Record and brief — Charles M. Tremaine and William B. Tremaine, Appellants, vs. Alonzo Hitchcock, George G. Saxe, and James H. Robertson. Alonzo Hitchcock, George G. Saxe, and James H. Robertson, Appellants, vs. Charles M. Tremaine and William B. Tremaine
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SUPREME COURT OF THE UNITED STATES.
No. 398. ALO
TREMAINE AND WILLIAM B. TREMAINE,
APPELLANTS,
CHARLES M.
VN.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND JAMES H.
ROBERTSON.
No. 399.—Cross-APrEAL.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND JAMES Hi.
ROBERTSON, APPELLANTS, :
VS.
CHARLES M. TREMAINE AND WILLIAM B. TREMAINE’
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
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FILED JANUARY 14, 1873.
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SUPREME COURT OF THE UNITED STATES.
. No. 398.
CHARLES M. TREMAINE AND WILLIAM B. TREMAINE,
APPELLANTS,
VS.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND JAMES H.
ROBERTSON.
ne
No. 399.Cross-A PPEAL.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND JAMES H
ROBERTSON, APPELLANTS,
VS.
CHARLES M. TREMAINE AND WILLIAM B. TREMAINE.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
Original. Print.
Replication
Notice to take testimony
Testimony of Hiram D. Opedyke
Testimony of Levi K. Fuller
DEFENDANTS’ EVIPENCE ON FINAL HEARING.
Testimony of William Karr
Samuel 8. Thatcher
William Thatcher
Hearing of cause in U sited States circuit court
Decree with reference to master...
INDEX.
Original. Print.
TESTIMONY BEFORE MASTER.
Pe CEO OL, BOUIN. base cccndccccinis ecss ness eedscubens cas 69
ED Fe. VOING so ciecin cde: dadevevcccca npaeke teenies 85
TPN 6.00 0.060 cheb cctadtetscdnccenhdgesencnnns 86
I CIEE oo enw cnn coves ececces cde nns pancee ence anéncsddns heonbnapene 118
Exceptions to master’s report by defendants...... .........-2+------------ 135
Sn Oe URE OF GEG 0 vsin es ccaven co cses cumeeesscces cveneh onaens sé 138
See On SOONG ROG 00 SRRGUOE vik. wnc ccicciccndcces ceeben sees snwebesece 140
PROOFS BEFORE MASTER.
Testimony of John M. Tremaine before master.......2..-...-.-.------+--- 144
George G. Saxe before master .... .... 22-22. cncncc cons ceccee 174
William F. Sherman before master .........-......---.----- 190
AMiaavrit of Febn Sh. TROIS. « «ons ncn s ccecoscs os vecone weccewecwnes coda 200
Master's TOPOTt 2.4. coos conwee ccc e cece once wove cece on sacc cocecs coee scccce 204
Exceptions of defendants to master’s report........-. 22-2 eee nee cee eee ee. 211
Exceptions of complainants to master’s report ...-....---....--------- eee 218
Meties 66: Remar Of URC NORG ie o's 56d oe cade so ced conned cénwewniidicede 221
PIES BO GOD . 6550s 0k 6000 tid cnnbbd Hid iaibe ones chuses times dene 223
OE GUN ve ccn tae wne bons cuns bbe ip Gh OREN AD One bute ewe euusun awe 229
Petition of appeal of defendants to the United States Supreme Court......... 233
BOGE GR GPPORE onc coe ccc cos cccccs cnn css se snee dass woes Gude escens sees sees 239
CIRREIOR 2. 2 onc cocw ccc ccccce cocccoeses cacece sees cose cece cose cocscceces 243
Petition of appeal of complainants to the United States Supreme Court...... 245
BONG Of GPPORll . ..20. 00 coos coce cocavc cosees eedees coos ccs cose vest sens: 250
CUBED 25 oo. cnc c cece sect coos coce cocews cone sews cose cos ced cece ccs cose ce 252
Order staying sending of records to the United States Supreme Court.....-... 254
Order amending Dill ..... 2..ccc cess cecwes cecc cece woes cocc soeses cscces cace 255
Mimoeplionn te enGer amending OU oso oe oo bsick pene cens bevscctececcceccsese. SF
Stipulation as to sending record to United States Supreme Court ............ 260
Order extending time to send record .. .. 222. c. cc ccc cw cece cccccccccccecce «=D
RE GING WOUENE ON 80 GERIIINS no in sinip ne a 0 die bn hb 05d Cece ccvaeccsenscess Re
CIE GUNEEIIONED 6 5 << eee ci cens nncitwdncens ds aaicue (wud d weeeweKs ines
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C. M. TREMAINE ET AL, VS. A. HITCHCOCK ET AL. 1
1 L & The President of the United States of America to Charles
[L. 8] M. Tremaine & William B. Tremaine, greeting:
You are hereby commanded that you and each of you personally ap-
pear before the judges of the circuit court of the United States of America
for the southern district of New York, in the second circuit court in
equity, on the first Monday of January, A. D. 1870, wherever the said
court shall then be, to answer a bill of complaint exhibited against you
in the said court by Alonzo Hitchcock, George G. Saxe, and James H.
Robertson, and to do further and receive what the said court shall have
considered in that behalf. And this you are not to omit under the
penalty on you and each of you of two hundred and fifty dollars.
Witness Hon. Salmon P. Chase, Chief Justice of the Supreme Court
of the United States, at the city of New York, on the sixth day of De-
cember, in the year one thousand eight hundred and sixty-nine, and of
the Independence of the United States of America the ninety-fourth.
KENNETH G. WHITE, Clerk.
MATHEWS & BETTS, Solrs.
The defendants are required to enter appearance in the above cause
in the clerk’s office of this court on or before the first Monday of Janu-
ary, 1870, or the bill will be taken pro confesso against them.
, K. G. W., Clerk.
2 (indorsed :)
Personally served on the within-named defendant, Cha’s M.
Tremaine, Dec. 7, 1869.
S. R. HARLOW,
U. S. Marshal.
Filed Dec. 7, 1869.
3 United States circuit court, southern district of New York.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND
James H. Robertson,
against
CHARLES M. TREMAINE AND WILLIAM B. TRE-
maine.
In equity.
To the honorable the justices of the circuit court of the United States
for the second circuit, within and for the southern district of New
York, in equity:
Alonzo Hitchcock, George G. Saxe, and James H. Robertson, all of
the city of New York, county of New York, and State of New York,
citizens of the United States, bring this their bill against Charles M.
Tremaine and William B. Tremaine, both of the city of Brooklyn, county
of Kings, and State of New York.
And thereupon your orators complain and say, that heretofore and
before the 27th day of June, 1865, one R. W. Carpenter, being then a
citizen of the United States, was the true, original, and first inventor or
discoverer of a certain new and useful invention, to wit: a “ tremolo-
attachment” in musical instruments, and that the said invention was not
known or used by others before his invention or discovery thereof,
4 and was not at the time of the application for letters-patent there-
for in public use or on sale with the consent or allowance of the
said Carpenter, as the inventor or discoverer thereof, contrary to the
Recs, 398-399—1
2 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
provisions of the statutes of the United States in such case made and
provided.
That being such inventor, the said Carpenter made application in writ-
ing to the Commissioner of Patents of the United States for the granting
of letters-patent for said invention, and accompanied the same with a
written description of the said invention or discovery, and the manner
and process of making and using the same in such full, clear, and exact
terms as to enable any person skilled in the art or science to which the
said invention or discovery appertains, or with which it is most nearly
connected, to make and use the same, and with a specification of the
parts and improvements and combination which he claimed as his in-
vention, and with drawings and models and written references explain-
ing the said invention or discovery, and explaining the principle and the
mode in which he contemplated the application of the principle, by
which it might be distinguished from other inventions; which said de-
scription was signed by the said Carpenter, and attested by two wit-
nesses, and filed in the Patent-Office.
That the said Carpenter made oath that he verily believed that he
then was the original and first inventor or discoverer of the invention
or discovery for which he then solicited a patent, and that he did not
know or believe that the same was ever before known or used, and also
that he then was a citizen of the United States.
And the said Carpenter at the same time paid into the Treasury of
the United States the sum of thirty dollars, and received a receipt there-
for, and then and there also duly complied in all other respects
5 with all the necessary condition’ and requirements of the statutes
of the United States in such case made and provided prior to the
granting of the letters-patent hereinafter mentioned.
That, on the 27th day of June, 1865, letters-patent of the United States,
bearing date on that day, were issued to the said Carpenter, according
to law, whereby there was granted to him and his heirs, executors, ad-
ministrators, or assigns, for the term of seventeen years from the 27th
day of June, 1865, the full and exclusive right and liberty of making,
constructing, using, and vending to others to be used, the invention or
discovery aforesaid, a description whereof was given in the words of the
said Carpenter, in the said schedule annexed to the said letters-patent,
und was made part of the same.
That the said letters-patent were issued in the name of the United
States of America, and were sealed with the seal of the Patent-Office
of the United States, and were signed by the Secretary of the Interior,
and were countersigned by the Commissioner of Patents, and were
numbered 48366, and were issued and delivered to the said Carpenter.
That thereupon, after the issuing of the said letters-patent as afore-
said, the said Carpenter put the said invention into use, and, by assign- —
ment in writing, dated the day of , 186 , assigned
one undivided half of his interest in said letters-patent to your orator,
said Hitchcock, and by assignment in writing, dated the 12th day of
June, 1866, assigned the other undivided half of his interest in said
letters-patent to your orators, said Saxe and Robertson; to which said
assignments, recorded in the Patent-Office, your orators refer.
And your orators further show to your honors that, heretofore, on or
about the 18th day of May, 1869, your orators, the said Hitch-
6 cock, Saxe, and Robertson, finding that the said patent which had
been granted to them was inoperative by reason of a detective or
insufficient specification, thereupon your orators, so finding, and the
said error having arisen by inadvertency, accident, and mistake, and
Cc. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 3
without any fraudulent or deceptive intention on the part of your ora-
tors or the said Carpenter, surrendered their said patent to the Com.
missioner of Patents, according to the statutes of the United States in
such cases made and provided ; and having amended their specification
of claim in accordance with the decision of the said Commissioner in
the premises, and having paid the fees prescribed by, and in all other
things complied with, the statutes of the United States in such case
made and provided, new letters-patent of the United States for the same
invention were, on the said 18th day of May, 1869, issued and delivered
to your orators according to law, whereby there was granted to them
for the unexpired term of seventeen years, from the 27th day of June,
1865, the full and exclusive right and liberty of making, constructing,
using, and vending to others to be used, the said invention or discovery
of a “ tremolo-attachment” to musical instruments, a description where-
of was given in the words of your orators and the said Carpenter in
the schedule annexed to the said re-issued letters-patent.
That the said new letters-patent were issued in the name of the United
States, and were signed by the Secretary of the Interior, and were coun-
tersigned by the Commississioner of Patents, and were sealed with the
seal of the Patent-Office of the United States, and were numbered,
3444, and were issued and delivered to your orators, the said Alonzo
Hitchcock, George G. Saxe, and James H. Robertson.
And your orators have, ever since the date of the said assignment,
been, and now are, entitled to all the rights, interests, and privileges
thereby secured unto them in and to the said invention or dis-
7 covery, in the said letters-patent particularly set forth, and are,
and ever since the date thereof have been, entitled to the exclu-
sive use of the said invention and improvement within the limits afore-
sald.
And your orators further show unto your honors that the said in-
vention or discovery so patented aforesaid unto your orators is of very
great utility; and that the same has been extensively introduced into
public use, and that the public have generally acquiesced in your ora-
tors’ exclusive right to the same; and your orators would, but for the
wrongful acts of the said defendants, and others acting in concert with
them, have made large gains, profits, and advantages from the mana-
facture, use, and sale of the said invention; and your orators would,
but for the wrongful acts and doings of the said defendants, and others
acting in concert with them, now be enabled to use the said invention,
to which they are entitled to the exclusive right as aforesaid, with pro-
fit and advantage, but that by the said wrongful acts and doings they
are now prevented and hindered from so doing.
And your orators further show unto your honors, upon information
and belief, that the said defendants, Charles M. Tremaine and William
B. Tremaine, well knowing the premises and the rights and privileges
secured unto your orators, and in order to deprive them of the profits,
benefits, and advantages which might and otherwise would have accrued
to them, at the city of New York and elsewhere, and within the. said
southern district of New York, and without the license or permission of
your orators, or either of them, they, the said defendants, have ever
since the lst day of January, 1869, unlawfuliy and wrongfully made or
caused to be made, sold or caused to be sold, used or caused to be used,
tremolo-attachments, each and all containing the said invention, dis-
covery, improvements, and combinations, consisting, as therein and in
the schedule set forth, of the application of suitable means to the
8 instrument by which the air may be agitated, to produce a trem-
4 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
ulous note as described, and the arrangement of a fan or agitator
in the instrument at right angles to the keys and parallel to the line of
reeds or pipe-mouths at any convenient distance from them as described,
the exclusive right to which is secured to your orators, as hereinbefore
set forth, and which said unlawful making, use, and sale by the defend-
ant? as aforesaid is a violation and infringement of your orators’ exclu-
sive rights and privileges, and that the said defendants have derived
aud received, and are still deriving and receiving, from such use great
gains and profits, but to what amount your orators are igorant and can-
not set forth, but your orators believe the same to be about the full sum
of ten thousand dollars, and so charge the fact to be, and pray that the
defendants may be required to make a disclosure of all such gains and
profits.
And your orators in like manner aver that the defendants, though re-
quested to desist from such unlawful use and to pay to your orators such
gains and profits as the defendants have actually made, refuse so to do,
by means whereof your orators are and have been greatly injured, and
are now prevented from putting the said invention or discovery into
successful operation, and are deprived and prevented from receiving the
gains and profits to which they are lawfully entitled, from the exclusive
rights and privileges so granted and secured to them as aforesaid, and
which they would have derived and acquired, and would now derive
and acquire, but for the said wrongful acts of the said defendants.
And your orators pray that the said defendants may be compelled by
a decree of this honorable court to account for and pay over unto your
orators all such gains and profits as have acerued or arisen to, or been
earned or received by, the said defendants, and allsuch gainsand profits
as your orators would have received but for the said wrongful acts and
doings of the said defendants.
And that the said defeudants and their attorneys, solicitors, clerks,
servants, agents, and workmen may be perpetually enjoined and
9 restrained by the decree of this court from directly or indirectly
making or causing to be made, using or causing to be used, or
vending to others to be used, in any manner, any tremolo-attachments
containing or embodying the said invention granted by the said letters-
patent, as issued or re-issued aforesaid unto said Carpenter and your
orators, and from infringing upon or violating the said letters-patent by
the use or sale of the said invention in any way whatsoever; and that
all such infringing attachments may be forthwith destroyed, or delivered
up to your orators, and that the said defendants may be decreed to pay
the costs of this suit; and that your orators may have such other relief
as the equity of the case may require, and as to your honors may seem
meet.
To the end, therefore, that the said defendants may, if they can, show
why your orators should not have the relief hereby prayed, and may
full, true, direct,and perfect answer make, according to the best of their
or their clerks’, agents’, or workmen’s knowledge, remembrance, informa-
tion and belief, to the several matters hereinbefore averred and set forth,
as fully and particularly as if the same were here repeated paragraph
by paragraph, and were thereto severally and specifically interrogated,
may it please your honors to grant to your orators a writ of subpcna
ad respondendum, issuing out of and under the seal of this honorable
court, directed to the said defendants, commanding them and each of
them to be and appear and make answer unto this bill of complaint,
aud to perform and abide by such order and decree herein as to this
court may seem required by the principles of equity and good con-
science.
