne 25 V. Answering the averments of paragraphs eighth and ninth of the said supplemental bill, this defendant denies the same, excepting only such as may be comprehended within the following statement, which this defendant avers to be correct: As admitted in the last above paragraph IV, this defendant jointly with the said Dupont Viscoloid Company in said bill of: complaint mentioned organized [fol. 35] and effected incorporation of ‘the said Duplate Corporation in said supplemental bill mentioned, under the original name of Pittsburgh Safety Glass Company. Of the capital stock of said corporation this defendant owned one-half, and the-said Dupont Viscoloid Company owned the other half. Such stock ownership continued until on or about January 1, 1931, at which time this defendant pur- chased the entire stock ownership of the said Dupont Vis- coleid Company, and since said last mentioned date this defendant has been the owner of the entire capital stock of said Duplate Corporation. Prior to January 1,- 1931, the operations of the said Duplate Corporation were con- trolled jointly by this defendant and the said Dupont Vis- ” coloid Company. Since January 1, 1931, this defendant has been and is now in sole control of the operations of said Duplate Corporation. This defendant has not manu- factured or used any so-called. strengthened glass such as is mentioned in the said supplemental bill, but it has acted as selling agent and in that capacity only has sold the product of the said Duplate Corporation, receiving for its services a commission of a small percentage of the actual selling price. , This defendant denies each and every averment, in said bill of complaint contained or implied, as to any want of good faith, of concealment of relation, or desire or intent to avoid responsibility, in and about the organization and incorporation of the said Duplate Corporation, and in carrying on the business of the said Duplate Corporation in the manufacture and sale of its product, and it further denies that the business of the séid Duplate Corporation was ever carried on as a branch or department of this defendant, or otherwise than as a distinct and separate business of the:said Duplate Corporation, as in fact it was. On the contrary, this defendant avers the fact to be, that [fol. 36] the said Duplate Corporation was originally or- ganized and incorporated, and has at all times since con- . anere s RP ic " i : il PONENT HONE ITNT Sa ace BS a eS Syte meq REE SIE en fenpore ries wee goa sy ROT SR, OPE EVA, « irene estes cess caine i tegsesse Fiseces tessa Jo 26 tinued in business, in good faith and for valid and lawful commercial reasons. Defendant further denies that, ex- cept as hereinabove stated, it has manufactured, sold or used, or instigated, initiated, or contributed to any manu- facture, sale or use, or caused to be carried on any manu- facture, sale, or use, of any strengthened glass such as is described and claimed in Létters Patent No. 1,182,739, men- ‘tioned in said supplemental bill. And defendant further denies that at any time during the existence and operation of said Duplate Corporation “the facts in this paragraph ‘hereinbefore stated were unknown to the said plaintiff, as well as that they could not have been discovered by it by _ reasonable diligence. ¢ VI. Defendant’ denies each and all of the allegations of fact and conclusions set forth -in paragraph tenth of said supplemental bill. This defendant denies the equity of the said bill of com- plaint; it denies that the plaintiff has any right to any in- ‘junction, preliminary or perpetual, or to any accounting of damages or profits or to the costs of this suit or to any relief whatever against this defendant; and it further de- nies that the said bill of complaint states any good cause of action. Pittsburgh Plate Glass Company, by Christy, Christy & Wharton, Solicitors. Marshall A. Christy, James C. Bradley, of Counsel. ; Pittshurzh, Pennsylvania, October 20, 1931. [fol.37] Ix Unirep States District Court ror THE WEst- ERN District oF PENNSYLVANIA In Equity. No. 2295 TripLex Sarety Guass Company or NortH AMERICA, oe Plaintiff, v. PirtsnurGH Sarety Guass Company, Defendant Present: Honorable Frederic P. Schoonmaker, United States District Judge. IntTERLOcUTORY DecreE—Filed December 9, 1929 This suit came on at this term of court and was tried on final hearing and argued and submitted by counsel for both 27 parties; and thereupon, upon consideration and determina- tion thereof by this Court, it is Ordered, Adjudged and Decreed as follows: 1. That letters patent named in the bill of complaint, to wit, Letters Patent of the United States No. 1,182,739, granted.on May 9, 1916, on the invention of and to Edouard Benedictus for Manufacture of Strengthened Glass, is good and valid in law as to. claim numbered 12 thereof and that title to said letters patent is vested in plaintiff, Triplex Safety Glass Company of North America. “. That the defendant, Pittsburgh Safety Glass Com- pany, has infringed upon the said Letters Patent of the [fol. 38] United States No. 1,182,739 as to claim numbered 12 thereof and has violated the exclusive rights of the plain- tiff thereunder. 3. That a writ of injunction, in accordance: with the prayer of the bill of complaint, directed to the defendant, Pittsburgh Safety Glass Company, be issued out of: and under the seal of this Court perpetually enjoining and re- straining defendant, Pittsburgh Safety Glass Company, its officers, agents, servants, attorneys and employees, from further making or selling or causing to.be made or sold strengthened glass embodying the invention set forth and claimed in claim numbered 12 of said Letters Patent of the United States No. 1,182,739. . 4. That the plaintiff recover from the defendant the profits, gains-and advantages which the said defendant has received or made or which may have arisen or accrued to it by the manufacture and sale of strengthened glass in in- -_ fringement upon and violation of the invention of claim numbered 12 of said Letters Patent of the United States . No. 1,182,739. 0. That the plaintiff recover from the defendant the dam. ’ ages resulting to plaintiff from the infringement by the de- _ fendant of claim numbered 12 of said Letters Patent of the United States No. 1,182,739. 6. That this case be referred to G. Dixon Shrum, of Pittsburgh, Pa., as a Special Master of this court, who is hereby appointed to- ascertain, take, state and report to the Court an account of the quantity of strengthened glass described and claimed in claim numbered 12 of said Letters 7 s Hae ap be cramer Maen he OL Sha ees tur oe ie SEAT OL serena Sy AG SRA ae Rt we be cages a ar PEL SERTIN NNR CPOE oI RETA REE RRS ITN 28 Patent of the United-States No. 1,182,739 made, used or sold by defendant and also the gains, profits and advan- tages which the defendant has received or which have arisen [fol. 39] and accrued to it from infringement upon the said exclusive rights of plaintiff under said letters patent as to claim numbered 12 thereof, and also the damages which the plaintiff has suffered because of defendant’s said. infringe- ment upon claim numbered 12 of said Letters Patent of the United States No. 1,182,739. ‘ 7. That the plaintiff on such accounting shall have the right to cause the examination of the officers, servants, agents and employees of defendant and also to examine other witnesses and to cause the production and examina- tion of the books, vouchers, records and documents of the defendant and to have the necessary process of the Court ‘to compel such attendance and production of books, vouch- ers, records and documents of defendant before the Master at such times and places as the Master shall from time to - time direct. a . That