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 5
May it also please your honors to grantto your orators a provisional
or preliminary injunction, issuing out of and under the seal of this hon-
orable court, enjoining and restraining the defendants, and each of
them, and their attorneys, solicitors, clerks, servants, workmen,
10 and agents, to the same purport, tenor, and effect hereinbefore
prayed for, in regard to said perpetual injunction.
And your orators will ever pray, &c.,
JAMES H. ROBERTSON.
MATHEWS & BETTS,
Complainants’ Solicitors.
FREDERICK H. BETTS,
J. P. Fircu,
Of Counsel.
UNITED STATES OF AMERICA,
Southern District of New York, ss:
On this 4th day of December, 1869, before me, came James H. Robert-
son, to me personally known, who, being by me duly sworn, did depose
and say that he is one of the complainants in the foregoing bill of com-
plaint named, and that he has read the said bill, subseribed by him, and
knows the contents thereof, and that the same is true of his own knowl-
edge, except as to matters which are therein stated to be on informa-
tion and belief, and as to those matters he believes it to be true.
FREDERICK H. BETTS,
Notary Public, New York County.
U. S. circuit court for south. dist. of New York.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND }
JAMES H. ROBERTSON
U8.
CHARLES M. TREMAINE & WILLIAM B. TRE-
maine.
Please enter my appearance for the defendants in the above-entitled
cause.
BENJ. E. VALENTINE, Solr.
Filed Dec. 30, 1869.
11 United States circuit court, southern district of New York.
ALONZO HITHCOCK, GEORGE G. SAXE, AND
James H. Robertson
against In equity.
CHARLES M. TREMAINE AND WILLIAM B. TRE-
MAINE.
The joint and several answer of the defendants, Charles M. Tremaine
and William B. Tremaine, to the bill of complaint of Alonzo Hitch-
cock, George G. Saxe, and James H. Robertson, complainants.
These defendants, now and at all times hereafter saving and reserving
to themselves all manner of benefit and advantage of exception to the
many errors and insufficiencies in the complainants’ said bill of com-
6 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
' ®
plaint contained, for answer ‘thereunto, or unto so much or such parts
thereof as these defendants are advised is material for them to make
answer unto, answer and Say :
They admit that letters-patent for an alleged new and useful inven-
tion of a tremolo-attachment in musical instruments were heretofore,
to wit, on the 27th day of June, 1865, issued, granted, and delivered to
the said R. W. Carpenter, as in that behalf alleged in the bill of com-
plaint of the said complainants, but they severally say, each for him-
self, that he has no knowledge or information sufficient to form a belief
as to the truth of the allegations of said bill of complaint that the said ~
Carpenter at any time assigned his interest in said letters-patent, or any
part thereof, to the said complainants or to any one or more of them,
and cannot therefore admit, but on the contrary deny, that the
12 complainants or that any one of them have or has any interest in
or title to the said letters-patent, or to the re-issues of the same,
as set forth in the bill of complaint of the complainants; and hereby
give notice to the said complainants that they will at the hearing of this
cause require the said complainants to prove their interest in and title
to said letters-patent, and to the re-issues of the same.
And the defendants, further answering, deny that the said R. W. Car-
penter was the true, original, or first inventor or discoverer of the
alleged new and useful invention of a tremolo-attachment in musical
instruments, as set forth in the bill of complaint; and they say anterior
to the time of the alleged discovery and invention of the said Carpen-
ter, as set forth in the bill of complaint, the principle and mode of oper-
ation of the alleged invention was discovered, known, applied, and
used by the persons, and at the times and places hereinafter named, to
wit: |
1. By one Lafayette Louis, lately deceased, of the city of Boston and
State of Massachusetts, to whom letters-patent of the United States of
America for said invention were issued, granted, and delivered, which
said letters-patent bear date the 18th day of November, 1856, and are
numbered 16,094.
This said invention was known to one Tristam Sawyer, who resides
in the town of Keene, in the State of New Hampshire, and to one Ed-
mund Sawyer, who residesin the city of Boston and State of Massachu-
setts, at 365 Washington street, in said Boston.
2d. By one Samuel Thatcher, now of the town of Washington, in the
State of New Jersey, who made, applied, and used the said invention at
a place called Brass Castle, near said town of Washington.
The knowledge of this invention and of its use was known to H. K. ~
White, now of the town of Brattleboro’, in the State of Vermont;
13 to John Smith, the former partner of said H. K. White, now of
the city of Chicago, in the State of Illinois, at 77 Sedgwick street,
in said city of Chicago; to William Thatcher, brother of the above-
named Samuel Thatcher, Adam Wandling, and William Kennedy, all
of the said town of Washington, in the State of New Jersey; to William
Carr, of Timber Swamp, near said town of Washington.
And these defendants, further answering so much of the said bill of
complaint as charges them with having infringed, or being about to
infringe, upon the rights or privileges secured by said letters-patent,
bearing date the 27th day of June, 1865, or by any of the re-issues of the
same, deny the charges aforesaid, and hereby give notice to the said
complainants that they will at the hearing of this cause require the
said complainants to prove that they, these defendants, or either of
them, have or has made, constructed, used, or sold the said alleged in-
en
A a RNR A MR Mat
ee ne een
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 7
vention, or any part thereof, whether substantial, or material, or other-
wise, or any device for the same purpose which infringes on any right
lawfully vested in said complainants, or any of them, or have caused or
procured the same or any of the same to be done.
And these defendants, further answering, deny that said complainants
are entitled to the relief, or any part thereof, in their said bill of com-
plaint mentioned, and these defendants pray the same advantage of this
aforesaid answer as if they had pleaded the several matters and things
- aforesaid, to the bill of complaint in this cause, without this, that any
other matter or thing material or necessary for these defendants to
make answer unto, and not herein or hereby well or sufficiently an-
swered unto, confessed or avoided, traversed or denied, is true to the
knowledge or belief of these defendants, or either of them.
All of which matters and things these defendants are ready to aver,
maintain, and prove as the honorable court shall direct: and hum-
14 bly pray to be hence dismissed with their reasonable costs and
charges in that behalf most wrongfully sustained.
C. M. TREMAINE.
W. B. TREMAINE.
B. E. VALENTINE,
Defendants’ Solicitor.
GEO. T. CURTIS,
Of Counsel.
UNITED STATES OF AMERICA,
Southern District of New York, ss:
On this 26th day of February, 1870, before me, came Charles M. Tre-
maine, to me personally known, who, being by me duly sworn, did
depose and say that he is one of the defendants in the foregoing answer
named, and that he has read the said answer by him subscribed, and
knows the contents thereof, and that the same is true of his own knowl-
edge, except as to the matters which are therein stated on information
and belief, and as to those matters he believes it to be true.
C. M. TREMAINE.
Subscribed and sworn before me this 26th day of February, 1870.
J. WADE WILSON,
Notary Public for City and County of New York,
484 Broadway, New York.
15 Circuit court of the United States for the southern district of
New York.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND
James H. Robertson
V8.
CHARLES M. TREMAINE AND WILLIAM B. TRE-
maine,
The replication of Alonzo Hitchcock, George G. Saxe, and James H.
Robertson, complainants, to the answer of Charles M. Tremaine and
William B. Tremaine, respondents.
The repliants, saving and reserving now, and at all times hereafter,
8 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
all and all manner of benefit and advantage of exception which may be
had or taken to the manifold uncertainties and insufficiencies of the
said answer, for replication thereto say that he will aver, maintain, and
prove the bill of complaint to be true, certain, and sufficient in law to
be answered unto; and that said answer is uncertain, untrue, and in-
sufficient to be replied unto without this: that there is any other mat-
ter or thing whatsoever in the said answer contained material or effect-
ual in the law to be replied unto and not herein and hereby well and
sufficiently replied unto, confessed and avoided, traversed and denied,
is true; all which matters and things the repliants will be ready to aver,
maintain, and prove, as this honorable court shall direct, and humbly
pray, as in and by the bill is already prayed.
MATHEWS & BETTS,
Complainants’ Solicitors, 31 & 33 Pine Street
16 United States circuit court, southern district of New York.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND
James H. Robertson,
U8.
CHARLES M. TREMAINE AND WILLIAM B. TRE-
malne.
Sir: Please to take notice, that proofs for final hearing, under Rule
67 of the Supreme Court of the United States, will be taken on the
part of the complainants in the above-entitled action at the warerooms
of Messrs. Saxe, Robertson & Co., at No. 417 Broome street, in the city
of New York, before a proper officer, on the 10th day of March, 1870, at
10 a. m.
Dated New York, March 7th, 1870.
Yours, &c.,
MATHEWS & BETTS,
Compl ts’ Sol’rs.
To B. E. VALENTINE, Esq.,
Re'p’ts’ Solr.
Due service of within notice is hereby admitted.
Dated March 8th, 1870.
B. E. VALENTINE,
Solr for Def’ts.
17 Circuit court of the United States for the southern district of
New York. In equity.
ALONZO HITCHCOCK, GEORGE G. SAXE, AND
James H. Robertson
ag’ st
CHARLES M. TREMAINE AND WILLIAM B. TRE-
maine.
NEW YorK, March 9th, 1870—10 a. m.
Present, Mr. Betts, counsel for complainants.
Examination adjourned to March 11, 1870, at 11 a. m.
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C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 9
NEw YorK, March 11, 1870—11 a. m.
Present, Mr. Betts, counsel for complainants, and Mr. Valentine, coun-
sel for defendants.
Plaintiffs’ counsel offers in evidence re-issued letters- patent to Alonzo
Hitchcock, George G. Saxe, and James H. Robertson, dated October 5,
1869, No. 3665. It is marked Exhibit A.
Hiram D. OPDYKE, a witness of lawful age, produced on the part of
the complainants, having been by me first duly cautioned and sworn to
testify the truth, the whole truth, and nothing but the truth in the
matter of controversy herein, and being examined by Mr. Betts, of
counsel for complainants, deposes and says as follows:
1. Q. What is your name, age, residence, and occupation ?
A. My name is Hiram D. Opdyke. Iam 35 years of age. I reside at
Paterson, New Jersey. I am a minister of the gospel.
18 2. Q. Do you know the defendants, Charles M. and William B.
Tremaine ?
A. Yes, sir.
3. Q. What is their occupation ?
A. Dealers in musical instruments.
4. Q. State whether or not you ever purchased of the said defendants
any organs. If so, when, and how many ?
A. I did purchase two on November 30th, 1869.
5. Q. Are the two organs now shown to you the organs so purchased
aby you?
A. They are.
6. Q. When so purchased by you did they have the tremolo-attach-
ment which is now upon them ?
A. They did.
(Organs offered in evidence, and marked Exhibits B and C.)
7. Q. Are you conversant with the use and method of production of
sounds in musical instruments ?
A. 1 understand the principles of music and the methods of produc-
ing sound.
8. Q. Have you heard the two organs, Exhibits B and C, operated on
and played ?
A. Yes.
9. Q. Do you consider tkat the tremolo in said organs ts produced in
a substantially different or substantially similar manner to the tremolo
of the complainant ?
A. Substantially the same.
10. Q. Are you conversant with the method of the production of the
tremolo in the organs of the complainants ?
A. Yes, sir.
19 And being cross-examined :
11. X Q. How is your acquaintance with the operation of the
tremolo derived; is it merely as a dealer in organs or as a profes-
sional musician ?
A. As both.
12. X Q. How long have you been a dealer in organs?
A. Five years.
13. X Q. How many organs, with tremolo-attachments, have passed
through your hands in that time?
A. Thirty.
14 XQ. How many different kinds of tremolo were upon those or-
gans ?
10 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
15. X-Q. Will you name them ?
A. The fan and the valve; 1 refer to the complainants’ fan, and to
Carhart and Heedham’s, and the New Haven Melodeon Co.’s valve.
16. X Q. You have stated that you bought two instruments of the
respondents; was one of those instruments that you purchased sent to
A. K. Sanford, of 37 Greene street?
A. Yes, sir.
17. X Q. Was the other sent to Lewis Doty, No. 1 Third street ?
A. Yes, sir.
18. X Q. Did you purchase those organs at the request of the com-
plainants here ?
A. Yes, sir.
19. X Q. They furnished the means to pay for them ?
A. I paid for them.
20. X Q. They re-imbursed you?
20 A. Yes, sir.
21. X Q. Was it at their solicitation that you applied to the
respondents to see the operation of the instruments you purchased,
and subsequently purchased the same?
A. I had been in there before to look at their instruments ; I did not
go there first on their solicitation. :
22. X Q. When you went there in regard to this tremolo did you not
go at their solicitation ?
A. No, sir; I saw a notice of it in the paper before I came here.
23. R. D. Q. At the time that you bought the two organs, Exhibit B
and ©, did the defendants have in their possession a considerable or any
number of other organs like Exhibit B and ©, and with the same tremolo-
attachments which they are offering for sale ?
A. They had a considerable number of the same kind.
24. R. D. Q. Was one of the organs which you purchased known as
the Burdette organ? If so, which one?
A. Exhibit was.
25. “s D. Q. Do you know who was the maker of the other organ?
A. No, sir.
26. R. X. How many of the instruments which you designate as the
same kind in your answer to the 23d question had the tremolo-attach-
ment upon them ?
A. I think I saw some two or three more with the tremolo-attach-
= I am satisfied that they were on all the instruments there were
there.
27. R. X. Will you say that you saw the tremolo-attachments on any
besides those which you bought?
A. Yes, sir.
H. D. OPDYKE.
Subscribed and sworn to before me this 11th March, 1870.
JOSEPH GUTMAN, JR.,
Examiner, &e.
21 Circuit court of the United States for the district of New York.
V8.
ALONZO HITCHCOCK ET AL.
CHARLES M. TREMAINE ET AL.
«
GENT: Please take notice that we shall proceed to take proofs for
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C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 11
final hearing on the part of the complainants, under the 67th rule of
the Supreme Court, before a commissioner of the United States, at the
office of Saxe, Robertson & Co., at 417 Broome street, in thecity of New
York, on the 6th day of October, 1870, at 11 a. m.
Dated New York, “Oct. 5th, 1870.
MATHEWS & BETTS,
Complts’ Solicitors.
To B. E. VALENTINE,
Kesp’ts’ Solicitor.
CITY AND CouNnTY OF NEW YORK, 8s:
HENRY V. PELTON, being duly sworn, says that, on the fifth day of
October, 1870, he served the above notice on B. E. Valentine, esq., the
respondents’ solicitor herein, at the city of Brooklyn, by personally de-
livering to and leaving with him a copy of the same.
HENRY V. PELTON.
Sworn to before me this 17th day of October, 1870.
HENRY DE PEYSTER,
Notary Public.
NEw YORK, Oct. 6, 1870—3 p. m.
22 Present, M. Fred’k H. Betts, of counsel for complainant’, and -
B. E. Valentine, of counsel for defendant’.
Testimony on behalf of the complainant’, taken before me, Joseph
Gutman, jr., United States examiner, under ane pursuant to the 67th
rule in equity.
LEvt K. FULLER, a witness, of lawful age, produced on behalf of
the complainant, having been by me first duly cautioned and sworn to
testify the truth, the whole truth, and nothing but the truth in the
matter of controversy herein, and being examined by counsel for com-
plainant, deposes and says as follows:
1.Q. What is your name, age, residence, and occupation ?