the plaintiff shall recover from the defendant the’ Pe expended by it in this court and that it. shall have judgment and execution of this court against the defendant for said costs. F. P. Schoonmaker, United States District Judge. SS -[fol. 40] In Unitrep States District Court ror THE WEsT- ERN District or PENNSYLVANIA In Equity. No. 2295 TripLex Sarety Guass Company or NortH AMERICA v. | DvuPpLATE CoRPORATION AND PiItTsBURGH PLATE GLass CoMPANY InTERLOCUTORY DecreE Upon SuppLEMENTAL BILL AND Answer—Filed December 5, 1931 . And Now, to wit, December 5, 1931, this cause having come on to be heard upon: the supplemental bill against the Pittsburgh Plate Glass Company and the answer of Stone | i Ra cc na kk RON TT in int alias a eee NE 29 Pittsburgh Plate Glass Company thereto, it is, by consent, Ordered, Adjudged and Decreed as follows: 1. That the said supplemental defendant, Pittsburgh Plate Glass Company, has jointly with the above-named defendant, Duplate Corporation, and by its own acts as well, infringed upon the Letters Patent of the United States here in suit, No. 1,182,739, as to claim 12 thereof, heretofore adjudged to be valid by this Court, and has violated the - exclusive rights of the plaintiff thereunder. 2. That a writ of injunction, in accordance with the ‘prayer of the said supplemental bill of complaint, be issued out of and under the seal of this Court perpetually enjoin- ing and restraining the said defendant, Pittsburgh Plate Glass Company, and each of its respective officers, agents, (fol. 41] servants, attorneys and employees from further making, selling or using, or causing to be made, sold or . used, or assisting others, and particularly said Duplate Corporation, in making, selling or using any strengthened glass involving the invention set forth in claim 12 of said Letters Patent of the United States No. 1,182,739, in viola- tion of the exclusive rights of the plaintiff thereunder. 3. That the plaintiff recover from said supplemental de- fendant, Pittsburgh Plate Glass Company, the profits, gains and advantages which the said supplemental defendant has received or made or which ‘have accrued to it from its said infringement of the said letters patent, together with the damages suffered by the said plaintiff from such infringe- ment, and that with respect to any and all recoveries ad- judged against the said Duplate Corporation by way of profits, damages, costs or otherwise, the said supplemental defendant Pittsburgh Plate Glass Company and the said Duplate Corporation shall be jointly and severally liable therefor. . 4. That the Special Master heretofore appointed by this Court, G. Dixon Shrum, Esquire, of Pittsburgh, Pennsyl- vania, shal? in the accounting proceedings now pending be- fore him ascertain, take, state and report to this Court an account of the quantity of strengthened glass described and claimed in claim 12 of said Letters Patent of the United - States No. 1,182,739, made, used or sold by the defendant, Pittsburgh Plate Glass Company, and also the gains, profits and advantages which the defendant, Pittsburgh Plate | Pw aoaattltinieiniomminntamteman ea Sat tL tg emisegsite aie Glass Company,-has received or which have accrued to it from said infringement upon the exclusive rights of plain- tiff under claim 12 of said letters patent, and also the dam- ages which the plaintiff has suffered because of the said [fol. 42] supplemental defendant’s infringement upon claim 12 of said Letters Patent of the United States No. 1,182,739. 5. That the plaintiff on such accounting shall have the right to cause the examination of the officers, servants, agents and employes of Pittsburgh Plate Glass Company and also to examine other witnesses and to cause the pro- duction and examination of the books, vouchers, records and documents of the defendant, Pittsburgh Plate Glass . Company, and shall have the necessary process of the Court to compel such attendance and production of books, vouch- ers, records and documents of said defendant, Pittsburgh Plate Glass Company, before the Master at such times and places.as the Master shall from time to time direct. ' 6. That the said supplemental defendant, Pittsburgh . Plate Glass Company, shall pay the costs arising under said supplemental bill and answer and shall also be jointly and severally liable with. said Duplate Corporation for the costs heretofore decreed against said Duplate Corporation. F’. P. Schoonmaker, United States District Judge. The foregoing decree is consented to. ; Marshall A. Christy, Solicitors for Defendant, Pitts- burgh Plate Glass Company. Brown’ & Critch- low, Solicitors for Plaintiff, Triplex Safety Glass Company of North America. [fol.43] In Unrirep Srates District Court [ Title omitted ] RELEASE oF Bonp—Filed December 16, 1931 In consideration of the assumption by Pittsburgh Plate Glass Company of all liability which may be adjudged against defendant, Duplate, Corporation in this case, the plaintiff, Triplex Safety Glass Company of North Ameri ica, hereby releases Maryland Casualty Company, surety, from all obligations assumed by it by the bond filed in this case 5. bi ne Tal et & JM ae ine oie ne on December 10, 1929, and consents that an order may be entered cancelling the obligation of said surety. December 15, 1931. eee ; Marshall A. Christy, Solicitors for Defendant.. Wil- liam B. Greeley, Counsel for Plaintiff. . In Unitep Stares District Court OrvER Discuarcinc Surety on Bonp—Filed December 16, 1931 And Now, to wit, December 16, 1931, on reading the at- tached consent of the plaintiff to the release of Maryland Casualty Company, surety on the bond approved in this case on December 10, 1929, it is Ordered that the said surety, Maryland Casualty Company, be and hereby is re- leased and discharged from all obligations under the said bond. F’. P. Schoonmaker, United States Judge. [fol.44] In Unrrep Srartes District Court FoR THE : Western District or PENNSYLVANIA In Equity. No. 2295 TrmpLex Sarety Guiass Company or Nortu AMERICA, Plaintiff, ws. 2° Dup.ate Corporation, Defendant Accounting Proceeding Before the Master _ Pittsburgh, Pa., July 28, 1930. The parties met at the office of Brown & Critchlow, solicitors for plaintiff, at 1526 Farmers Bank Building, on the above date at 9 o’clock Eastern Standard Time, pur- suant to notice. Present: The Master, G. Dixon Shrum, Esq.; Jo. Baily Brown, Esq., for plaintiff; Marshall A. Christy, Esq., for defendant. ; 31 aa ESTE EEA HLT - EAU MOS ROR Happ PRAISES cette PERLE a porate ene: Me anemone onic. 8: ee ANe L Wiisrtisicstesiecic, évemsiyi ‘ WBS. Qo . — ’ ek eds Se ea ? 32 Mr. Brown presented to the Master a notice with serv- ice acknowledged thereon by solicitors for defendant of the motion for an order requiring defendant to file an account. ’ Mr. Christy stated that he had no objection to the entry of the order, except that he wanted more time and asked that the return day be fixed as September 15th. This was ac- - cepted by the Master, and not objected to by solicitors for plaintiff, and thereupon the Master entered the following order: : [fol. 45] Orver For DEFENDANT TO Avene AND FILe STATEMENT OF ACCOUNT, ETC. To Duplate Corporation (formerly Pittsburgh Safety Glass Company) Defendant: Pursuant to the interlocutory decree entered in the above case on December 9, 1929, you are hereby directed to ap- pear before me at the office of Brown & Critchlow, 1526 Farmers Bank Building, on the Fifteenth day of Septem- ber, 1930, at Nine O’cl@ck in the morning, Eastern Stand- ard Time, and then and there to bring in and file an account certified by the oath or oaths of such of your officers or agents as shall have the most certain and full knowledge of the matter, setting forth with regard to all strengthened glass embodying the invention described’ and claimed in Claim 12 of U. S. Patent No. 1, 182 ,739, the following: 1. The total amount of such infringing glass manufac- tured, sold, or used by or for you down to the time of filing of said account; and . In debit and eredit form all gains, profits, and ad- : sma which you have derived, received or made by 1 Tea-— son of the said manufacture, sale or use. And it is further ordered that all books, papers, voucti- ers, and other documents relating to the matter at issue, and particularly those in which were entered any data con- cerning the cost of manufacture, extent of sale, or use of such glass need not be produced at the time and place herein specified, but shall be kept intact by you and remain in your possession subject to further order. Adjourned subject to call. . entetine em ge te a ee rl ne tee ee ee ae ee 33 | fol. 46} Pittsburgh, Pa., September 22, 1930. The parties met at the office of Brown & Critchlow, 1526 Farmers Bank Building, at nine o’clock Eastern Standard Time, pursuant to call of the Master. Present: The Master, G. Dixon Shrum, Esq.; Jo. Baily Brown, Esq., for plaintiff; James C. Bradley, Esq., for de- fendant. This meeting was held in place of the one previously or- dered for September 15, by agreement of counsel and pur- suant to informal direction of the Master. Mr. Bradley produced a statement of account on behalf of the defendant as called for by the Master’s order at the ' meeting of July 28, 1930, which was offered as defendant’s ‘statement of account and received and so marked by the. Master. ms A copy of this account was at the same time served on counsel for plaintiff. Mr. Brown moved the Master for an adjournment to a later date, subject to-call of the Master, so that plaintiff’s accountants and attorneys may have an opportunity to ex- amine this account to decide upon cross-examination or other steps that may be deemed advisable’ by them after they have had an opportunity to study it. Mr. Bradley stated that he had no objection to such ad- journment and the Master thereupon. so ordered, stating that he would give the parties ample notice of the next meeting and of the witnesses and/or books, papers, ete., if - any, to be produced at that time by the defendant for ex- amination by the plaintiff. , Thereupon the meeting was adjourned.. [ fol. 47] [Title omitted } Pittsburgh, Pa., October 15, 1930. The parties met at the office of Pittsburgh Plate Glass Company, 2200 Grant Building, at eleven o’clock Eastern Standard Time, pursuant to eall of the Master. 3—767-768 = PEDERI TERIOR Mens er ee na BP eae SARE Cg TRIE NITY MEA! ORF AI ORO et A * HRT PET HD ; ania wiaini sistas ih is chi gt & es Se 34 Present: The Master, G. Dixon Shrum, Esq. ; Ambrose ~ L. O’Shea, Esq., for plaintitt James C. Bradley , Esq., for defendant. This meeting is held pursuant to peor between counsel and with the consent of the Master. STIPULATION AS TO CHECKING OF ACCOUNT, ETC. It is stipulated that the plaintiff shall be given the oppor- tunity of checking the account heretofore filed by the de- fendant against the books of the defendant corporation, and file in the case of a report of such check up, and for that purpose the firm of Lybrand, Ross Brothers & Mont- gomery, a firm.of certified public accountants are appointed for general sipervision of such checl up. : ~ It is further stipulated that the expense of this check up shall be borne in equal shares by the plaintiff and de- -fendant, previded, that the defendant’s share of this ex- ; neo Ge exceed $1000. The firm of Lybrand, Ross Brothers & Montgomery shall give instractions to the - [fol.'48] subordinates who shall be employed on the check up and who shall be furnished by the parties hereto as. they may deem necessary for the proper checking up of the account. This stipulation, however, is entered into without prejudice to the rights of either party hereto to turther examination of the books if they so see fit. It is further under stood that the parties hereto reserve all rights to objections as to the materiality, competency or - relevancy of the report to be filed as a result of this, check eo | , - Thereupon the meeting was adjourned subject to the call 2 ‘of the Master for further hearings. ‘Pittsburgh, Pa., April 17, 1931. ; The, parties met at 1518 Farmers Bank Building, Pitts- ~. + burgh, Pennsylvania, at ten o’clock Eastern Standard Time, pursuant to the following notice : PRGA 9 BEE A I a en 35 ‘‘NoticEe or AccéuntTING Proceepincs BEFORE G. Dixon SHrvM, Specia, Master Pittsburgh, Pa., April 13, 1931. To Marshall A. Christy, Esq., Solicitor for Defendant. Jo. Baily Brown, Esq., Solicitor for Plaintiff. William F. Marsh, Resident Partner Lybrand, Ross Bros. & Mont- gomery Auditors and Accountants... ~ GENTLEMEN : Please take notice that at my office, 1508 Law & Finance Building, Pittsburgh, Pennsylvania, a meeting of Counsel [fol. 49] is called for 10:00 A. M., Friday, April 17th, 1931 in the above entitled case, at which time the plaintiff will be called upon for its report of the check-up of the account heretofore filed by the Defendant against the books of the Defendant Corporation, under. the general supervision 6f Lybrand, Ross Bros. & Montgomery, Certified Public Ac- countants, pursuant to ‘stipulation of Counsel October 15, * 1930. . : Yours very truly, G. Dixon Shrum, Special Master.”’ ‘ Present: G. Dixon Shrum, Esq., Special Master; Jo. Baily Brown, Esq., for the plaintiff; Marshall A. Christy, lusq., for the defendant; William F. Marsh, Resident Part- ner, Lybrand, Ross Bros. & Montgomery, Auditors and Ac- countants: a, j This meeting was held at. the office of Brown & Critch- low, 1518 Farmers Bank Building, instead of at the office of the Special Master, pursuant to agreement of the parties. The Master stated that he called upon Mr. Marsh, resi- dent partner of Lybrand, Ross Bros. & Montgomery, ‘for - the report of the check-up which was being made under the supervision of that firm, and that Mr. Marsh reported that on April 1, 1931, he had sent to Mr. O’Shea, counsel for the Triplex Company, two copies of said report, which was: very voluminous. — By Mr. Brown: I understand that the purpose of this hearing is to expedite the proceeding ‘and to find out when a further hearing can be held. EF am instructed by Mr. [fol.50] O’Shea to state to the Master and counsel for a tatiairn — — Bi i A ca oO re a iar sn etka RN AST BS esi ee et Be eee ET SE PEP q CREEPS WE Gat epee ge angie pats a . , PERE Re FBT LIRR A SO RIN Ahi A MRS ete itis: a EG ae bk Brak Tay et A 36 defendant that he has been continuously engaged on the re- port since its receipt from the accountants; that he regards. this report as a part of his proofs in the case; that there- fore he feels that he must carefully study it before offering it in evidence; that he is anxious to proceed with the case as soon as possible ; and that as now advised he thinks that he will be ready to commence taking testimony and to put _ in his entire case—subject td availability of witnesses— . by a date commencing May’11th. (By agreement of the parties the meeting was adjourned until Monday, } May 11, at the office of Brown & Critchlow, 1518 Farmers Bank Building, Pittsburgh, Pa.) _ [Title omitted | Accounting Proceedings Before G. Dixon Shrum, Special Master The parties met at the office of Brown & Chitchlow, | Farmers Bank Building, Pittsburgh, Pennsylvania, at nine o’clock, Eastern Standard Time, Monday, May 11, 1931, pur eiant to eall of the Master. Present: For. Plaintiff : Ambrose L. 0’Shea,. Esq. For . Defendant: Marshall A. Christy, Esq. [fol.51] Mr. O’Shea: I would like to make a part of the record my objections to the defendant’s account. ‘‘Opgections TO DEFENDANT’s Account as Fitep WITH THE MAsTER “Pirst. Plaintiff objects to the account as filed for the - reason that it is not in proper form. - Second. Plaintiff objects to the defendant’s account as filed in that it does not set forth the individual sales made by the defendant to its respective customers. “Third. Plaintiff objegts to-the account as filed, m that it offsets the losses défived from loss-incugring sales against the profits derived by the defendant from: profit- ineurring sales. femal = , SR cir ak bee a ae a PRES 37 ‘Fourth. Plaintiff objects to the account as filed, in that it charges against the amounts received from sales the cost of manufacturing large quanties of its product which was not sold. ‘“‘Fifth. Plaintiff objects to the account.as filed, in that it includes as an item of cost an amount representing the material, labor and overhead incurred by the defendant in the manufacture of goods which were returned by the cus- tomérs and offsets the loss incurred thereby against the profit-bearing sales. ; ‘*Sixth. Plaintiff objects to the account as filed, in that for the year 1928 the defendant credits itself as an item of. cost with 3,722,601 square feet of glass at a total purchase price of $1,514,254.74, and also credits itself as an item of cost with 2, 758 302 square feet of pyralin at a total pur- chase. price of $445, 333.80, whereas it charges itself with the sale of only 1,924,896 square feet of glass and 962,448 [fol. 52] square feet of pyralin at a total selling price of $1,871,826.25, leaving a balance of 1,797,705 square feet of -glass and 1,795,854 square feet of pyralin unaccounted for. ‘Seventh. Plaintiff objects to the account as filed, in that for the year. 1929 defendant credits itself as an item of cost with 5,287,322 square feet of glass at a total purchase price of $2,159,062.17, and also credits itself as an item of cost with 3,198,639 square’feet of pyralin at a total purchase price of $706,855.53, whereas it charges itself with the sale “of ‘only 4,038,720 square feet of glass and 2,019,360 square feet of pyralin at a tetal selling price of $3,784,129.61, leav- ing a balance of 1,248,602 square feet of glass and 1, 179, 279 square feet of pyralin unaccounted for. | “Bighth. Plaintiff objects to the account as filed, in that for the six months of the year 1930 included in the ac- counting period, defendant credits itself as an item. of cost - with 1,620,151 square feet of glass at a ‘total purchase price of $512, 776.80, and also credits itself'as an item of cost with 954,474 square feet-of pyralin, at a total purchase price of $189, 144.51, whereas. it charges itself with the sale of only 1,335,072 square feet of glass and 667,536 square | feet of pyralin, at-a total selling price of $1,073,295.76, leaving a balance of 285,079 square feet of glass and 286, - 938 nee feet of pyralin unaccounted for. ” . [ - “ —o a _ 5 : * Sis pests mn sees ces 8 RnR Tah ST Sen a PP Seah a ent - — = on ss . , i a — ee eee ak OS 4 heed’ LT ¢ 2 \ * 38 ‘‘Ninth. Plaintiff objects to the account as filed, in that. for the years of the accounting period defendant credits itself as an item of cost with large sums for labor, whicli said sums were expended by the defendant in the manu- facture of a large amount of. laminated glass that is unac- counted for in the defendant’ s sales. [fol.53] ‘‘Tenth. Plaintiff objects to the inclusion in the _ cost items for the year 1928 of interest on investment in the amount of $60,000, being interest at the rate of six per cent per annum on $1,000,000, for the reason that the books of the defendant company indicate that the defendant’s in- vestment did not reach $1,000,000 until in or about the month of October, 1928, and that in the months prior thereto in the year 1928, the investment: ranged from $50,000 to $700, 000. . ‘‘Hleventh. Plaintiff objects to the account as filed, and particularly with respect to the inclusion therein as an item of current expense of all credits representing ‘Expenses for Experimentation,’ for the reason that all such experi- mental expenses are properly capital expense, particularly so in’this case in that such experimental expenses were carried on for the purpose of developing inventions and resulted in the development of inventions and the filing of applications therefor, all of which is a capital investment. ‘‘Twelfth. Plaintiff objects to the account as filed, and particularly with respect to the inclusion therein as an item of current expense of all credits representing and en- titled ‘Miscellaneous Patent Expenses,’ for the reasons given in objection ‘Eleventh.’ “Thirteenth. Plaintiff objects to the account as filed, and particularly with respect to the inclusion therein as an item of current expense of all credits representing and en- titled ‘Commissions paid to Pittsburgh Plate Glass Com- pany,’ for the reason that it does not appear on the face of the account what, if any, arrangement, contract or agree- ment existed between the defendant and the Pittsbur gh Plate Glass Company. (fol. 54] - ‘‘Fourteenth. Plaintiff objects to the account as filed, and particularly with respect to the inclusion therein as an item of current expense of all credits representing Sides ‘ i . * SDR eerina TA cans de yeaa Sites : . Kecetmoc: —— : Se, ht: SO Ss Soak ? we engeeee aihiitetian = a bial Sst Ma cae ET PERO RIT SSI A yen rte —— " > Pe. ee ee TAN ‘Payments to the Mellon Institute Fellowship,’ for the reason that it appears on'‘the face of the account that the -amounts paid to Mellon Tnstitute Fellowship represent gifts. “Fifteenth. Plaintiff objects to the account as filed, and particularly with respect to the inclusion therein as an item of current expense of all cerdits representing ‘Ex- penses of Triplex Patent case,’ for the reason that such ~ expense is not a-proper item of expense in a — ac- counting. ‘‘Sixteenth. Plaintiff objects to the ntiitaiad as filed, and particularly with respect to the inclusion therein as an item of current expense of all credits representing ‘Ex- traordinary Expenses,’ for the reason that the items of expense entitled ‘Extraordinary Expenses’ represent the cost of moving the defendant’s plant, ‘which i is in the nature ° of a capital expense. ‘*Seventeenth. Plaintiff reserves the right to file such further objections from time to time during the hearing as it may be advised are necessary or proper in view of the * testimony that may be adduced at such hearings. Respectfully submitted, Ambrose L. O O’Shea, Coun- sel for Plaintiff. sg [fol. 55] C. L. McHenry, a witness produced on behalf of the plaintiff, having been duly sworn, testified as follows: Direct examination. By Mr. O’Shea: Q., Mr. McHenry, you are the person who swore to de- fendant’s statement of account before the Master? A. T am. - Q. Are you an = of the defendant, —— Corpor a- tion? _ A. I am not. —— - Q. Will you please state just what your ecnnnattina with -the defendant, Duplate Corporation, is?, — A. As. auditor. 39° . 