A. Levi K. Fuller. I am 29 years of age. I reside at Brattleborough,
Vermont. [I am a manufacturer of organs.
2.Q. Are you familiar with the laws of sound and the method of pro-
duction of musical notes in organs? If so, what facilities have you had
to become acquainted therewith ?
A. Lam; I have been connected with the manufacture of organs for
more than 10 years; I should say organs and melodeons.
3.Q. Are you acquainted the various methods of producing a
tremolo note in organs or melodeons; and, if so, with what species of
tremolo ?
A. [am acquainted with all the tremolos used in organs and melodeons
since I have been in the business; with the valve-tremolo and the dif-
ferent tremolos patented within the last 15 or 16 years.
4, Q. Have you read, and do you understand, tle letters- patent granted
to Latayette Louis, Ne ovember 18, 1856, No. 16094, for an improvement
in melodeons ?
A. I have, and I do.
23 5. Q. Do you know the patentee ?
A. I do.
6. Q. What do you understand to be the mechanical means described
by said Louis in said patent ?
12 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
A. ITunderstand them to be the production of a tremolo by means of
a vibrating valve—vibrated by means which he describes.
7. Q. Is the method of producing a tremolo described in said patent
a practical one ?
A. I do not consider it a practical one.
8. Q. What opportunities have you had of forming a judgment as to
whether the method of producing a tremolo described in said patent is
a practical one or not?
A. I have frequently, in the last five years, performed experiments
with this tremolo, and have never been able to make it work satisfac-
torily.
9. Q. Why will not this tremolo work satisfactorily ?
A. I have never been able to make it work sothat any one would be
willing to purchase it on our instruments.
10. Q. What mechanical or other difficulties prevent it from being
practical ?
A. As a practical matter, I could not make the valve vibrate regular-
ly by the means described in said patent, and as a manufacturer of or-
gans I have not been able to find any mechanic who could make the thing
work satisfactorily. Mr. Louis told me—(Objected to by defendants’
counsel)—that he had not been able.
11. Q. Were tremolos on the principle described in said Louis patent
ever manufactured and sold in the market ?
A. Not that I know of.
24 12. Q. Mr. Louis describes a valve vibrated by a cord passing
through the swell, and attached to a crank rotated by wind-power.
Why cannot the valve be practically vibrated by those means ?
A. There is too much friction to the mechanical contrivance to be
overcome to do it, and after a while the thing will get out of order.
13. Q. Do you know, or have you ever been able to devise any practical
means for vibrating such a valve as is intended to produce a tremolo
under the Louis patent ?
A. I never have.
a9 @. How much time have you devoted to experiments in that direct-
ion
A. I cannot tell exactly, but a good many weeks, I should judge.
15. Q. Have you ever been assisted by the advice of Mr. Louis himself ?
A. No, sir.
16. Q. Has Mr. Louis been cognizant of your experiments, or have you
imparted to him their result ?
A. No, sir. As a manufacturer of musical instruments I find it neces-
sary to devote a good deal of time to experiments, and I did not mean
to say that I had spent a good many weeks experimenting on the Louis
patent.
17. What did you mean to say ?
A. On tremolos.
18. Q. How much time do you suppose you spent in experimenting or
attempting to operate the Louis tremolo ?
A. | cannot tell. I should suppose I had spent two weeks in trying to
make that valve vibrate.
19. Q. Are you a licensee of Mr. Louis under that patent ?
25 A. I am, or rather the firm of which 1 am a member is.
20. Q. Is [it] possible practically to convert a rotary motion in @
reciprocating motion with sufficient regularity in a musical instrumentas
to produce the necessary regularity of the parts to produce a tremolo ?
= I never have seen any one or been able to myself to do it success-
fully.
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C. M. TREMRINE ET AL. VS. A. HITCHCOCK ET AL. 13
21. Q. Are you familiar with the letters-patent to Alonzo Hitchcock
and others, dated October 5th, 1869, re-issue No. 3665, for tremolo-at-
tachment; and, ifso, what opportunities have you had for making your-
self familiar therewith ?
A. I am and have manufactured under this patent for 5 years or more.
22. Q. Have you examined the organ with the tremolo-attachment
marked Exhibit B in this case, and do you understand the method of
production of the tremolo therein ?
Y. I have and do.
23. Q. In that instrument and with that tremolo, is the tremolo-sound
produced in a substantially different or similar manner to that described
in re-issue 3665 ?
A. It is produced in a similar manner.
24. Q. Describe the method of the production of the tremolo in Ex-
hibit B?
A. The tremolo is produced by a revolving-cylinder placed in about
in about the same position as in the patent of 1869, No. 3665. The
cylinder has openings, which, in its revolution, shake or deviate the rays
of sound in a similar manner as do the fans described in re-issued pa-
tent 3665.
25. Q. Have you heard the tremolo produced ‘by this revolving-cylin-
der with openings in it?
I have.
26 26. Q. In your opinion is the tremolo produced in any degree by
cutting off a current of air flowing through the two openings in
such cylinder when such openings are presented to the openings in the
frame which holds said cylinder ?
A. I do not think that it cuts off the current of air flowing to the
reeds at all.
27. @. Have you heard the instrument operated when a partition is
placed in the center of the cylinder so as to prevent any passage of air
through the openings of the cylinder ?
A. I have.
28. Q. Does the effect produced differ substantially from that pro-
duced when there is no partition, but the cylinder is entirely hollow?
A. The effect is the same in both cases.
29. @. Have you heard the instrument operated when the rotating-
cylinder is placed at the back part of the instrument so as to leave a
large open space between it and the reeds ; and, if so, does the effect then
produced differ substantially from that produc ed when the cylinder and
frame are placed as close to the reeds as the instrument will allow ?
A. Lhave. The effect is substantially the same in both cases.
30. @. Would it be the same in case the cylinder when placed close
to the reeds operated as a cut-off ?
A. I do not know how you are going to place it there close enough.
I do not know anything about that.
31. Q. Have you made any experiments with a view of testing the
principal of the operation of this rotating-cylinder ?
A. I have.
27 32. Q. Please describe briefly such experiments and the results
which you have arrived at thereby.
A. The cylinder when placed near the reeds in its evolutions imparts
a tremolo to the sound. If you should put an intercepting medium be-
tween the cylinder, you would hear the sound just as plainly, and if you
were on one side of the instrument and the cylinder was revolving you
would hear the tremolo. If you were on the other side of the intercept-
14 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
ing medium you would hear it very slightly, if at all. I have placed
the revolving-cylinder at some distance from the reeds where the tone
was produced, and by placing an intercepting medium between the cyl-
inder and the reeds the effect was the same as in the first case. I have
not discovered in my experiments that there was any cut-off to the cur-
rent of air flowing to the reeds on account of the use of this cylinder.
33. Q. Look at the models now shown you, and state whether or not
they are those used by you in these experiments.
A. They are the same as used by me.
34. Q. Is this any substantial difference in the tremolo produced by
the fan, Exhibit G, the cylinder with two openings in it, marked Exhi-
bit H, and that with one opening in it, marked Exhibit 1?
A. There is no substantial difference.
(Exhibit G, H, and I put in evidence by complainants.)
35. Q. Look at the instrument, marked Exhibit OC, and state whether
it is substantially different or similar to that déscribed in re-issue
3665 ?
A. It is substantially the same.
LEVI A. FULLER.
Being cross-examined by Mr. Valentine, of counsel for defendant :
28 36. X Q. What is the full name of the firm which you area
member ?
A. J. Estey & Co.
37. X Q. What are the relations of that firm to the firm of which the
complainants, Saxe & Robertson, are the members ?
A. Saxe & Robertson purchased our instruments.
38. X Q. Do you put the tremolo-attachment, under the patent on
which the complainants base their claim in this action, on the organs
which you manufacture ?
A. We do.
39. X Q. By what authority—an assignment of the patent or by in-
structions of the complainants ?
A. By virtue of alicense from Saxe & Robertson.
40. X Q. Do Saxe & Robertson take from you the greater part of the
instruments which you manufacture ?
A. They do not.
41, X Q. To what extent does your familiarity with the laws of sound
go? Have you merely become acquainted with them in their practical
applications to organs or have you made the science of acoustics a
separate study aside from the practical application to your business ?
A. I have become familiar with the laws of sound as a practical mat-
ter connected with the manufacture of musical instruments, and have
studied to some extent the science of acoustics.
42. X Q. Have you ever experimented to ascertain the velocity or the
intensity of sounds?
A. I have.
43, X Q. What is sound ?
A. Pulsations of the air.
44, X Q. What is a tremolo ?
29 A. Tremolo, as applied to music, is a reflection or variation in
the sound.
45, X Q. Does not that same definition apply to a trill ?
A. Trill may be atremolo. There are different kinds of mechanical
tremolos.
46. X Q. When did you see Lafayette Louis last?
I PM BEIT ~
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Cc. M. TREMAINE ET AL VS. A. HITCHCOCK ET AL. 15
A. I cannot tell now whether it was 2 or 3 years ago.
(Defendants’ counsel offers in evidence an organ which is marked Ex-
hibit 5.
47, xa. Will you listen to the sound produced by playing upon Ex-
hibit 5, and tell me whether a tremolo is produced ?
A. A tremolo is produced.
48. X Q. Will you examine the organ, Exhibit 5, and state whether
or not it is an accurate model of the drawing attached to Louis’ patent,
and the specifications described in said patent ?
A. It is.
49. X Q. You have stated that you could not make. Louis’ tremolos
work satisfactorily; that you could not make the valve vibrate regu-
larly by the means described in Louis’ patent. Does not this valve
vibrate regularly ?
A. It does hot.
50. X Q. In what does the irregularity consist ?
A. The irregularity consists in the sudden stopping and starting of
the same, and a peculiar yank or jerk motion objectionable in such
pieces of mechanism.
51. X Q. Are not these hidden stops and starts, or yanks, regular in
their operation ; that is, are there not an equal number of yanks in each
equal portion of time, and does not the valve move through the same
portion of space each time ?
30 A. There are not always an equal number in an equal space of
time. It may move through the same portion of space.
52. X Q. How do you know there are not an equal number in an equal
space of time?
A. The jerking of the string, which is loose, by the crank, produces
a back-lash, which mechanics find very objectionable in machinery, and
I find this back- lash in this machine, which makes it run uneven and
noisy.
53. X Q. Does the fly-wheel, which isthe motive-power, make an
equal number of revolutions in every minute with the same intensity
of bellows-power applied ?
A. It will not always make the same number of revolutions.
54, X Q. Does not one complete vibration of the valve accompany
every complete revolution of the fly-wheel in this exhibit ?
A. Not always; the looseness of the string and the flapping of the
valve will give the wheel an unsteady and uneven motion.
55. X Q. Is the irregularity which you speak of in the vibrations of
the valve, such an irregularity as would be perceptible in the sound to
an ordinary listener ?
A. It would, if the wheel was moving rapidly enough. Musicians
would very readily discover it.
56. XQ. Are your answers, as above given about Exhibit 5, based
upon your experiments with that exhibit, or upon inference from the
previous experiments of others ?
A. My answers are based upon experiments performed upon instru-
ments other than the exhibit.
57. X Q. Do you see any other objection to the tremolo in Exhibit 5,
besides the _— irregularity, which you say musicians might per-
—
31 . There is an unpleasant noise connected with the working of
this ‘machine, and the sound or tremolo which it produces is very
harsh and unpleasant.
08. X Q. Have you ever made a tremolo-attachment after the plan de-
16 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
scribed in Louis’ patent, No. 16094, which operated as perfectly as the
present Exhibit 5?
A. I have.
59. X Q. Did the valve and other mechanical action operate as per-
fectly as Exhibit 5?
A. It did.
60. X Q. What did you mean, then, in your answer to the 12th ques-
tion, by saying that there was too much friction in the mechanical con-
trivance to be overcome in order to practically vibrate the valve in the
means described by Louis ?
A. Ifound, by experience, that the thing soon became inoperative,
either by the string becoming worn or some other part of the mechanism
giving out.
61. X Q. Do you still think that there is too much friction to practi-
cally vibrate the valve in the means described by Louis ?~
A. Asa manufacturer I should be unwilling to adopt so uncertain a
piece of mechanism. I think that the friction would very soon wear out
the machine.
62. X Q. Do you mean that the machine would wear out because so
much friction is attended upon the working of the valve ?
A. Yes, sir.
63. X Q. State where the friction is apparent.
A. In the crank, by the string running over a wire or other obstruc-
tion, and by the uncertainty of keeping the valve in a delicate position
enough to be vibrated by the wheel and string.
64. X Q. What parts, then. would wear out?
32 A. The string and everything about the valve; its bearings or
connections. Ifthe valve should warp or twist it would become
inoperative.
65. X Q. What are the bearings of the valve ?
A. Whatit vibrates on and what it is attached to.
66. X Q. How many distinct tremolo-attachments did you ever make
under Louis’ patent with the long valve?
A. I should judge that I made a dozen.
67. X Q. You have stated the method in which a tremolo is produced
not the tremolo in Exhibit 5 produced in the same way ?
A. It is uot.
68. X @. State the difference.
A. One is produced by a revolving motion and the other by a recip-
rocating motion.
69. X Q. Is not the tremolo produced in each case by a shake or devi-
ation of the rays of sound ?
A. It is; but the shake or deviation in the first case is pleasant and
unbroken, ‘while in the latter it is unpleasant and harsh.
LEVI K. FULLER.
70. R. D. Q. Would or could any respectable organ-builder sell to an
intelligent customer an instrument with a tremolo like Exhibit 5?
(Objected to.)
A. I have never known of its being done, and do not think it could be.
71. R. D. Q. You state in reply to the 69th x-interrogatory that the
tremolo was produced, in the two exhibits referred to, by a shake or de-
viation of the rays of sound. State whether the tremolo produced
33 by Exhibit 5 presents any peculiarity which does not appear in
the other exhibit whieh you have not stated.
in Exhibit B, namely, by a shake or deviation in the rays of sound. Is
,
}
=
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. = 17
A. The tremolo in Exhibit 5is nothing more orless than a swell, be-
ing opened and closed, and has all the peculiar muffled sound of a swell,
while the other tremolo, Exhibit B, is open and clear in the pulsations
wherever it is placed unobstructed in the instrument.
LEVI K. FULLER.
72. R. X Q. Cannot a good tremolo be produced by a rapid and reg-
ular movement of the swell in an ordinary organ ?
A. I have frequently tried to doit; but I get the muffled tone and
the harshness which I have described. You can produce a tremolo by
a swell, subject to these objections.
LEVI K. FULLER.
Sworn to before me this 6th October, 1870.
JOSEPH GUTMAN, JR.,
Examiner.
34 United States circuit court, southern district of New York. In
equity.
ALONZO HyrcHcocK, GEORGE G. SAGE, AND )
James Robertson
ag’st \
CHARLES M. TREMAINE AND WILLIAM B. TRE- |
maine.
Proofs taken on the part of the defendants herein, under and in pursu-
ance of the 67th rule in equity, before me, Joseph Gutman, jr., exam-
iner.
MAY 247TH, 1870—114 a. m.
Present, Mr. Frederick H. Betts and Mr. Fitch, for complainants; Mr.
B. E. Valentine and Mr. Geo. T. Curtis, for defendants.
WILLIAM KaRR, a witness, of lawful age, produced on the part of
the defendants, having been by me first duly cautioned and sworn to
testify the truth, the wholetruth, and nothing but the truth in the mat-
ter of controversy herein, and being examined by Mr. B. E. Valentine,
of counsel for defendants, deposes and says as follows:
@. 1. What is your name, age, residence, and occupation ?
A. William Karr ;.age, 41; residence, Karrsville, New Jersey ; occu-
pation, carriage. -maker.
35 (). 2. How long have you lived at Karrsville ?
A. All my life.
q. 3. Have you ever invented any new machines ?
A. Yes, sir.
Q. 4. Name some of them.
A. L invented a water-wheel,a tremulo for reed-instruments, a fasten-
ing or standard fastener for bolsters of heavy wagons, and a cherry-
pitter.
q. 5. About what time did you invent the tremulo for reed-instru-
ments ?
A. It was during the summer or fall of 1855 or 1856.
Q. 6. What do you mean by 1855 or 1856 ? |
A. I am uncertain whether it was 1855 or 18356. It was one of
those two years.
RECS. 398-399—2
cnRRET RIDES DED, cet tateteennes
— seestendeamnddemammnemaeess enna ay
18 ° c&. Me TREMAINE ETr AL. VS. A. HITCHCOCK ET AL.
Q. 7. Will you describe the tremulo which you invented ?
A. It was a fan, constructed of iron and tin, having four wings of tin,
and the shaft, iron.
Q. 8. How were these wings arranged on the shaft?
A. They were fastened with solder, and set, with reference to each
other, at right angles.
Q. 9. Were they at equal distances from each other around the shaft?
A. They were.
Q. 10. How many of these fans did you make?
A. I made one such as I have deseribed, and another that I have not
described.
Q. 11. Have you the one with you which you have described ?
Witness shows a fan and says, *‘ This is a part of it.”
(Offered in evidence by defendants’ counsel, and marked Defendants’
Exhibit No. 1.)
Q. 12. Will you explain bow it differs now from its condition when
used for producing a tremulo?
A. There were four wings instead of one, which were simply plain
tin, having no projections on the end. It was also longer, consid-
erably.
36 @. 13. How did it come in its present condition ?
A. I altered it for the purpose of trying some experiments with
the cherry-pitter.
Q. 14. Was that fan ever used upon a reed-instrument or melodeon,
to produce a tremulo ?
A. It was.
Q. 15. When was it used, and where?
A. During the summer or fall of 1855 or 1856, (I am uncertain which,)
at the melodeon manufactory of Smith & White, Brass Castle, New
Jersey. -
Q. 16. How did this fan operate?
A, It had two wheels geared together. They were attached to the fan
by means of a band. We then w ound a cord on the shaft of one wheel,
and drew off the cord by hand, which gave motion to the fan.
The witness exhibits the wheel around which the cord was wound.
(Wheel offered in evidence,and marked Defendants’ Exhibit No. 2.)
Q. 17. How was the other affixed to the shaft?
A. The other wheel was similar to this. They were used for the pur-
pose of increasing the motion. The other wheel was attached by means
of a band; the other wheel was connected by a cord which wound on
the shaft of the fan.
Q. 18. Did you show this invention to any one at the time it was
made; and if so, state to whom ?
A. Having made the discovery, I called the attention of a mannamed
Dearborn, first. I next consulted with Mr. Smith, (Mr. John A. Smith,
of Brass Castle, one of the firm mentioned.)
Q. 19. What was the result of your consultation with Mr. Smith?
A. The making of the fan, Exhibit No. 1, and taking it to his estab-
tablishment for trial.
yi q. 20. What was done there with the fan ?
A. We placed it on an instrument and tested it; put it in mo-
tion by the means I have described.
Q. 21. What was the result of the experiment?
A. It was appoved of by Mr. Smith. It produced a trembling or vi-
bration in the tone of the instrument, and accomplished what we ex-
pected it to.
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 19
Q. 22. State what it was you expected it to do?
A. We expected to produce a vibration or trembling in the tone; we
had no name for it at that time. :
Q. 23. Have you ever seen a fan-tremulo since the time when your
experiments were made at Smith & White’s, other than the fans which
you yourself made, or were made by your direction ?
A. I have not.
Q. 24. Please look at Plaintiffs’ Exhibit C, and listen to the sound.
produced by the tremulo thereto attached, and state whether such
sound resembles or differs from that produced by the fan which you ap-
plied and operated in connection with a reed-organ at Smith & White’s
in 1855 or 1856 ?
A. The same thing exactly, so far as tone is concerned.
q. 25. Will you look at the fan in Exhibit C, and state whether or
not there is any difference in the shape and mode of producing its
effect, between this and the fan referred to in your last answer, which
was made by you?
A. There is not.
Q. 26. Where was your fan placed with reference to the line of reeds?
A. Immediately behind them.
Q. 27. Tell us whether it was parallel with the line of reeds, or at an
angle with them.
A. It was parallel.
Q. 28. How was its position in relation to the keys?
A. It seems to me it was higher than this. I think the instrument
did not admit of its being so low. I think it was not on the same level
with the keys.
38 (. 29. State whether or not, your fan was placed at right an-
gles with the keys of the instrument, as is the case in this ex.
hibit. :
A. It was.
Q. 30. What first led to your discovery of this means of producing
a tremulo ?
A. I was turning a square stick in a wood-turning lathe, and whist-
tling at the same time, when I discovered a tremulo in the tune.
Q. 31. How did these holes come in the tin wing, Exhibit No. 1?
A. After it had been laid aside for the purpose of a fan, | put them
in, in order to try some experiments with the cherry-pitter
@. 32. Tell us whether or not the fan, Exhibit No.1, was, at the
time you first made and used it, similar to the fan on Exhibit C in
shape ? :
A. Yes, sir; it was.
@. 33. Did it differ from it in any other way than in material used?
A. It was not as large in diameter. There was no material differ-
ence.
Q. 34. How far was Smith & White’s factory, at that time, from the
place where you lived ?
A. Some six miles.
@. 35. Did you leave this fan, Exhibit No. 1, at that place (viz, the
factory) any length of time?
A. 1 think I brought it away immediately.
Q. 36. What was the other fan made of, that you have already spoken
of as having built ?
A. Made of wood.
Q. 37. Was it similar to this ?
A. It involved the same principle, but diftereutly constructed. The
9) C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
wings were placed between two rims of wood. There were eight or ten
wings in one rim, and about half the number in the other. Suppose
a round stick of wood, four inches in diameter, had a cavity
39 turned in the wood on either end, or both ends, to the depth of
one inch, leaving a rim on the ends, also a rim in the middle; in
these rims the Wings were inserted.
@. 38. Did you leave this fan-wheel at Smith & White’s factory for |
apy length of time?
A. I did not.
Q. 39. Was this fan, Exhibit No. 1, applied and used upon a reed-
instrument by you after you brought it back from Smith & White’s?
A. I think not.
@. 40. Was the other fan so used ?
A. Yes, sir.
Q. 41. What was the effect of the other fan as used upon that in-
strument ?
A. Similar to this one.
Cross-examination by Mr. Betts:
X Q. 42. What was your business at the time vou first made the dis-
covery, as you say, of a tremulo?
A. Working at carriage-making.
XQ. 45. How long was it after you first noticed the effect of turning
a square block of wood on a lathe, upon your whistling, that you
went to consult with Mr. Smith? —
A. My best recollection is that it was not long. It may have been
three or four weeks.
X Q. 44. Before you went to consult with Mr. Smith, did you make
any contrivance for the purpose of exhibiting the effect which you
thought you had discovered ?
A. Not that | remember.
‘XX Q. 45. When you went to consult with Mr. Smith, did you have
the fan, marked Exhibit No. 1?
A. I think I did not.
X @. 46. Did you make that fan while you were at Brass Castle con-
sulting with Mr. Smith ?
A. I did not.
XQ. 47. Where did you made it?
A. I had it made at Washington, N. J., partly. The shaft [ made my-
self.
40 X @. 48. Who made the parts of the fan that were made at
Washington ?
A. George P. Watts.
X Q. 49. Did he fasten the wing on to the shaft?
A. He did; that is, the wings.
X Q. 50. Who made the two wheels you have described, and used in
counection with the fan?
A. I myself made them.
X Q. 51. Did you make the shaft and the wheels after returning from
consulting with Mr. Smith ?
A. Yes, sir.
X Q. 52. How long after?
A. I can’t say positively. I think if was soon.
X Q. 53. How long after the shaft and wheels were made was it that
the wings of the fan were applied to the shaft?
A. It may have been a day or two. Very soon.
}
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 21
X Q. 54. After you got the wheels made, and the wings applied to the
shaft, what did you do with the instrument?
A. I took it to the manufactory of Smith & White. ®
X Q. 55. About how much longer was the shaft and fan, as originally
constructed, than Exhibit No. 1?
A. I can’t say exactly. It may have beén twice as long. I think it
was very nearly the length of the reeds of a four-and-a-half octave instru-
ment.
X Q. 56. Was there any wheel attached to the shaft of the fan?
A. I think there was not. On further consideration, I believe there
was.
X Q. 57. How large was the wheel ou the shaft of the fan, as compared
with Exhibit No. 2?
A. Not over, I should say, one-sixth the size. Iam not certain about
that, however. I wish to correct one statement in regard to those
wheels that I made some time ago. I stated that the fan was connected
to the wheel that drove it, by means of a band which was wound
41 | around the shaft of the fan a number of times, which, I believe, is
not correct. This wheel, Exhibit No. 2, or one similar to it, drove
the fan by means of a band passing from this, or one similar to it, to
the wheel or pulley on the shaft of the fan.
X Q. 58. What was the motive-power applied to the wheel, Exhibit
No. 2, or one similar to it?
A. The power itself was a man-power. I applied it by winding a
cord on the shaft of the wheel, Exhibit No. 2, or one similar to it.
X Q. 59. This cord, then, required to be wound up by a separate oper-
‘ation, and then drawn off by a person standing beside the instrument,
in order to produce a rotary motion to the fan?
A. Yes, sir.
X Q. 60. The rotary motion of the fan was not, then, as applied by
you, to be communicated by the person playing the instrument, but by
another person ?
A. Yes, sir; another person. That is the way we operated the experi-
_ ment. I operated it at one time by a weight from the same point.
X Q. 61. When you say that you operated it at another time by a
weight from the same point, do. you mean that you wound the cord on
the shaft of the wheel, Exhibit No. 2, and then attached a weight to
the end of the cord and let it run down? ;
A. Yes, sir.
X @. 62. Did you ever connect the fan, Exhibit No. 1, with any in-
strument by any motive-power which was within the control of the
operator of the instrument, so that he could use the tremwio from time
to time, as he desired, without ceasing bis playing to wind the cord up
on the shaft?
A. No, sir.
X Q..63. How was the fan and the wheel, Exhibit No. 2, fastened
into the instrument upon which it was tried at ‘Smith & White’s factory?
A. The wheels were geared in a box. One end of the fan was
42 also attached to the same box, and the other end of the fan, I
think, was in a block of wood, and both, to the best of my recol-
lection, were attached to the instrument by means of wood screws.
X Q. 61. How long were you at Mr. Smith’s factory trying this fan in
one of his musical instruments ?
A. To the best of my recollection, three or four hours,
X Q. 62. When you went away, did you take with you the fans that
you used, and the box in which they were geared ?
22 C. M. TREMAINE ET AL. VS. A. HITCHCOCK Et AL.
A. I did.
X Q. 63. Did you regard the trial of the fan at Smith’s factory as any-
thing more than an experiment as to the effect which would be produced
upon the musical notes by such a mechanism ?
A. Nothing more than the effect produced by means of a fan on the
tones of a reed-instrument.
X Q. 64. Was your fan applied to the instrument in Smith’s factory in
such a way that you regarded it then as being perfected, and adapted
for introduction into the market ?
A. No, sir.
X Q. 65. Was it anything more than an experiment?
A. It was an experiment made with a view only of ascertaining the
effect on the reeds. .
X Q. 66. What kind of an instrument was it on which you tried this
experiment with your fan?
A. It was a melodeon.
X Q. 67. Was the melodeon substantially like that one now exhibited
to you? (Compl’ts’ Exhibit D.)
A. I rather think that it was an old style of melodeon, with the bel-
lows like that now exhibited. I rather think it was. Iam not positive.
X Q. 68. Was the fan attached to the top of the bellows, so as to rise
and fall with the action of the bellows?
A. The fan did not rise and fall?
X Q. 69. To what, then, was it attached ?
43 A. Taking a second view of the bellows, I conclude the top
was permanent. It must have had a deck, and a fan attached to
the deck.
X Q. 70. When the fan was attached to the instrument, as you tried
it, could you shut down the lid of the instrument ?
A. I can’t say as to that. I don’t remember.
X Q. 71. Did you ever apply this fan to any other instrument besides
the one at Mr. Smith’s factory ?
A. I did not.
X @. 72. What did you do with the fan and wheels and box after you
took them home?
A. Laid them aside.
X Q. 73. How long afterwards was it that you altered the fan for the
purpose of trying experiments with the cherry-pitter ?
A. Say eight or ten years.
X @. 74. Where was the fan and box and wheels in the mean time?
A. In my shop.
X Q. 75. Had they been used for any purpose during that period, to
your knowledge?
A. No, sir.
X Q. 76. In what part of the shop did you keep them, and among
what kind of articles?
A. I kept them on the second floor, most of the time, among articles
but little used.
X Q. 77. Did the fan, as originally constructed, have the square pieces
of tin on it now soldered to the ends of the piece of wood screwed on
to one of the same?
A. No, sir; it did not. Those were a part of the cherry-pitter experi-
menter.
X Q. 78. How often during the ten years which elapsed between your
experiment with the fan and. its conversion into a portion of the cherry-
pitter did you take any notice of it, or use it for any purpose?
C. M. TREMAINE ET AL. VS. A. WITCHCOCK ET AL. 23
A. I saw it frequently, but did not use it for any purpose.
44 X. Q. 79. Have you taken out patents for other inventions be-
fore and since your experiment with the fan ?
A. I have not.
X Q. 80. Since the conversion of that fan into a cherry-pitter, where
has it been, and what have you done with it ?
A. It has been laying in the upper part of my shop, and I have done
nothing with it.
X Q. 81. When were you first applied to, to give your evidence in re-
gard to this fan-experiment ?
A. I was first consulted in regard to it during the past winter by
Messrs. Saxe & Robertson—this house where we are at present.
X Q. 82. Did you, at that time, know that you had any portion of
the original fan ?
A. No, sir; I don’t know that I did. I was not asked to produce it,
and did not make an effort to look for it.
X Q. 83. How long after you made the fan, Exhibit No. 1, did
you make the other fan described ?
A. Asnear as I can remember, within a short time.
X Q. 84. Why did you make the second fan of different construction
from the first ?
A. I made it of a different length for the purpose of using it upon a
home-made instrument. I don’t know why I put more buckets in it (or
fans) unless, possibly, it was to get clear of running it so fast.
X @. 85. What motive-power did you use with the second fan ?
A. I used two or three. I would set it in motion by blowing it. [
also set it in motion by wind from the bellows; and I think I had also
a weight attached to it.
X Q. 86. This second fan that you made, did you do anything more
with it than try experiments on a home-made instrument at your own
home ?
A. No, sir; I did not.
X Q. 87. During how long a time did you make those experi-
ments ?
45 A. Lam uncertain about the exact length of the time. I was
quite busily engaged with it for several months at intervals.