40 Q. Auditor of Duplate Corporation? A. Well, no; that is not exactly right. “I am auditor for ' the Pittsburgh Plate Glass Company, which carries my duties to the Duplate. Q. Just what is the connection between the Pittsburgh Plate Glass Company and the mene Corporation? A. Their stock holdings. Q. Pittsburgh Plate Glass Company is a stockholder of the Duplate Corporation? A. Duplate Corporation; yes, sir: Q. Does it have any other stockholder beatin the Pitts- ' burgh Plate Glass Company? A. Du Pont Company, 50 per cent.; that is all. Q. Any other besides the du Pont Company and the Pittsbur eh Plate Glass Company? A. No, sir. Q. What were the eer stockholdings of those two corporations? A. Fifty per cent. each. —. cit Q. So that as the auditor of the Pittsburgh Plate Glass _ Company, you prepared the defendant’s statement of ac- [fol. 56] count when it was called for under the Master’s order of the Duplate Corporation? A. Yes, sir. ; Q. I take it, therefore, that you are thoroughly familiar with the books of the Duplate Corporation? A. Yes. -Q. And had that dennitianity before the filing of this account? A. Yes, sir. Q:. When was the - Duplate Corporation uenoninedt A. In the last—I think it was December, shout the 28th, of 1927. It was just a few days before the beginning of 1928. Q. Did any corporation or individuals doing business under the name of Duplate Corporation, or any other name that you were connected with, either directly or indirectly, carry on any business in manufacturing or ane laminated glass, prior to January 1, 1928? A. No one that I was connected with. Q. Did the Pittsburgh Plate Glass Company, make or sell laminated glass prior to J anuary 1, 1928? A. No, sir. idacaphnetaeere ho een menceres ange BETES ae REI Se EOP ate eer oe a 2 ats Noe are 36 Fae ees Se Lt Le a eee Se oe eee ae — 41 Q. Now, in the early part of 1928, after the incorpora- tion of the defendant company, did the defendant company have a uniform price which it charged to all customers? A. For the sale of Duplate—— Q. For the sale of laminated glass. A. The price was not uniform; it varied considerably. Q. And what were those variations dependent upon? A. On the quality of the product and the amount of edge work, , Q. Anything else? | A. That is all I can think of now. | (fol. 57] Q:. What were the differentiations in quality ?. A. As to the quality of glass and pyralin which it was necessary to use in order to produce the product that the customer required. Q. Now, referring to the quality of the glass, how many different qualities did the Duplate Corporation have in the early part of 1928? , A. I believe they. had ‘some silvering quality, glazing quality, window glass, and heavy polished plate. - Q. Is there a distinction between glazing quality and window glass, in the glass trade? A. Oh, yes. It is made under a different process. Glaz- ing quality of plate glass—when I speak of glazing quality, that is plate glass. ) Q. Window glass is commonly known in the trade as sheet glass, is it not? _ A. It is known under that name. °- | Q. And the other qualities are known as plate glass? A. Yes, plate glass. . | Q. And how many different qualities were there under the plate glass heading? A. Two—silvering and glazing. I would also say that the difference of the bracket of the glass that was used would ‘affect the cost. . Q. What do you mean by ‘‘bracket’’?__ A. Difference in the size of the glass. Q. Is that trne both of plate glass and sheet glass? A. It is. Q. Now, you spoke also as to difference as to edge work. That really applies to both plate. and sheet? | Yes. Q. And is really an additional operation on the glass? “Ling, ORR AG eS LE AS, DR dM hd x A. It is the finishing of the edges, making it fit for use. ffol.-58] Q. Of course, some vue was sold without the edge work? A. It was. Q. And still it was fit for use? A. Well,sit had to be cut and edged wkoee it could be used. @. Well, just what does edging mean, in he trade? . It is putting on either: a rough or smooth or finished PP on the piece that is to be used. Q. -You mean on the laminated piece? A. Yes; laminated or unlaminated. Q. Well, of course, we are directing our attention in this examination to laminated. A. That applies to laminated. Q. So in the future when we are talking of Siek in this examination, let us take it for granted that we are discuss- ing laminated glass, unless the question asks for some in- formation with respect to glass generally or specifically. - A. Fea, ae. Q. Is it not possible to use glass without having this. edge work on it? A. It is, and it is used in the rear lights of automobiles. Q. As a general etom, is it not true that the Duplate Corporation sold its@lags at a particular price, and then an additional price for the edge work that was put on the laminated glass? A. On one order that happened, with the Fisher Body Company. . Q. Is that the only order? A. That is the only large order. There may have been small orders that were filled, so much per foot for the glass, and so much per inch or foot for the edge work. The ma- jority of sales are made so much per plate or per foot, Q. Without any additional charge for— [fol.59] A. That price includes the edge work cost. ,Q. That price included the edge work cost, paceci in the case of the Fisher Body? . A. The Fisher Boay was the large order that was iendied the other way. Q. Did your differentiation in prices * between different customers have any relation to the MM of transportation © of the glass? . ice iS ess Casa Sie MIS SOR A AN nt GARE Oe Sele ee dE soa GR ME dase shite A. I could not answer that. , -Q. You mean by that that you don’t know? A. I don’t know. That would be the salé& department's operations. Q. And who in the sales department? A. Mr. Judson. : ; Q. May I take it for granted that with respect to all mat- _ ters relating to sales, that the man who would have the in- formation on that point would be Mr. Judson? A. Yes, sir. Q. Is Mr. Judson an oilicer of the Duplate Corporation? A. No, sir. e. Q. Is he an employee of the Duplate Corposxation? A. No. He is Pittsburgh Plate Glass Compamy entirely. Q. Is he an officer of the Pittsburgh Plate Glass Com: pany? | 7 | A. No, not to my knowledge. . - Q. He is an employe of the Pittsburgh Plate Glass Com-’ pany? A. Yes, sir; sales manager. “a Q. And what is his title in the Pittsburgh Plate Glass Company? © ; : . _ A. Sales manager. | Q..Fronr whom did Duplate purchase its glass? A. Pittsburgh Plate Glass Company, practically—that ~ is, all the plate glass. It may have purchased window glass -[fol. 60] outside the Pittsburgh Plate Glass Company. - Q. But its main purchases of glass were from the Pitts- burgh Plate Glass Company? A. Yes, sir: | . Te Q. And do you know whether the Duplate Corporation received any preferential price over the market for the glass which it purchased from the Pittsburgh Plate Glass Com- pany?. A. J understand it purchased it at the market price, less 10 per cent.; that is, the price to other customers. Ten per cent. lower-than outside trade would be the proper way to put that. There may. be a standard list with the standard 10 per cent. on it; the Duplate Corporation would get an- other 10 per cent. below the other customers. - Q. So that customers other than Duplate Corporation were considered as outside customers? : A. Yes, sir. MS URE Me SEAR ish dati ee ' 440C‘ | a \ Q. And Duplate Corporation was considered as having some relation to the Pittsburgh Plate Glass Company? A. Well, they received the benefit of that lower purchase price. Q. But you considered the others as being outside cus- tomers? . A. Yes, sir. Q. Who were the officers of Duplate Corporation in or about January, 1928? A. Mr. Hl. S. Wherrett—I am not familiar enough with that to give you the title or just who are all the officers. Mr. Wherrett, as I recall it, was president ; Mr. Davis, Mr. Doyle was treasurer, and Mr. Pitcairn assistant treastrer. Q. But before that, the defendant in this case was origi- nally incorporated under the name of Pittsburgh Safety _Glass Company, was it not? [fol.61] OPO>OD 1928? A. I don’t know. ~ y oe ee ee ee ee a tt _ a ETE IF AOS 8 BRETT He TELE ROLL PETE EN SR Bi OER ? . ee ee tek Pee ; is Snel Sk at Se ab . 