X Q. 88. After trying the two fans as you have described, did you
abandon them ? g -
A. Yes, sir ; ] suppose I did in one sense of the word.
X Q. 89. What do you mean by “ in one sense of the word ?”
A. What I mean is, that I expected to carry out the application of
the fans to reed-instruments, but the particular purpose tor which
those fans were made was accomplished, and they were consequently
laid aside.
X Q. 90. Did you ever carry out the application of a fan for produe-
‘ ing a tremzlo in reed-instruments ?
A. I did not.
X Q. 91. Did you regard either of the fans, as then applied by you,
as a perfected invention ?
A. Not as applied.
X Q. 92. Where is the second fan that you made ?
A. I do not know.
X Q. 93. How long is it since you have seen it ?
A. [think I have seen it within two years.
X Q. 94. Where is the instrument with which you say you made ex-
periments with the second fan ?
ee See ee ed
a eet ee mae ye
ee an CNN Ao AN tn ee
eA LE OO CN AP Nt A CI
Doerr near naranee Cnacoarrapnpag an tothe SE AT A LLL ALL DLL LAL LLL LOT
- ¢ Fee iT ae Pos LioNe see, Seat OAS LAR
i |
I |
a
rt
|
Cc nn a ah Oe NAAR NT CONS NT te AACE
SA TARY, POY NSIS
24 C. M. TREMAINE ET AL. Vs. A. HITCHCOCK ET AL.
A. A part of it is at C. M. Tremaine & Bro’s
X Q. 95. What part of it ?
A. The case and bellows.
X Q. 96. Where is the rest ?
A. Ido not know.
X Q. 97. At whose request did you send the instrument to C. M.
Tremaine & Bro’s ?
A. Mr. Valentine’s.
erga aie aga calls for the production of the instrument.)
X Q. 98. Can you make a drawing of the second fan made by
you ?
46 A. Lean make something that will give an idea of it.
X Q. 99. Please make such drawing.
(Drawing made by witness and produced, representing the second
fan made by him, and marked Complainants’ Exhibit F.)
Mr. B. E. Valentine produces, in answer to call of complainants’ so-
licitor for the melodeon upon which experiments were tried by the wit-
ness with the second fan, an instrament which is marked Complain-
ants’ Exhibit E.)
X Q. 100. State the dimensions of this second fan representedin the
drawing marked Exhibit F.
A. Lshould have to — of the dimensions from my recollection. I
have not seen it in two years, I think. Four inches in diameter; five
or six inches long ; the Shaft Was three or four inches in diameter.
X Q. 101. How was that fan applied to the instrument Exhibit
E ?
A. The fan was placed ina box. The reeds were placed in the square
hole. The box with the fanin it was situated immediately over the
reeds.
X @. 102. How many reeds were there ?
A. I think I did not have more than two at any one time in {he in-
strument.
X Q. 103. In which direction did the shaft of the fan run ?
A. It was probably both ways. I can’t say about.that. The box
was loose.
X Q. 104. For what purpose was the large round hole in the deck of
the instrument used ?
A. I believe it was for the purpose of driving the fan |by wind] pass-
ing into or coming out of the bellows.
= @. 105. For what purpose was the small round hole used ?
A. To the best of my recollection the same purpose.
47 X Q. 106. How could this fan be operated in connection with
this instrument, Exhibit E, by a weight ?
A. The weight was connected to the driving-wheels used in con-
nection with the tin fan.
».< Piaeh Where did the weight run down in the instrument, Ex-
hibit 1?
A. The weight which gave motiun to the wheels passed over a pully
on the corner of the case, ayd, I think, ran down outside of the instru-
ment.
X Q. 108. Are the bellows attached to Exhibit E force-bellows or
exhaust-bellows ?
A. Lam not well acquainted _— the terms used to describe bellows.
I presume they are force-bellows
X Q. 109. Did they drive the air up through the reeds, or suck it
down through the reeds ?
C. M. TREMAINE ET AL. VS, A. HITCHCOCK ET AL. 25
A. They drove itup. I also at one time had them in the form of an
exhaust-bellows, in which the air was drawn through the reeds.
X Q. 110. What is the discolored mark around the large hole in the
deck of Exhibit E caused by ?
A. I do not know, unless it has been used for a valve.
Redirect by Mr. Valentine :
R. D. Q. 111. You have stated that you did not regard either of the
fans, as then applied by you, as a perfected invention. Did anything re-
main to be done to your fan to complete its utility, except to perfect
and adapt the means of turning it ?
A. Sofar as the effect of the fan is concerned, it was all we desired.
The means of turning it was not complete.
R. D. Q. 112. Did you receive any suggestions from Smith as to
making your fan ; or did you merely go to him for his opinion of its
utility ?
A. Mr. Smith gave me no suggestions as to the construction of the
fan. Having described the tremulo as best I could to him, I asked for
his opinion in regard to its utility. .
48 R. D. Q. 113. While the fan remained.in your shop, after it was
brought back from Smith’s factory, was it where it could be seen
by persons coming into your shop; and do you know whether it was
so seen by different parties ?
A. The fan that I brought from Smith’s, though in a public place, not
concealed, was, however, I think, not seen by many. It was seen by
- some. The other one was seen by many; that is, the wooden one, and
I was asked many times what it was for.
kh. D. Q. 114. Did you explain its use and operation in answer to
these inquiries ?
A. Sometimes I did.
Recross by Mr, Betts:
R. X. Q. 115. State the names and residences of any persons to whom
you explained the use and operation of either fan.
A. They were mostly my neighbors and customers. I do not re-
member, that I think of now, individual instances.
Redirect by Mr. Valentine:
R. D. Q. 116. When were you first applied to by the defendants here-
in, or by any one in their behalf, to learn what you could testify in re-
gard to the invention that you have been describing ?
A. On Thursday of last week, I think.
Reecross:
R. X Q. 117. How do you fix the time when you made the first fan ?
A. I fix it by a circumstance Which happened in 1857, and know that
it was a year or two before that.
hk. X Q. 118. What circumstance do you allude to ?
49 A. 1 met Mr. H. K. White at Washington; was talking with
lis him in regard to a music-class just started, which 1 know was in
1857.
R. X Q. 119. How do you know that this conversation with Mr.
White was in 1857 ?
A. The music-class was formed immediately after a revival at Mans-
field Baptist church. I, myself had joined the church, and was teach-
ing the class. It was the winter of 1856 and 1857.
R. X Q. 120. How do you know that you made the first fan one or
4gwo years before the winter of 1856 and 1857 ?
26 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
A. I made the fan while a man by the name of Thomson was at
work for me, and he stopped work during the winter of 1855~’6.
W. KARR.
SAMUEL S. THATCHER, a witness, of lawful age, produced on the
part of defendants, being by me first duly cautioned and sworn to tes-
tify the truth, the whole truth, and nothing but the truth in the mat-
ter of controversy herein, and being examined by Mr. B. E. Valentine,
counsel for defendants, deposes and says as follows:
Q. 121. What is your name, age, residence, and occupation ?
A. My name is Samuel 8S. Thatcher; age, forty-four; residence,
Washington, Warren County, N. J. ; occupation, melodeon-maker.
Q. 122. How long have you lived in Washington, and how long have
you been engaged in that business ?
A. I have lived in Washington my life-time, and have worked at that
business some seventeen or eighteen years.
Q. 123. Did you ever work for Smith & White; and, if so, when ?
A. I worked for Smith & White some eight or nine years; from about
1850 upward. I may have worked for them before that time.
Q. 124. What work did you do?
50 A. I did all parts of it, but principally what is called action- work
of melodeons. Sometimes it is called trap-work.
Q. 125. Did you ever make any tremzwlo-attachments for melodeons
while working there ?
A. I made two or three.
Q. 126. At what time ?
A. To the best of my knowledge it was in 1855.
Q. 127. Describe the attachments which you made.
A. There is a fan in that instrument, (Complainants’ Exhibit C,) which
is as near like it as I can describe it. It was a shaft made out of pencil
cedar, the wings made out of veneering. It was hung with two boxes,
that is, hung on gudgeons, or the extremities of the shaft. The extremi-
ties of the shaft played in boxes.
Q. 128. About how long were they ?
A. I don’t recollect, but not over two feet long; probably not as long. ,
@. 129. Were they more than one foot long?
A. Yes, sir.
Q. 130. How were they placed in the instrument, as compared with
the fan in Complainants’ Exhibit C ?
o They were placed as near like that as I ean recollect, back of the
reeds.
q. 131. How did it run with reference to the line of reeds ?
A. It run parallel with the reeds.
Q. 132. How, with reference to the keys ?
A. It run in behind the keys, arranged the same with the keys, par-
allel with the keys behind, just as that one does in Exhibit C.
Q. 133. State whether or not the line of direction was at right angles
to the line of length of each individual key, as in Exhibit C?
A. I think it was.
Q. 134. What was the effect of the fan upon the sound from the reeds ?
A. It produced the tremwlo sound.
61 @. 135. Was the effect stabestain the same as is now produced
by the fan in Exhibit C ?
A. The effect is the same.
Q. 136. How many of these fans did you make and apply, to the best
of your recollection ?
A. Two or three.
,
BS ox
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 27
Q. 137. Did you apply the same fan to more than one instrument?
A. I think we did. :
Q. 138. Did you regard the effect produced, that is, the tremulo, a
complete invention ?
A. I did not.
Q. 139. In what respect was it deficient ?
A. I did not think that it made a very musical noise at that time.
®. 140. Did anything remain to be done to complete its utility, as
far as producing the tremulo was concerned ?
A. I don’t know that there did ; the effect was there.
Q. 141. Were these fans placed upon the regular-built melodeons,
such as were turned out by the factory ?
A. They were. I would state, in a melodeon of the kind called a
piano case melodeon, there is a pumper. We had to make that a trifle
more narrow to get the fan in.
Q. 142. During how long a time were you engaged in a applyi ing these
fans ?
A. Probably a week or ten days.
Q,. 143. Were these fans, as applied to the melodeons, seen in opera-
tion by many persons ?
A. They were not kept secret. I suppose they were seen. There were
a great many persons—shop-hands and a great many persons coming
in. I cannot recall the names of the persons, more than it was worked
in public.
Q. 144. Did Smith express himself as pleased and satisfied with the
invention ?
(Objected to as hearsay.)
A. [think that Mr. Smith had not much opinion of it at that time.
52 q. 145. Under whose instructions did you make the fans?
A. I am under the impression it was White & Smith, the firm
I worked for then. I don’t know whether it was one or both of them.
(). 146. Were the melodeons to which you applied them the same in
construction as Exhibit C, as far as regards the socket-board and
kind of beilows?
A. No, sir; there are so many kinds of bellows to melodeons and or-
gans, that you can hardly distinguish between them; they are all suc-
tion-bellows, but are placed in different positions. Jt was used on suc-
tion-bellows. They had a socket-board. The principle is the same, but
the construction of the bellows is different.
(J. 147. Is the only essential difference in the position of the bellows?
Kes a the position and the shape—the position which way it is
placec
@. 148. Was the objection to the tremulo which you have spoken of,
that it did not produce a tremulous note, or was it that the tremulous
note, when produced, was not liked ?
(Objected to as leading.)
A. The tremulous note was not liked—was not appreciated.
(J. 149. For how long a time did these tremwulo-attachments remain
about the shop of Smith & White ?
A. I think I saw them there probably two years after they were
made.
SAMUEL S. THATCHER.
Adjourned to May 25th, at 103 a. m.
28 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
MAY 25TH—104 a. m.
Present, Mr. Betts, counsel for complainants; Mr. Valentine, for
defendants. .
53 Samuel S. Thatcher’s examination continued :
Q. 150. What name was given to this fan by the men in the
shop?
(Objected to, as immaterial and hearsay.)
A. We had several names for.it. It was called Karr’s patent, a beater,
a quaver; that is about all the names I recollect we gaveit. One other
name was a fan.
@. 151. How did this fan operate to produce its effect ?
A. It revolved, beat upon the air.
Q. 152. Are you acquainted with R. W. Carpenter ?
A. Ilan, sir.
@. 153. When did you first meet him, and where ?
A. It was nine or ten years-ago, at Washington, New Jersey, in the
shop of Mr. White. Smith had left the firm at that time.
@. 154. Was Carpenter at work in the factory when. you first made
his acquaintance.
A. No, he was not, when I first made his acquaintance.
@. 155. Was he at work there at any time?
A. He was, shortly after.
. 156. State, to the best of your recollection, the year when Carpen-
ter was working there?
A. It is about ten years ago, as near as I can recollect; that would
make it in 1860; it might have been 1859.
Q. 157. Had he worked in‘that factory before the time which you
have just spoken of ?
A. He had not.
@. 158. Were the fans, or any one of them which you have described,
in the factory while he was there ?
A. There was not, to the best of my knowledge. We had moved the
shop, and probably they were destroyed at the time.
Q. 159. Do you know, or ean you set forth any other matter or thing
which may be a benefit or advantage to the parties at issue in this
54 cause, or either of them, or that may be material to the subject
of this your examination onthe matters in question in this cause ?
If yes, set forth the same fully and at large in your answer.
A. I don’t know that Ido. There is a statement made here by me,
that Mr. Smith did not think much of the sound the fan produced. I
referred to the tone it produced and not to the fan itself. I don’t recol-
lect what was said about the fan. It produced the same tone as Com-
plainants’ Exhibit C. .
Cross-examination by Mr. Betts:
X Q. 160. Under whose direction were the two or three fans you have
mentioned made, and attempted to be applied to the melodeons at Smith
& White’s factory ?
A. Smith & White’s.
X @. 161. What are the full names of Messrs. Smith & White ?
A. Jobn A. Smith and Henry K. White.
X Q. 162. Do you know whether or not the origin of the attempted
application of the fans was the suggestion or experiment of William
Karr, who has just been examined ?
A. It was.
e-
e*-
Cc. M. TREMAINE ET AL. VS. A. HI!ICHCOCK ET AL. 29
X Q. 163. Were you present, or did you know of the experiment which
Mr. Karr made‘at Smith & White’s factory ?
A. I was present at the time it was brought there.
X Q. 164. How long afterwards was it that the first of the two or three
fans you have mentioned was made?
A. It might have been two or three weeks; shortly after.
X Q. 165. Were all the fans made about the same time ?
A. I think they were.
X Q. 166. Were any one of the fans ever applied to a melodeon in
such a way that, as applied, they were regarded by Messrs. Smith,
55 or White, or yourself, as a suecessful application of the tremulo
to a musical instrument, or as what could be regarded as a prac-
tical ** tremulo-attachment ?”
A. They were.
X Q. 167. Which one?
A. One that I made, with wings made of veneering, like that one in
Exhibit C.
X Q. 168. How many wings did that one have?
A. I think it had four.
X Q. 169. How did the other fan, er the other two fans that were
made, differ from this one ?
A. They were made lighter. The one fan was made by starting a groove
in the shaft and putting veneering inthe groove. I don’t recollect whether
it had four wings or two.
‘XX Q. 170. Do you recollect distinctly more than two fans ?
A. Ido not. Iam under the i impressien [ made three, but two I know
of—one with a straight groove, and one with a crooked grove.
X Q. 171. What do you mean by the one with the crooked grove ?
A. The shaft was the same with the other one, but the groove and the
WwW ny was spiral around the shaft. It had the same effect.
X Q. 172. About what were the dimensions of the wings and shafts of
each of those two fans?
A. I think one of them was four inches, about, and the other prob-
ably three inches. I mean the whole diameter of the fan. The diameter
of the shaft was not over, probably, one-half an inch, or five-eighths of
an inch.
xX Q. 173. When you say that Mr. Smith did not like the tone of the
fan, in what particular did he object to it?
A. He objected to the tone it gave.
X Q. 174. Did he think that the fans, as applied, injured the quality
of the notes of the instrument?
A. He thought it did not increase the tone.
56 XQ. 175. Did he think that the vibration produced by the
fans, in the way you applied them, were deficient in necessary
regularity to be effective ?
(Objected to.)
A. I don’t think that he did.
X Q. 176. In what particular, then, did Mr. Smith object to the tone?
A. The peculiar noise that it made at that time. We thought it a
gee oe noise.
X Q. 177. Was that the reason that Smith & White gave it up after
trying the fans for a short time ?
A. That is the only reason that I know of.
X @. 178. Were any of the methods of applying these two fans to the
melodeons which you used, regarded as sufficiently practical to bring
fans into use?
30 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
A. I think they were.
X Q. 179. Which ones ?
A. It was the ones like the one in Exhibit C. The one that we
last!y put in.
X Q. 180. In what way was the fan applied to the melodeon ?
A. I think with a w eight.
X Q. 181. As that fan was applied to the melodeon, was it within the
control of the operator oa the instrument, so that he could use it from
time to time as he saw fit, without stopping his playing to wind it up?
A. I think it would run some time—I cannot tell how long. It
would wind and run down. The length of time I could not say.
X Q. 182. Was there any means of stopping it after it had com-
menced to run, and then setting it a-going again when the operator
desired to use it?
A. I don’t recollect.
X Q. 183. Did not the fan, in all cases, have to be wound up and
managed by some person other than the party who was at the time
playing on the instrument ?
A. I think the player would wind it up before he commenced
to play, and when he saw proper would let it run. There was
another way. That way was to run it like an old-fashioned turning-
lathe. That, I think, did not auswer a very good purpose. The object
was to run it with the foot.
X Q. 184. That method of running it was not practically successful,
then ?
A. There was one way or the other, I could not say. It might have
been the other way that was not successful.
X Q. 185. After trying the several ways of applying and running the
fan you have mentioned, did not Mr. Smith finally get disgusted with
it, and tell you to “ pitch the thing out of the window ;” that “it would
not work,” or words to that effect ?
A. He was disgusted with the tone it produced. I don’t recollect
him saying anything about the machinery. I got disgusted with it
myself. I did not like the noise. His expression was: “ Pitch the
damn thing out ;” but he had reference to the tone it produced.
X Q. 186. After trying these experiments in 1855, did Smith & White
and yourself abandon the fans or cease to make any attempt to apply
them to the melodeon ?
A. | don’t remember that there was any other attempt made in the
shop to apply the fans.
X t). 187. What became of the fans?
A. They were aro:ind the oll shop at Brass Castle till a new shop
was built, and we moved up into the village.
X Q. 188. Were they regarded as of any value or practical import-
ance ?
A. I don’t think they were.
X Q. 189. When you moved the shop were they destroyed as things
of no value?
A. I do not know, sir, what became of them. I never saw them after
we were in the new shop, to my recollection.
58 X Q. 190. From that time until you saw the exhibits in this
case, did you ever see any other tremulos similar to those you
made ?
A. I never saw but one.
X Q. 191. What and where was that ?
A. It probably was in the neighborhood of two years ago, near Port
Jervis, N. J., in an Estey organ, I think.
Aad
oi
=e A RES CeO"
C. M. TREMAINE Ei AL. VS. A. HITCHCOCK ET AL. 31
Redirect examination by Mr. Valentine:
R. D. Q. 192: You have stated that one way in which you ran the fan
was like an old-fashioned turning-lathe. Please examine the drawing,
Exhibit 3, (which we offer in evidence,) and state whether the melo-
deon as run in that method, resembled or differed from the mode repre-
sented by the drawing.
A. That is something like it.
R. D. Q. 193. In what way, if any, does the drawing differ ?
A. I don’t see that there is any difference. We had a pedal; prob-
ably that is about all the difference.
R. D, Q. 194. What do you mean by a pedal?
A. I mean a pedal to be used by the foot.
Recross by Mr. Betts:
R. X Q. 196. Did you ever see a turning-lathe run with a rope around
a Shaft?
A. Yes, sir.
k. X Q. 197. Did you have any spring to bring the pedal up again?
A. I don’t recollect.
R. X Q. 198. Was not the apparatus you have ‘described simply a cord
wound around the shaft, with the end attached to a pedal, by which
you could draw the cord off once, and then would have to wind it up
again on the shaft by hand, just as you did the weight-attachment ?
A. I do not recollect about that matter.
59 R. X Q. 199. Would you regard either the weight or the pedal
method of operating the fan, as you remember them, as suffi-
ciently practical and easy to be controlled, to sell in the market as an
ordinary attachment to an organ or melodeon ?
(Objected to.)
A. I think that we had that part of it; the running of this fan, either
the one way with the weight or with this last attachment. We could at
that time, but now our arrangement would not probably be sufficient.
There are improvements in this thing.
R. X Q. 200. Do you remember the method of operating those fans by
a weight or pedal so distinetly that you could now, from your recollec-
tion, attach a fan to a melodeon or organ, in exactly the same way in
which you did it then, in all its parts? ;
A. I might or might not. It was not my suggestion making this
machinery, but only part of it. Part was my suggestion, part Mr.
Smith’s, and part Mr. White’s. I did the work.
R. X Q. 201. Then I understand you, that you could not now, merely
from recollection, attach a fan to a melodeon, and say with certainty,
that that was the way in which you applied it in Smith & White’s
factory, in 1855?
A. | might or might not. I might err in some things. In working
at it, sometimes building one part might call for another and bring the
thing to my mind.
SAMUEL 8S. THATCHER.
WILLIAM THATCHER, a witness, of lawful age, produced on the part
of the defendants, having been by me first duly cautioned and sworn to
testify the truth, the whole truth, and nothing but.the trath in the
matter of controversy herein, and being examined by Mr. Valen-
60 tine, of counsel for defendants, deposes and says as follows:
@. 202. What is your name, age, residence, and occupation ?
A. William Thatcher; age, fifty-three; residence, Washington, New
Jersey; and occupation, sawyer, at present.
OO NE OG ON RL oem me
32 C M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
Q. 203. Did you ever work for the firm of Smith & White ; and, if
so, when ?
A. I did; it was during the years 1855 and 1856, to the best of my
knowledge.
Q. 204. What was your work ?
A. Bellows-maker and action-fitter on melodeons.
Q. 205. While working there did you ever see any tremulo-attach-
ments on their melodeons ?
A. Yes, sir.
@. 206. Describe them.
A. It was a fan similar to the one in Exhibit C. It revolyed by
means of a cord drawn out, which was wound upon the shaft.
@. 207. What was the effect produced by the revolving-fan ?
A. It formed a tremulant sound.
Q. 208. How many of these fans did you see there applied to melo-
deons?
A. I think there were two.
Q. 209. Did the effect produced by the revolving-fan resemble or dif-
fer from the effect produced by the revolving-fan upon the sound from
the reeds in Exhibit C?
(Witness, hearing Exhibit C played, answers :)
A. I should consider it the same thing.
(). 210. In what year was this?
A. It was between the periods of 1855 and 1856, to the best of my
knowledge. It might have run into 1857, for what I know.
Cross-examination by Mr. Betts:
X Q. 211. In what year did you stop working for Smith &
White ?
61 A. I think I did not work for them after 1857 ?
X Q. 212. You say you saw a fan operated on a melodeon by
having a cord wound around the shaft, and then drawn off. How was
it drawn off ?
A. By the hand of the operator.
X Q. 213. How could he play while drawing the cord off ?
A. He was only getting the sound, using one hand.
X Q. 214. What you saw, then, was only an experiment, was it?
A. Yes, sir; as far as I know, it was.
X Q. 215. Did you see this experiment tried more than once ?
A. Yes, sir; I think I did.
X @. 216. How many times ?
A. [ could not say.
X Q. 217. Do you know what was thought of the result of the ex-
periment at Smith & White’s factory by Smith & White and others ?
A. The tremulo was considered as good as could be; but they did
not think it added to the utility of the.instrument.
X Q. 218. Did you see or know of all the experiments that were tried
with these fans while you were at the factory ?
A. I don’t know that Idid. I think probably not.
X Q. 219. After trying the experiments with the fans do you know
whether they were abandoned ?
A. I think about that time the business changed hands, and the shop
was removed; and what was the consequence after that I don’t know.
xX Q. 202. Did you ever see any fans applied to any organs after
that 7?
A. No, sir; I think not.
en
“>
-
es
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 33
X Q. 221. Do you know whether, after trying the experiment, the
fans were thrown aside as of no practical importance or value?
62 A. I could not say as to that. 1 stopped work in the shop
after it was moved.
X Q. 222. Did you ever, after that, hear anything more about them ?
A. I don’t know. I think I did hear occasionally tremulos spoken of
as neighborhood talk.
Redirect by Mr. Valentine ?
R. D. Q. 223. Were the tremulos spoken of by the neighbors referred
to as the same that they had seen in Smith & White’s shop?
(Objected to as hearsay.)
A. I think they were called “ Karr’s patent.”
WM THATCHER.
Defendants’ counsel offers in evidence certified copy letters-patent,
granted to Layfayette Louis, dated November 11th, 1856, No. 16094.
Received in evidence, and marked Defendant? Exhibit No. 4.
Defendants’ counsel offers in evidence certified copy letters- - igi
granted to Riley W. Carpenter, dated June 4th, ‘1867, No. 65,472
Received in evidence, and marked Defendants’ Exhibit No. 6.
63 At a stated term of the circuit court of the United States of
America for the southern district of New York, in the second cir-
cuit, held at the United States court-rooms in the city of New York,
on Thursday, the thirtieth day of March, in the year of ou rLord oue
thousand eight hundred and seventy-one.
Present, the honorable Samuel Blatchford, circuit judge.
ALONZO HITCHCOCK l
US.
CHARLES M. TREMAINE ET AL. \
This cause coming on to be heard on the pleadings and proofs:
Mr. Benjamin E. Valentine and Mr. George T. Curtis argue the case
on the part of the defendants.
Mr. Frederic H. Betts argues, in reply, on the part of the complain-
ant’.
FRIDAY, March 31st, 1871.
The court meets pursuant to adjournment, and is opened by proclam-
ation.
Present, Judge Blatchford.
64 ALONZO HITCHCOCK
U8.
CHARLES M. TREMAINE & AL.
This cause being still on argument :
Mr. George T. Curtis argues the case on part of the defendants.
Mr. F. H. Betts argues, in reply, on part of compl’t’.
65 At a stated term of the circuit court of the United States, held
in and for the southern district of New York, at the city-hall, in
the city of New York, on the 23rd day of May, 1871.
Present, Hon. Samuel Blatchford, district judge.
RECS. 398-399—3
Oe meg tet I OO ORE PN
—
34 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
ALONZO HITCHCOCK, GEORGE G. SAXE, &
James H. Robertson
8.
CHARLES M. TREMAINE AND WILLIAM B. TRE-
maine.
This cause came on to be heard at this term, and was agreed by coun-
sel, and thereupon consideration thereof, it was ordered, adjudged, and
decreed—
That, prior to the 27th day of June, 1865, one R. W. Carpenter was
the true, original, and first inventor or discoverer of a certain new and
useful invention, to wit, a tremolo-attachment to musical instruments.
That letters-patent of the United States were duly issued to said
Carpenter for said invention, bearing date the 27th day of July, 1865,
and numbered 48366.
66 That said letters-patent were afterwards duly assigned to the
complainants and by them duly surrendered, and new letters-
patent of the United States duly issued to them for the same invention,
bearing date the 18th day of May, 1869, and numbered 3444.
That afterwards said new letters were again duly surrendered by the
complainants, and again re-issued and new letters-patent of the United
States duly issued to them for the same invention, bearing date the
fifth day of October, 1869, and numbered 3665.
That the complainants are entitled to the exclusive use of the said in-
vention and improvement.
That the defendants, Charles M. Tremaine and William B. Tremaine,
have infringed said letters-patent, by having sold or caused to be sold
one moremusical instrument having tremolo-attachments constructed,
by combining with said instrument or instruments a rotating-fan, ar-
ranged at right angles to the keys and parallel to the line of reeds, and
actuated by means equivalent to those shown in the complainants’ pat-
ent, to wit, by a wind-wheel, and also by having sold or caused to be
sold one or more musical instruments having tremolo-attachments con-
structed, by combining with said instrument or instruments a
67 hollow rotating-cylinder with a horizontal axis, having two open-
ings in it opposite each other, and extending from end to end of
the cylinder, said cylinder being actuated by equivalent means to that
described in complainants’ patent, and arranged at right angles to the
keys and parellel to the line of reeds.
That the complainants are entitled to a perpetual injunction restrain-
ing the defendants from making, using, or vending either of said trem-
olo-attachments combined with musical instruments or otherwise, or
from otherwise infringing said letters-patent, by making, using, or vend-
ing the application of means to the instrument by which the air may
be agitated to produce a tremulous note, as described in said letters-
patent, or by making, using, or vending the arrangement of a fan or
agitator in the instrument at right angles to the keys, and parallel to
the line of reeds or pipe-mouths at any convenient distance from them,
as described in said letters-patent.
That the complainants are also entitled to an account of the profits
derived by the defendants from said infringements, and that it be re-
ferred to Mr. Joseph Gutman, jr., a master of this court, to take and
state said — accordingly, and report thereon with all convenient
speed.
68 That the complainants are also entitled to the costs of this
suit.
~£r
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 35
All further directions are reserved until the coming in of the master’s
report.
SAMW’L BLATCHFORD.
(Endorsed :) Circuit court of the United States, southern district of
New York. Alonzo Hitchcock et al. vs. Charles M. Tremaine et al.
Decree. Matthews & Betts, compl’ts’ sol’rs, 31 & 33 Pine st.
GENTLEMEN: Take notice that the within-proposed decree will be
presented for settlement and signature to the court on the 23rd day of
May, 1871, at the opening of the court.
MATTHEWS & BETTS,
Compl ts’ Solrs.
Filed May 23, 1871.
69 Circuit court of the United States, southern district of New York
In equity.
v8.
ALONZO HITCHCOCK ET AL.
CHARLES M, TREMAINE ET AL.
Testimony taken on reference before Joseph Gutman, jr., master under
decree for accounting of May 23, 1871.
N. Y., MAY 27, 1871—1 p. m.
Present, Mr. Betts, complainants’ counsel, and Mr. Valentine, counsel
for defendants.
Mr. Betts puts in evidence copy of decision and decree. It is marked
Exhibit A.
CHARLES M. TREMAINE, one of the defendants, having been duly
cautioned and sworn, deposes and says:
I am one of the def’ts in this suit. My business is the sale of musi-
cal instruments, including organs and melodeons. I was not the
70 agent for R. Burdett & Co. for New Jersey and some Southern
States. I was not their agent at all for any territory; not directly
at all. I bought and sold the organs of R. Burdett & Co., of Chicago.