46 Q. Was_ he inenatiads as an officer or dir ector of the Pittsburgh Plate Glass Company at that time? [fol.63] A. He was vice-president. Q. Do you know a man named C. K.' Davis? A. I do not. Q. Do you know a man named D. W. Doyle? A. Yes, sir. Q. Was he an officer or director of the Pittsburgh Safety Glass Company, én the early part of 1928? A. He was not. Q. Is:he an officer or director now? | A. No. He is in Italy at the present time. He was treas- ©: . urer, I believe, in the years 1929 and 1930, or maybe just in 1930. Q. That is, treasurer of Pittsburgh Safety Glass Com- pany? A. Yes. Q. In either both or one of the years 1929 or 1930? A. Yes. Mr. McBride was treasurer in the year 1928. Q. Was Mr. McBride an officer of the Pittsburgh ,Plate Glass Company? A. No, sir. Q. Or an employee of the Pittsburgh Plate Glass Com- pany? © - A. No. Q. When you obtain the information, Mr. McHenry, with respect to who were the officers and dir ectors of Pittsbur gh Safety Glass Company, and particularly those whose names you have jotted down, will you also ascertain whether they continue up to the present time, and if not, let us have such changes as were made up to the end of the accounting period? A. Yes, sir. Q. Now, it is a fact, is it not, that in or about 1931, the Pittsburgh Plate Glass | Company purchased all of the in- terest of du Pont Company? Mr. Christy: Object to the question as immaterial, in that it relates to a time subsequent to the termination -of the [fol. 64] accounting period in this case. Mr. O’Shea: Mr. Master, I think it is material, for the reason this case is still progressing, and it is of vital im- portance to determine just what the present ‘status of this .Duplate Corporation is. I think it is going to be very \ ~ “Se Porenttsg sete Teens SAG 2 aT ADAP Rite Th eek PE Sed Sgn eee “ aT material for us hitises. the end of this accounting, and, as a mat-er of fact, I think it is more or less a matter of public record now. ‘The Master: Objection overruled. t A. Pittsburgh Plate Glass Company purchased all the interest, but I am not sure’ as to the date. Q. Well, in any event, at the present time the Pittsburgh Plate Glass Company is the sole stockholder of Duplate Corporation? A. Yes, sir. - Q. Now, Mr. McHenry, in the early part of 1928, where was the corporation, then known as Pittsbur gh Safety Glass Company, located ?- A. At the upper end of Works No. 1, on the property of the Pittsburgh Plate Glass Company, and i in their build- ing. Q. You mean by “Works No. 1’’ a plant or works of the Pittsburgh Plate Glass Company? A. It is the Creighton factory. Q. And at that period then, the factory of the Pittsburgh . Safety Glass Company occupied the same pr emises as Pitts- _ burgh Plate Glass Company? A. Yes, sir. if Q. And was operating in a plant of-the Pittsburgh Plate Glass Company? A. Yes, operating in one of our buildings. Q. And ‘four buildings’’ means Pittsburgh Plate Glass ” Company? A. Pittsburgh Plate Glia Company, yes. [fol.65] Q. And how long did it continue operating in that building? . Until about February, 1929. Did it.move at that time? . It moved to its own building. And where was that building located? It stayed on Pittsburgh Plate Glass Company’s prop- At Creighton also? . At Creighton. Q. In 1928, when the Pittsburgh Safety Glass Company was occupying and operating in one of the plants of the silanes 9 Plate Glass Company, did it pay rent? A. It did not, for the factory building it was operating in. cretrerers ° 48 Q. Has either the Pittsburgh Safety Giass Company or its successor in name, Duplate Corporation, paid rent to Pittsburgh Plate Glass Company for any of the buildings it occupied? A. It has paid rent, I believe, in the year 1929, for stor- age space that they took or used in the Creighton factor y. Q. That is the only rent it ever—— A. And they paid rent for an office building. Q. And office building? A. An office building. Q. Did it have an office building at Creighton? A. When it was operating at the first plant, they rented an office building of the Pittsburgh Plate Glass Company. It was a very small building—office space. Q. At Creighton? A. Yes. Q. When it built its factory i in or about the early part of 1929, did it own the ground on which it built the factory? [ fol. 66] A. It did not. . Q. Who was the owner of that land? A. Pittsburgh Plate Glass Company. @. Going back again to the early part of 1928, and through that year, where were the general books of account of the defendant, then known as Pitisburgh Safety Glass Company, kept? A.-In the general office of.the Pittsburgh Plate Glass Company. Q. And where is that located? A. In the Grant Building, Pittsburgh. Q. And are we to understand from that that the corpo- ration then known as Pittsburgh Safety Glass Company maintained its general offices in the space occupied by Pittsburgh Plate Glass Company? A. There was only one office occupied by the Duplate or Safety Glass employees, which was Mr. Penning’s, the manager of the plant. Q. One office in the offices of Pittsburgh Plate Glass Company? A. Yes. Q. In the Grant Building, in Pittsburgh? A. Yes. In 1928, we were in the Frick Building. Q. When you say ‘‘we’’, you mean the Pittsburgh Plate ° Glass Company? A. Yes. hs 49 . Q. Did PittsburghNafety Glass Company pay rent to the Pittsburgh Plate Glass Company for that one office of Pitts- burgh Plate Glass Company? A. It did, after we moved to the Grant Building, where they occupied a separate room. a. Q. When did you move to the Grant Building, approxi- mately? ) . A. March, 1929. Q. So that all during the year 1928, the Pittsburgh Safety Glass‘ Company paid no rent to Pittsburgh Plate Glass Company for the office which it occupied in the offices of (fol. 67] Pittsburgh Plate Glass Company? ‘A. Not to my knowledge. ©. How many employees were in the room occupied by the Pittsburgh Safety Glass Company? A. In 1928? * Q. In-1928. A. Three employees in the board room. Q. Well, the board room is the room where? . A. Where Mr. Penning had his desk. Q. Which the Pittsburgh Safety Glass Company oe- cupied as its accounting department, shall we say? A. No; Mr. Penning was the manager. (). Manager of what? A. Safety Glass. - oe he Q. Mr. Penning was manager of the Safety Glass Com- pany and was an employee of the Pittsburgh Safety Glass Company? . A. Yes. * Q. And received his salary from the Pittsburgh Safety Glass Company? A. Yes. | Q. Had he any connection at all with the Pittsburgh Plate Glass Company? . A. Not at all. | | Q. The other three accountants or bookkeepers, were they all.employees of the Pittsburgh Safety Glass Com- pany? . A. Of the Pittsburgh Plate Glass Company. Q. ghey were employees of the Pittsburgh Plate Glass Company? A. Yes. 4—767-768 RB A PGRN GRA RS ihn | ae dey: noua Q. They received their salaries from the Pittsburgh Plate . Glass Company? . A. Yes, sir. Q. Throughout this year 1928? A. Yes, sir. [fol.68] Q. Did you. do any work on the books of the Pittsburgh Safety Glass Company during the year 1928? A. I did. Q. What was the character of the work which you did? A. Instrugtions to the factory accountant. Q. And where was the factory accountant located? A. At Creighton. . Did you receive arty part of your salary from the Pittsburgh Safety Glass Company? ' A. No, sir. ¢Q. For the work which you did for it? A. Not in 1928. Q..Did you audit’ the books of the Pittsburgh Safety ec. Company for - year 1928? A. Yes, sir. © Q. You did that as an employee of Pittsburgh Plate Glass Company? A. Yes, sir. Q. ‘Where were the records of hates accounts kept in the year 1928? A. At the factory. Q. By an employee of the ica zh Safety Glass Com- pany?’ , A. Yes, sir. Q. Who determined the policya@nd amount of depretia- tion and obsolescence in the year 1928? A. Mr. Penning and Mr. Spahr, in conference with the directors. Q. Who is Mr. Spahr? A. Assistant comptroller. Q. Assistant comptroller of what? A. Pittsburgh Plate Glass Company. Q.. Those two were in conference with the directors of which company? A. Of the Pittsburgh Plate Glass einen. and they’ may have:consulted the directors of the Pittsburgh S: ifety [fol. 69] Glass Company from Arlington—Mr. Davis. ma Where is Arlington? A. Arlington, New Jersey. P , 51 Q. You made none of the entries in the general books of account of the Pittsburgh Safety Glass Company or the Duplate? A. No, sir. : Q. You simply audited such entries as were found tliere? A. Yes, sir. Q. Do you recall aa account on the general ledger ‘of Pittsburgh Safety Glass Company, and carried through into the books of the corporation of the changed name, ‘‘Duplate Corporation,’’ entitled ‘‘E. A. Pitcairn, Treas- urer’s Account’’? . . A. That account should be there, although he is assistant treasurer, not treasurer. Q. That account should be where? A. In the Duplate’s books. Q. The general ledger of the Pittsburgh Safety and ‘Du- plate books? A. Yes, sir. Q. You say E. A. Pitcairn is assistant treasurer? A. Yes. Q. Of what? A. The Duplate Corporation. Q. And was assistant treasurer of Pittsburgh Safety Glass Company? A. Yes. Q. Did E. A. Pitcairn have any connection with the Pitts- burgh Plate Glass Company? A. He was treasurer. | Q. He was treasurer of Pittsburgh Plate Glass Company also? A. Yes. | [fol.70] Q. And assistant treasurer of Pittsburgh Safety, Glass Company and Duplate Corporation? A. Yes, sir. ’ _ _Q. Who was the treasurer of Pittsburgh Safety Glass Company? A. Mr. McBride. Q. In 1928?° A. Yes. | : Q. Did he remain treasurer up until June, 1930, do you know? . , A. No; Mr. Doyle took his place. I don’t recall the date. Q. Did Mr. McBride have anything to do with the Pitts- burgh Plate Glass Company? ~ . $a atl DDisiniipiscsinct es. Leah isihied Pech Fak Ly og ; . 5Q . A. No, sir. | Q. He was solely an officer and employee, I assuine also; '. of the Pittsburgh Safety Glass Company? A. Ye8; a du Pont employee. | ‘i Q. He was a du Pont ment _ A. Yes. . : Q. Did he receive any compensation for his services, as treasurer? -A. Not to my knowledge. Q. Did Mr. Doyle receive any compensation for his serv- ices as treasurer? _ A. Not to my knowledge. Q. Did Mr. E. A. Pitcairn receive any compensation for his services as assistant treasurer of Pittsburgh Safety Glass Company and Duplate Corporation? A. No, sir. Q. I understood you to say, Mr. McHenry, that Pitts- burgh Safety Glass Company had no sales manager? A. Their sales were handled by—sold‘to the Pittsburgh Plate Glass Company. The product was sold to the Pitts- burgh Plate Glass Company. . [fol. 71) Q.-You mean by that, don’t you, that the Pitts- * burgh Plate Glass Company sold all the product of Pitts- burg Safety Glass Company to the consumers, like auto- mobile manufacturers, automobile body builders, jobbers A. Who sold it, did you say? Q. Pittsburgh Plate Glass Company. A. Pittsburgh Plate Glass Company did. Q. What was the system used by the Pittsburgh Safety Glass Company, and later the Duplate Corporation, i in mak- ing purchases of raw material and supplies? A. They were requisitioned by the plant manager and purchased through the Pittsburgh office—the Pittsburgh Plate Glass Company. Q. Am I correct in stating, then, that the system followed somewhat as follows: that the plant manager made a requi- sition for his supplies of raw material to the Pittsburgh Plate Glass Company, and that thereafter the Pittsburgh Plate Glass Company placed thé orders with the suppliers of raw material? A. Yes, sir. Q. That is true of what i is ordinarily referred to both as raw material and supplies? a - - 2 53 . A. Yes, sir. Q. It is true; is it not, that all glass, excepting odd in- stances, was purchased from Pittsburgh Plate Glass Com- pany? a A , A. It is. | ; , | | Q. And that all pyralin, except possibly in odd instances, also was purchased frém du Pont Viscoloid Company? . A. It is. , . Q. Now, what was the system or plan of selling the prod- uct of the Pittsburgh Safety Glass. Company, afterwards known as Duplate Corporation? a [fol. 72] A. An invoice was rendered by the Safety Glass Company and Duplate Corporation to the Pittsburgh Plate Glass Company. | Q. Can we start back from the consumer and trace it back to Pittsburgh Safety? _ | | A. The Pittsburgh Plate Glass Company’s sales depart- ment would secure an order, say, from Fisher Body, Com- pany ; that.order would be placed with the Duplate Corpo- ration, to manufacture certain size and glass to pattern. Q. Was there some document transmitted from Pitts- burgh Plate to Pittsburgh Safety? _ A. Yes, there would be a copy of the order made up. Q. That is to say, a copy from the ultimate consumer, as Fisher Body Company, would be made up by Pittsburgh Plate Glass Company and turned over to Pittsburgh Safety Glass Company or Duplate? A. Yes; to make up certain glass according to the pattern that the order called for. Then when the glass is shipped an invoice is made out by the Safety Glass Company or the Duplate Corporation against the Fisher Body Company, and if the sales price is. $1.75, they mark it on the invoice ‘$1.75,”’ and from that bill from the Duplate Corporation, an invoice is made out by the Pittsburgh Plate Glass Com- pany to-the Fisher Body Company, at $1.75; as specified on the original order. The Pittsburgh Plate Glass Company pays Duplate Corporation $1.75, less their commission, say’ of 3 per cent. . Seta Q. I didn’t quite understand, Mr. McHenry. I under- stood you to say that Pittsburgh Safety, afterwards Dup- late invoiced directly to the ‘consumer, as Fisher Body Company? é, ’ ' os 2 GS SPER TI LAT SERA Se ee ee Cieeemnene oe A : oe a en Se Oe en Sean eRe eee Re ee aT ee eT 3 . ae iP aos Mian Sibi tina Bhi pte iee oaks Prd Saad Se hele ae ae “eg 54 an A. They specify on that bill whether it is for Fisher Body Company. |fol. 73] Q. Is this what you mean: Pittsburgh Safety, or Duplate, would make up an invoice, on which would be stated that the glass included ir that invoice was for Fisher Body, or Smith, or Jones? A. Yes. Q. But that that invoice would not go to Fisher Body, Smith, or Jones? A. No, it does not. Q. Where would that invoice go? A. That comes to the Pittsburgh office. Q. You mean by Pittsburgh office—— A. The Pittsburgh Plate Glass Company's office. It is our understanding that we make all tlie sales. That’ saves us work in making a regular bill from the Duplate Corpora- tion to Pittsburgh Plate Glass Company, and then from the Pittsburgh Plate Glass Company to the consumer. We use this original bill that comes from the Duplate factory, to tell us that this shipment goes to Fisher Body. That serves as our original invoice, which is kept in our files - ‘in the Pittsburgh Plate Glass Company. . Q. This invoice from Pittsburgh Safety Glass C ompany, or Duplate Corporation, is that the invoice that is usdally known in your organization as the ‘‘pink slip’’? A. Yes, it is. : Q. Well, was not the sole purpose of that pink yip whieh you have referred to in your testimony as an invoice from Duplate or Safety Glass to the Pittsburgh Plate Glass Com- pany, to acquaint Pittsburgh Plate Glass Company with the fact only that certain shipments had been made to certain customers, and that with that information, to wit, that ship- _ ment had been made, to acquaint the Pittsburgh Plate Glass . Company further withthe fact that it was time thén to bil! the customer, such as Fisher Body, Smith or Jones? {fol. 74] A. No, that would put it on a basis of a shipping record. It is really the original invoice that is retain 1 in our office as such. Q. Invoice from whom to whom? A. From the Duplate Corporation to Pittsburgh Plate Glass Company. Also, it serves from we Plate Glass Company to the consumer. ° b> et a : 55 Q. Was a copy of that, what I refer to as the pink slip, and which you have referred to as the Duplate invoice to Pittsburgh Plate, retained by Safety Glass, or later Duplate Corporation ? A. They have a copy of each one. + Q. They kept a copy of each one? A. Yes. Q. At the end of each month, did not Pittsburgh Plate ’ Glass Company use the pink slips | for the purpose ef mak- ing up a summary of the shipments made during that month? A. We did. Q. And what was the purpose of that summary?! A. To get our cost, what we were to pay Duplate for the goods we purchased from them. Q. To get your cost? A. Yes. , -Q. You mean by that to determine simply how much you owed Duplate since your cost was merely what Diplate or Safety Glass charged Pittsburgh Plate? A. Plus 3 per cent. Q. The purpose of the summary from the pink slips was to enable you to determine only how much commission you were entitled to during that month, for the goods shipped it in * that month by Duplate or Safety Glass? - Yes. We used it for that purpose. QQ. And was there any other purpose in that summariza- tion of the pink slips? [fol.75]' A. Well, it would’give us the total sales of Du- plate for that month and the commission earned. Q. Well, wouldn’t it have been possible for you to have summarized your own orders received from the customers, to obtain the*same information? A. No; because we might not have posted to that order the amount of goods shipped during that month from the Pittsburgh office. > Q. So that the main purpose of the pink slip, then, was. to inform you of the amount of oe shipped during that month by Duplate? A. Well, it served as our original invoice. Q. It is true it served as your original invoice, but it also served, didn’t it, to acquaint you with the fact that so much 2 > “ee * ga * _ DF footage had been shipped to various customers during the month by Safety Glass Company or Duplate? A. Yes. Q. Are these pink slips available sale one binder? A. A certain portion would be. A portion of a month or maybe two months in one volume. Q. Are they in binders seattered through other sales of Pittsburgh Plate? A. No; kept separate. Q. All kept separate. — A. Yes.. Q. Now, it is.a fact, is it not, Mr. McHenry, that in some “—___instances, at J€ast, it was the policy of the Pittsburgh Plate a any to grant a rebate to some of its customers. I use the word ‘‘rebate,’’ because that is the only way I know how to specify it. What I mean by it is that the, in- voice to the customer would specify a particular rate. per foot and that subsequently Pittsburgh Plate Glass Com- pany would forego some percentage or some amount of that invoiced price? [fol.76] A. Yes, sir; that is true. Q. And that that policy was acquiesced in by the Pitts- burgh Safety Glass Company and Duplate Corporation, to the extent that these rebates or allowances were charged back against Pittsburgh Safety Glass Compaay, or Duplate Corporation ? e A. Yes, sir. | . Q. How was the amount of those rebates or allowancés determined upon, and by whom? A. Well, we would have a contract, say with Fisher Body, for glass, at $2. 00.a i) ee ee ————--——. When you say ‘‘we,’’ you mean Pittsburgh Plate ‘ Glass Company? A. Yes, Pittsburgh Plate; and they would have some bodies built by Fleetwood, for, say, Cadillac cars. We would bill Fleetwood at $9.50 a foot, so that they would not know what Fisher Body was paying us for the glass. Later on, we would rebate fifty cents a foot to the Fisher Body Company, because Fleetwood—we -charged that back to them at $2.50, and we would have to abide by our contract that we would furnish their glass for $2.00 a foot—the glass that was used in their cars. o7 (). Now, the determination of whether that rebate should be fifty’ cents or ten cents rested solely in Pittsburgh Plate Glass Company? A. It rested solely on the original contract with the pur- chaser. Q. Which was made between Pittsburgh Plate Glass Cori- pany and the customer? A. Yes, the consumer. Q. And who, in Pittsburgh Plate Glass Company, deter- —, what rebate would be given? . Mr. Judson. s And yet when you came to pay the Safety Glass Com- pany or Duplate for the goods shipped for any particular month, you deducted from your payment to Duplate the [fol. 77] amount of these rebates or allowances? Is that the fact? A. We deducted from them the amount after taking off what commission we made on that shipment. (). I mean, laying aside the question of commissions due Pittsburgh Plate, it is a fact that you charged back, or de- ducted from the invoice price which appeared on the pink slip from Pittsburgh Safety to Pittsburgh Plate, any re- bates that had been allowed by Mr. Judson? A. Yes, sir. Q: Were. there no instances where such rebates were al- lowed on orders that came directly from the user of the glass? A. Not to my knowledge. That is for a _price adjust- ment, Q. “Do you distinguish between what you now refer ____ a price adjustment-and what you have previously kdened to as a rebate? A. Well, this that we mentioned here is a rebate or price adjustment. Q. Yes; but my question was whether there were no in-: stances where such rebate or price adjustment was allowed to the user directly, even on purchases that were made di- rect? A. Not to my knowledge. Q. Is it a fact that shipments made by Pittsburgh Safety Glass, later Duplate Corporation, were boxed—that. is, the glass was boxed—did the invoices or pink slips charge Pittsburgh Plate with that boxing cost? | NEE ROORTA NT DEINE Ber Eryn NN aR oe ites oH on xe es . a dhienataeieidaat nee Saat DUI O ESOL NSA AAR AE QQ SI St tibiae OO 08 A. Yes. There were some sales where boxing was charged to the customer, and it was not credited to the. Duplate Corporation. Q. Was that an oversight or the policy? A. That was the intention at that time. Q. That was the policy? A. Yes. P [fol. 78] Q. In other words, while Safety Glass Company furnished the material and did the labor of boxing, it did not charge for that material or labor? A. No. Q. But that in some instances, at least, Pittsburgh Plate did charge an amount for material and labor in boxing to the customer, and that the amount received by Pittsburgh Plate Glass Company for that material and labor was not credited to Pittsburgh Safety Glass Company or Duplate Corporation? A. That is true. . Q. And that was done because of an agreement between Pittsburgh Safety, afterwards known as Duplate, and Pitts- burgh Plate Glass Company? A. Yes. Q. Were these various agreements with respect to com- missions and any other items of charges contained in any written agreement between Duplate or Safety Glass Com- pany and Pittsburgh Plate Glass Company? A. I can’t answer that. The matters were usualy taken up by Mr. Spahr or Mr. Wherrett, or someone else in au- thority. Whether there was anything written on this I can’t say. Q. How would we find that out, as to whether there was anything? A. By inguiring of Mr. Spahr. Q. Will you ask Mr. Spahr whether there was any writ- ten agreement made between Pittsburgh: Safety. and Pitts- burgh Plate, with respect to commissions or any other mat- ters relating to charges to be made against either or both of those parties, and if there were such written agreement, T would like to have it produeed. A. Yes. (Recess until 1:30 o’clock P. M.) BRIS atin nee TRS Ret Mk AS TE Gee [fol. 79] Afternoon Sessipn C. L. McHenry, remmmine the stand: Direct examination ( continued). By Mr. O’Shea: @. Mr. McHenry, have you got the names of the officers and directors of the Pittsburgh Safety Glass ‘Company as of the early part of 1928? A. I have. Q. Will you state first the names of the officers, and then the names of the directors? A. Mr. F. B. Davis, Jr., cnairman of the board; Mr. H. S. ' Wherrett, president; Mr. R. L. Clause, vice-president and- : general manager; Mr. H. B. Higgins, secretary; Mr. W. U. [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_IA40386010_0046%3A01. Public record. Not legal advice.