1 bought their organs. I bought them of Messrs. Lyon & Hly [Healy,] of
Chicago, who are the general agents. We were the agents of Lyon &
Healy for the territories of northern part of New York, and for a _ por-
tion of Pennsylvania; for city of New York; for eastern part of Penn’a,
except Philadelphia, Pa., and for New Jersey, except near Phila’ and
Connecticut ; Southern Atlantic States. We had the privilege of work-
ing. We had a written contract with Lyon & Healy through the agent
with whom we made the arrangement. We had previously sold the
Shoninger organs. We dropped the Shoninger organ about the time we
took up the Burdett, by degrees. This was the organ manufactured by
the B. Shoninger Melodeon Co., of New Haven, Conn., and sold by B.
Shouinger & Co., of New Haven. The Burdett & Shoninger organs are
the ones for sale of which this suit was brought; that is, those
71 containing the tremolo.
(). Did vou pay any of the expenses of this suit?
(Objected to; objection overruled, & exception noted.)
A. I do not know that we have. I do not know how to answer. I
suppose that we are bound to pay it. We have had no arrangement.
36 Cc. M. TREMAINE ET AL. VS. A. HITCHCOCK. ET AL.
We had no bills sent in to us. We have a bill-book showing organs we
bought of Shoninger & Co. We had no arrangement with Burdett &
Co. as to price; did not arrange with Burdett & Co. at all; had with
Lyon and Ely {Lyon & Healy] an arrangement, through their agent,
with whom we drew the contract. We had a written contract about the
organs. This is the same contract I spoke of before. We had only a
verbal arrangement with Shoninger & Co. as to price of organs bought
from them.
@. What was the arrangement with Shoninger & Co.?
(Objected to; exception.)
I cannot answer that; it is so long since we bought any of them.
72 I cannot tell without referring to the bill-book. I can tell by
reference to the book. We had a small price-list of Shoninger &
Co., representing his organs.
The sales-books will show the amount of organs sold by us that we
had from Lyon & Ely [Healy] & from Shoninger & Co. I have with me our
bill-book. I produce it in evidence. (It is marked Exhibit B.) Ihave
also the sales-book and produce it. (It is marked Exhibit ©.)
The pamphlet shown me is our circular with the price-list torn out.
I do not know when that was issued ; perhaps a couple of years ago.
We have had another circular and price-list since that. This has no
price-list on it.
I have no other books with me. (Circular put in evidence subject to
exception, marked Exhibit D.) I produce price-lists of Burdett organs,
and subsequent price-lists of Shoninger & Co.
(Shoninger price-list put in evidence, marked Exhibit E; [exception] by
def’ts.)} This is not complete so far as Shoninger’s instruments
73 are concerned ; it is all we issued. I eannot say whether it con-
tains the prices of all of his instruments that wesold. Wehave no
other price-list that lam aware of of Shoninger’s instruments. (Bur-
dett price-list put in evidence, and marked Exhibit F ; exception.)
I have no other papers with me. I cannot tell the arrangement with
Shoninger without the bills and letters we have had from them.
(Witness directed by the master to produce the bills and letters re-
ferring to the prices and also the written agreement with Burdett. (Ex-
ception [by def’ts.} ) All the Burdettorgans were bought of Lyon & Ely,
[Healy,| with some few exceptions. In one or two cases we purchased
back from parties who had bought them. They all came from Lyon and
Healy originally.
(Adjourned to June 2, at 1 p. m.)
N. Y., JUNE 2, 1871—1 p. m.
Present, counsel as before and the witness, Charles M. Tremaine.
Witness further examined :
74 I have the agreement with Lyon & Healy with me. I produce
it. (It is put in evidence, marked Exhibit G.)
(Objected to by counsel for defendants ; exception.)
I had no written agreement with Lyon & Healy regarding the pur-
chase of organs from them.
(Objected. Exception [by def’ts.])
A. We had two difterent arrangements, one as to organs with the
tremolo, and one as to organs without. The organs with the tremolo
were to ‘be charged $12.50 extra; that is the whole arrangement except
in regard to payment.
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 37
Q. Is it not a fact that you bought of Lyon & Heally, at fifty per cent.
oft from their regular price-list of all the Burdett organs, in which
price-list the organs with the tremolo-attachment connected with them
were in each case $25 higher than the same style of organs without the
tremolo-attachment ?
A. Yes. The price-list now shown me is the price-list accord-
75 ing to which are bought the Burdett organs, at 50 per cent. off
from these prices with perhaps a few exceptions.
(Price-list offered in evidence, marked Exhibit H.) What I meant by
exceptions is, that there might be one or two kinds not in this list.
We bought organs according to that price-list when we bought, except-
ing 30 and 31; for those the list-price H is $50 higher than what we
bought at. I think all the styles on the list from 15 up were furnished
with the vox-humana tremolo. The reason for the $50 less, on 30 and
31, than the price-list price, I suppose was to get us to take hold of
them.
Q. Taking as an example your sale entered in your sales-book, Exhibit
C, under date of Nov. 5, 1870, of two styles, 9 Burdett organs, at $225,
do you not mean by the entry under that date that you sold the style of
organs corresponding to No. 9, in Exhibit H, at the price marked in Ex-
hibit H, less a discount which you have noted under that date of
76 35 per cent ? :
A. Yes.
Q. ty that an example of the corresponding entries in other cases of
sales
A. Yes, sir. By theentry under date of Nov. 25rd, 1870, where I say one
style, 26 Burdett organ nett, $153.34, on the book, I mean a case where we
probably sold to some one who had just that amount to pay; that it was
sold at that price without any regular arrangement as to discount; nett
means that in some cases. By nett is meant there that we made no
special arrangement as to discount, but agreed as to some particular
price. The difference in cost of pipe-top organs aud others is near $100—
$80 or $90.
(). Look at the entry under date of March 26, 1870, pipe-top organ,
style 30, nett $600. Which was the regular price of that according to
your price-list ?
A. $600 is the regular price of the organs. The regular price of or-
gan No. 14894, sold March 15, 1870, was $425. The regular
77° ~_—s price of organ No. 14723, sold March 26, 1870, was $275. The
regular price of organ No. 14141, sold same date, was $650. The
regular price of organ No. 14726, sold same date, was $275 as entered.
The regular price of organ No. 14772, sold on same date, was $280;
the price of stool, which is included in the sale in the book, I cannot
remember. I have not the circular and price-list with me which we got
out after Exhibit D. Exhibit D had the price-list, Exhibit H, in it, and
was part of it. I have with me no other circular & price-list. We got out
two; the other does not differ much from Exhibit D. (Witness directed
to produce second circular and price-list at next meeting by master.)
We purchased from Lyon & Heally no other than the Burdett organs.
I have no letters or bills with me showing arrangement with Shon-
inger & Co. We have nothing except what is in the bill-book, Exhibit
B. It was a verbal arrangement at 5 % off, and 5 % additional off for
cash. We sometimes paid cash, sometimes bought on time. The in-
voice-book will not probably show. We generally paid cash.
78 There were some instances in which we did not pay cash. The
organs we bought of the Shoninger Co. were bought at 50 % off
POET AOE ROB TNE OTR. ROOM TI TERE «kak. Rabo
os
A
38 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
from the price-list, Exhibit E. I presume we .bought also from them
some styles not mentioned i in Exhibit E. I think they have made sone
styles not on that exhibit. I do not think that Shoninger made any
difference in the price of organs with tremolo on or off. In Exhibit E,
the $10 more charged for organs with tremolo on, is that he charged ex-
tra for the tremolo as I see by the list. I see he does make a difference in
price. Besides Exhibit E, I believe we had no other price-list of the Shon-
inger organs. In the books where a sale of Tremaine organs is entered,
some of them were the Shoninger organ. The New Haven Organ Co.
organs entered are not the Shoninger organs. In the price-list of
Shoninger & Co., now shown, I cannot say whether the prices correspond
to those at which we bought. That list is a new list to me. The
price of the 4octave organ at the time we dealt with them
79 was what it was billed to in the bill-book, nett $42.50; that had
no tremolo on. All the 5 and 6 octave organs of Shoninger &
Co., had not the tremolo inthem. We have sold Shoninger organs
without the tremolo. We sold 16 without and 23 with the tremolo
since October 5, 1870.
On the books the numbers are the distinguishing characteristics of
organs with and without the tremolo.
@. How do you know by the numbers?
A. The styles with the tremolo are a different number according to
the price-list than the same style without the tremolo.
Adjourned to June 7, 1871, at 11 a. m.
80 JUNE 7, 1871.—11 a. m.
Present, counsel as before.
Examination of the witness, Charles H. Tremaine, resumed :
I was mistaken when I said we had sold 23 Shoninger organs. I find
that were but 22. I have with me and produce the new price-list called
for at the last meeting. Style 31 is not the list; its price was $475.
The list is the same as Exhibit F, already in evidence.
Cross-examination by Mr. Valentine:
In the testimony which I have given about these organs, my answers
have referred to organs sold with the tremolo and also without the
tremolo. We have sold both Burdett and Shoninger organs, both with
and without tremolo. We have bought Burdett and Shoninger organs
both with and without tremolos. Where we bought an organ (Burdett)
with the tremolo we paid in accordance with our contract only $12.50
more than for the organ without tremolo; and organs without tremo-
los cost within $12.50 as much as the organs with tremolo. When
81 we sold the Burdett organs, we made a distinction between those
with tremolos and those without. When we sold them to our
regular agents they were billed at $25 extra with a discount off, of 35 %
off, some 40 % off; it is not so marked in the books. There was no
distinction made with Shoninger as to our arrangement with them when
we bought of them. We went according to the price-list. In each
Shoninger organ that we bought the tremolo was in. I can from my
books make a statement showing the exact price which each tremolo-
attachment cost us and what we sold them for.
And being further examined by Mr. Betts:
Red. We never paid Lyon & Healy any less than $12.50 additional
for the tremolo-attachment to the organs purchased of them. We never
“- —~
Cc. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 39
paid them less than 50 2 off for the organs excepting the two cases
spoken of. Never paid them less for cash than for time purchases.
Shoninger did not charge us any more for organs with the tremolo on
then with the tremolo off.
$2 Adjourned to June 10, 1871, at 1 p. m.
N. Y., June 10, 1871.
Present, counsel as before.
The witness Tremaine being further cross-examined :
Re-x. The paper now shown, marked Exhibit 1, is a correct statement
of the costs, the prices at which sold, the prices received, and the total
profits from our sales of the tremolo-attachments connected with the
Shoninger organs ?
A. The book-keeper can téll that better than Ican. We left all the
accounting to him. Our business was not confined to selling organs,
but we sold large numbers of pianos also. |
Redirect by Mr. Betts:
Red. We have not sold any Burdett or Shoninger organs unless entered
on our books, except by oversight, if it has occurred. None of our agents
ordered direct from Lyon & Healy and paid us the difference. The
books I have produced are, so far as I know, complete books of
83 all our business in the sales of organs. The tremolo in Burdett
organ has not been the leading feature of that organ. The lead-
ing features have been the celeste stop, the violincello, the campanilla
perfectione, and the general quality and tone regulating the instrument.
I do not consider that the tremolo has been a leading feature. We
charge extra for all the other stops and features that I have mentioned.
Some of the Burdett organs are mentioned without any of the attach-
ments I have mentioned. Some of the cheaper styles—the first three
or four on the list—are made without any of the attachments. The
vox-humana attachment on the price-list are $25 more than the
organs without, retail. The campanilla is $50 more. They are all of them
from $25 to $50 more than without. The difference between No. 29
and No. 30 is $25. (Exhibit H.) In 29 A, (Exhibit F,) there are six
stops. In 30 A there are eight stops. All the difference is the number
of stops; there is one more stop besides on the 30 A, which swell can
be procured as well without the stop, with the knee. Sometimes we call
that stop forte. It gives the same effect as the swell used by the
84 knee. Itisof not much account. Sometimes they putit flute, as in
30 A. Flute and forte amount to the same thing.
In style 26 B, the celeste stop is charged extra for. Exhibit D was
taken from the list, not written by me; we published it for sales.
I have not recently been to Saxe & Roberts to get permission to use
the vox humana. It is not a fact that we cannot sell our instruments
without the tremolo. Weare shipping instruments to-day. In every
style where the tremulo appears on the list we specify it as Carpenter’s
vox-humana. In any other stops we have not mentioned the in-
ventor’s name. In Exhibit D we emphasize the vox humana. I do
mean to say that it is not a leading feature. I do not think that
50 % of the sales of the Burdett organ is due to this. tremwlo, that is
not the feature of the Burdett organ.
Further cross-examination by Mr. Valentine:
Re-x, There are 2 distinct forms of Carpenter’s vox humana tremulo ;
40 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
85 one is a fan and the other is a roller. There are three or four
different kinds of tremolos, which can be attached to organs.
CHARLES M. TREMAIN’.
BENJAMIN E. VALENTINE, called as a witness and being examined
as @ witness by Mr. Betts, counsel for complainants, deposes and says :
I have not been to plaintiffs’ to procure a license on the grounds
that def’ts were greatly embarrassed to get rid of their stock, or could
not. I think, on Thursday last, 1 went to the office of Saxe & Rob-
ertson, and stated to them that Messrs. Tremaine, the def’ts had in their
warerooms a number of organs with the tremolo-roller attached. I
stated to Mr. Robertson that I would like to know what sum he would
take to allow us to sell those instruments in their present condition ;
that the def’ts had estimated the cost of putting on an entirely diiferent
tremolo-attachment; and if we could make an arrangement to sell the
organs without making the change at an expense no greater than
86 it would cost us to make the change, we would like to make such
an arrangement as a transaction entirely distinct from these legal
proceedings which are pending, and which would be without prejudice
to either, it being merely a question of economy. Mr. Robertson .
answered, that it did not make much difference to him; that he would
see Mr. Hitchcock, and let me know in a few days.
B. E. VALENTINE.
ALONZO HITCHCOCK, a witness called on behalf of complainants,
having been duly cautioned and sworn, and being examined by Mr.
Betts, says:
The list now shown me is as correct a list as I could make from the
def’ts’ books of their sales of Burdett organs. I only went over it
once. The Ist column indicates the date of sale; the 2nd the style;
the 3rd the number; and the 4th column the price; and after that
‘ rates of discount, or other remarks regarding sale. It is put in evi-
dence, marked Exhibit I. I have copied none that were marked
failures.
87 And being cross-examined by Mr. Valentine:
X. I think I have copied the list as it was in the book. It is
possible that some instruments that I have on that list may have been
sold twice.
ALONZO HITCHCOCK.
Examination further adjourned to June 14, 1871, at 3 p. m.
N. Y¥., June 14, 1871—3 p. m.
Present, counsel for the parties as before.
The witness Hitchcock being further cross-examined by Mr. Valen-
tine :
X 2. What do you charge for the tremolo to Este & Mason & Ham-
lin ? :
(Objected to by Mr. Betts. Question ruled out. Exeeption.)
oe
ok. hoe act
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 4t
DEFENDANTS’ TESTIMONY.
JOHN M. TREMAINE, produced on the part of the def’ts, being
88 examined by Mr Valentine, says:
*I am book-keeper for def’ts. Have kept their accounts ever
since they have been in their present business. I have prepared a state-
ment of the receipts & sales of def’ts of Burdett organs. I produce the
statement which I have prepared. It is correct, and made from the
books.
(Statement put in evidence. marked def’t’s Exhibit 2.)
Q. Is this statement a correct account of all the Burdett organs,
with tremolo-attachment, sold by def’ts, by the style, number, date of
purchase, cost of organ, cost of tremolo, date of sale, price received for
organ, and price received for tremolo?
A. Yes; unless there may be some clerical errors.
q. The total price paid for all tremolu-attachments bought and sold
by def’ts was $2,750. The gross amount received was $3,756.31. The
difference is $1,006.31. Out of that sum there has been no ap-
89 portionment of allowance for expenses of the business. The
prices paid are the prices we paid in Chicago. The price received
is the price delivered to purchasers. I have not computed the expense
of freights here.
Q. Were you charged freight by weight of the instrument ?
A. Yes.
@. Did you employ clerk-hire to exhibit the tremolo? —
q. Did you employ agents to exhibit that tremolo?
(Objected to. Withdrawn.)
@. What was the total amount of your sales of all musical instra-
ments embraced in this business ?
(Objected to as immaterial.)
Q. Did you make special advertisements of the tremolo?
@. What was the total amount of the whole profits of your business
during the time covered by this statement ?
A. The profits from Jan’y 1 to Dec. 31, 1870, were $2,790.52, and no
more. The profits for the remaining 7 mo’s would be no greater
90 in proportion. That was the profits on organs without tremolos,
pianos, &c. .
@. What was the total amount of sales during that period ?
(Objected to. Question ruled out. Exception.)
Where I[ have noted on the statement organ returned, it was an ex-
change for one tremolo-organ for another. They are not included in
the addition; itis put in but once. Only the second sale is ineluded.
In some cases I have made memorandum “advertizing.” Where we pay
cash for advertizing we get 50% off from the regular price; but we
made some contracts where we took organs at the regular price, and
paid in organs at the regular price. In that case there are no profits on
the organ. In cases where discrepancy appears in the amount on books
and amount on this statement, the statement represents the real money
basis of the transaction, and where the organ is put on the books as
sold at full price, and payment taken in advertizing, the result is the
same as though we had paid full price for the organ. This is
91 the case in all cases where the statement is marked advertizing.
The organ given on money basis exactly the same as we paid for
it. Some of these organs were sold in the South. One of the partners
went with them with a concert troupe with a view of advertizing the
organs. In those cases there was no profit made on the instrumeuts.
42 Cc. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
Most of those organs were sold to churches. We allowed 35 % discount
on those organs. We sold many to the troupe, and they sold them
And being cross-examined by Mr. Betts, x’d:
I am the father of the def’ts. Oct. 21, 1869, on sales-book, the price
is $283.34 for No. 14975. On the list, Exhibit 2, it is $183.34. That is
a clerical error ; it should be $283.34. (List amended by master.) The
det’ts bought styles 30 and 31 at 50 % off, less $50 from the price on the
price-list, I believe; both Ithink. They paid less than the amounts on
price-list, less 50 % off. In this list, Exhibit 2, I have made no deduc-
tion for styles 30 and 31, less than the 50 % off for the tremolo. There
was an arrangement between det’ts and Lyon and Healy, beyond
92 the agreement for tremolo. The difference is made a basis in the
price-list. I do not know whether we ever had 30 & 31 with the
tremulo out. Ido not know of any special arrangement other than the
discount; never heard of any. The price of the tremolo is fixed ata
certain specific sum, no matter what organ it goes into.
On sales-book, the item under head of Dec. 1, 1869,
organ No. 14602, the discount off was 38 %; have
no account of concert-giving here. They were, at. that time, reckoned
in the general expenses of the business—partially so. I think the store
bore a portion of the expenses—not all. Parties sometimes wanted to
get a different style of organ, in which case we would take back the
one they first bought and give them another one. We usually took
them back at the same price paid unless the organ was injured—that
is, in an exchange. These exchanges were generally fora higher-priced
organ—they paying the difference.
Red. :
The statement of sales of Shoninger organs, Exhibit 1, was made out
by me. It is correct, so far as I know, clerical errors excepted.
93 The 50 % off for cash advertisements was procured by my son
Charles; he had been in the publishing business.
JOHN M. TREMAIN’,
N. Y¥., JUNE 27, 1871—12 m.
Sample of Exhibit 2.
Present, counsel as before.
1. Counsel for defendants offers to prove that all the tremolo-attach-
ments upon the Burdett organs sold by the defendants, and all those
upon the Shoninger organs sold by the defendants, contained severally
three elements, each of which were patented, viz: In the Burdett or-
gan, the wind-motor, the cylinder, and the element which the court de-
cides belongs to complainants; in the Shoninger organ, the wind-
motor, the connection between the motor and the fan, and the com-
plainants’ element, in order to show that the sale of the tremolo-at-
tachment embraced a proportionate profit on each of these elements.
(Objection ; ruled out; exception.)
Offers to produce exhibits showing these elements.
94 (Exhibits admitted.)
2. The def’ts having testified that they have sold both organs
with and without tremolo, and also pianos, offer to show the total
amount of these sales of instruments without tremolos, and also the
total amount of the profits made in their business during the term em-
braced in the account.
(Obvjected to; ruled out; exception.)
3. Def’ts offer to prove the amount of profits which they have made
P ikon:
, stata
P 2 incites:
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 43
by the sale of tremolo-attachments during the term embraced in the
account by showing the total amount of sales in their business, the
total amount of sales of tremolo-attachments, and the total amount of
profits in their whole business—the amount of profits upon the tremolo
to be obtained by the usual proportion.
(Objected to in present form as a whole; ruled out in its present
form, def’ts having leave to make distinct offer of each branch ; excep-
tion.)
4, Def’ts offer to prove what the proportionate profits would
95 be by making a proportion in which the first term is the amount
of sales in their whole business, the second term the am’t of
profits on their whole business, the third term the am’t of sales of
tremolo-attachments, and the 4th term the am’t of profits sought;
the time of all the above transactions being the time mentioned on the
accounting.
(Objected to, but not objecting to any evidence of any expenses in-
curred by def’ts in and due to tbe purchase and sale of the tremolo-
attachments ; ruled out; exception.)
5. Offer to prove what the expenses of conducting the business were
during the term embraced by the accounting and by a proportion in
which the Ist term and 3rd term are the same as in the preceding 4th
offer, and the 2nd term, the amount of such expenses, should be de-
ducted from the gross profits resulting from the sale of the tremolo.
(Objected to as offered, but no objection as to proof of any ex-
96 penses incurred in the purchase or sale of the organs containing
such tremolos, more than would have been incurred by the pur-
chase and sale of the same organs without the tremolos. Master says
that he will admit such evidence, but rules out offer as made by def’ts.
Exception.)
Hearing closed.
97 Descriptive catalogue of the Burdett organs.
[Picture of combination organ with top. |
New York: C. M. Tremaine & Bro., 435 Broome street.
98 GENERAL DIRECTIONS.
[CUT. |
1. As all reed-organs need more or less care, we deem it not out of
place to give a few general rules how to take proper care of them so
that they may be kept in good order.
2. Keep the instrument dry and free from dust and dirt, as exposure
to dampness and dust is the most prolific source of trouble in reed-
instruments of all kinds.
3. Itis of the greatest importance that a reed-instrument should
be kept at a moderate temperature, and dry.
Do not keep it shut up continually, when notin actual use; but leave
it open in fair weather, and always push in the draw stops when not in
use. This will keep dust and dirt from getting into and finding a lodg-
ment in and around the reeds.
The one simple rule is to keep the instrument dry and clean.
99 Descriptive catalogue of the Burdett organs, containing Car-
penter & Burdett’s new improvements, patented June Ist, 1867.
[CUT.]
New York: C. M. Tremaine & Bro., 435 Broome street, 1870.
100 Price-list of Burdett organs.
44 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
In panelled black-walnut cases, oil and shellac finish, carved trusses,
two blow-pedals, and orchestral-swell.
ONE SET OF REEDS.
Style.
ee arr rere re rr rarer gs okt eae
BD. RMS, WHE VO DUOMO 2. oot cc cetera sseesees are
TWO SETS OF REEDS.
6. Five octaves, four stops, viz, diapason, melodia, viola,
ROD in ns oes pe hnde cus eesscees de awewaeeebueeeeeeakes
7. Same, with vox humana, five stops..........-..-.--...-
8. Same as 7, with campanella, six stops ...............--..
9. Five octaves, five stops, viz, flute, diapason, viola, sub-
PO TIONING oak 6 ik i TS Ee eas
11. Five octaves, six stops, viz, harmonic attachment, flute,
diapason, sub-bass, viola, vox humana....-.-........... va
DOUBLE CELESTE.
25. Five octaves, two stops, viz, celeste, vox humana....
26. Five octaves, four stops, viz, celeste, forte, sub-bass,
PE NIN 64.90 05 0 sake Ried sis oes 40s 4 ieee
28. Same as 26, with harmonic attachment. ...........-....
24. Same as 26, with campanella, five stops................
TREBLE CELESTE.
3. Five octaves, four stops, viz, flute, celeste, viola, diapa-
EP eee LEE ME ee Pee PT ee Pet pee Perey
10. Same, with vox humana, five stops..... bkvesw ee bans
12. Same as 10, with Packard’s coupling-arrangement, seven
ne Oe SPV EE LEER EE ee ee eee ee ee re ee er ee
16. Five octaves, five stops, viz, flute, celeste, viola, sub-
WO OS sas ok ee a ie ads aes
19. Five octaves, five stops, viz, flute, celeste, viola, sub-
PRON, DERINONNG 60 5 oo. hak cees 65 055 is Lee ees
18. Same as 19, with vox humana, six stops ...............
20. Same as 18, with Packard’s coupling-arrangement, eight
on: qu PEREELEEEEE ORE EE eee ee
21. Same as 18, with Packard’s coupling-arrangement, ten
cin: ‘ite EE EEE ee ere ee
22. Same combination and stops as in 21, in elegant new design
Pre eee rE. ee Pere ee hee L
12. Same as 22, with campanella, eleven stops..............
COMBINATION ORGANS.
30. Five octaves on lower manual, three octaves on upper
manual, one and three-fifth banks of keys, one octave pedal
Price.
$140 00
165 00
170 00
195 00
240 00
225 20
250 00
200 00
225 00
250 00
275 00
200 00
225 00
235 00
290 00
250 00
275 00
285 00
300 00
325 00
375 00
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 45
bass, eight stops, viz, violoncello, cremorne, celeste, vox
humana, sub-bass, harmonic, la perfection, flute........-. 425 00
31. Same as 30, with campanella, eight stops, viz, la per-
fection, violoncello, vox humana, celeste, cremorne, flute,
sub- bass, campanella...........-.---- See re Cee eer 475 00
GRAND COMBINATION ORGAN.
32. Two full banks keys, five octaves, F to F, or C to C, at op-
tion of purchaser, hand and foot blowers, twenty-seven notes
pedal bass, twelve stops, viz, la perfection, violoncello,
bourdon, cremorne, coupler, principal bass, flute, celeste,
harmonic, sub-bass, pedal check, vox humana....-.-....-.-- 650 00
With addition of pipe-organ top..............---. $700 and 750 00
This instrument is very powerful, and will fill a church seating fif-
teen hundred people. We are prepared to place it in competition with
any $1,000 pipe-organ.
Weclaim more power and a greater variety. of combination.
Six-octave organs, also rosewood cases made to order.
NATIONAL ORGANS.
A. Five octaves, one set of reeds, with vox humana......... 120 00
B. Five octaves, two sets of reeds, five stops, viz: vox hu-
mana, melodia, viola, flute, diapason ................ ~a- 386-60
| Pe ere ore ee 200 00
101 Introduction.
Our principal aim in submiting this catalogue to the public, aside from
its value as an advertisement, is to give such an idea of the character,
capacity, and style of our instruments as may be learned without a
personal inspection, and thus enable persons at a distance to order the
style they would in all probability have chosen were they present at our
warerooms. Persons so ordering may rest assured that they will receive
as perfect an instrument in every respect as if personally selected from
our stock.
The constantly increasing popularity of these instruments, and our
inability to supply the demand, has induced the company to extend
their manufacturing facilities, by building a large addition to their
factory. This being completed, we are happy to announce that we shall
in future be able to fill orders with promptness. The Burdett organs
have achieved a substantial reputation by their merits alone, upon
which we are willing they should stand or fall. We claim for them
superiority on the following points, viz:
First. Volume, purity, and roundness of tone, power and variety of
expression, approaching nearer the pipe-organ than any other reed-in-
strument in existence.
Second. Delicacy, elasticity,and promptness of action, rendering them
superior to any other reed instrument for the execution of rapid passages.
Third. Their perfection of construction and elegance of case.
Fourth. The orchestral effects which can be given at the will of the
performer, and the ease with which they are produced.
_ Many years of study and experiment of the ablest inventors have
102 been combined in what is now offered to the public as the Burdett
organ, which has ever been in advance of all others in the requi-
46 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
sites to make a perfect reed-organ; so much so, in fact, is this the case,
that most of the mechanical and musical attributes of reed-organs have
originated with the producers of the Burdett organ; and their previous
inventions and improvements have been so copied by other makers, as
to cause the very names of their improvements, such as **manual sub-
bass,” “harmonic attachment,” etc., to become everywhere familiar.
The Burdett organs now manufactured contain not only those old
and well-known so-called improvements, for which they are so worthily
noted, but entirely new oues, especially the “ vox humana” of R. W
Carpenter, which should not be confounded with his old invention of the
same name. The improved “ vox humana” used in the Burdett organ
requires no extra foot-pedal, has no clock-work attachments, is something
entirely novel, and the only practical apparatus of the kind at present
used that produces a real imitation of the human voice. These many
improvements and mechanical combinations are so compacted and made
use of as to cause no increase in the size of the instrument. The present
Burdett organ has received the most cordial and highest encomiums
from those ranking among the first of musicians and organists.
103 General remarks.
As early as the year 1845, Riley Burdett conceived the idea that the
common seraphine, or melodeon then in use, could be greatly improved,
its value as an instrument of music enhanced, and its usefulness ex-
tended ; and, working upon the principle of progression, added improve-
ment after improvement, until the Burdett organ has reached its present
colossal proportions. We use the word colossal, from the fact that when
melodeons first came into use they were of no practical service, but mere
curiosities—not so good a toy as the common accordeon. Riley Burdett
is the undisputed father of the reed-organ in the Western Contineut,
and his constant aim has been, and still is, to arrive at the utmost degree
of simplicity in its construction, combined with the greatest possible
amount of power, and the most perfect variety of combinations, com-
patible with an extreme delicacy of touch. All these have been made
a study, and we can now truly say, that in them the Burdett organ ex-
cels all others in the world.
To Mr. Burdett, and to him alone, belongs the credit of first intro-
ducing in a reed-instrument more than one set of reeds, and attaching
them together in octaves, thereby producing what is called the “ har-
monic attachment,” thus doubling the power, and we shall yet see the time
when the Burdett organ will become a family necessity. Its very emo-
tive and sympathetic consciousness with human passion will make it so.
It will be found in the cot and at the palace. The hardy yeoman will
listen to catch its “sounds from home,” as he hies him to his humble
roof, and the halls of the rich will resound with its melody. It shall re-
spond when the minister of God calls the worshippers to praise,
104 and its sweet notes shall sooth the sick at heart. Its plaintive
tones will bring a joy to the weary and distressed, and its very
name becomes a “household word.”
We will now describe, more particularly the before-mentioned improve-
ments, all of which are the inventions of Mr. Burdett.
IMPROVED HARMONIC ATTACHMENT
Doubles the power of the instrument, without increasing its size
or the number of its reeds, aud when brought into action, simultaneously
A IMR 8.4)
ta cane Fe
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 47
with the sub-bass, its effect resembles the sound of a full ochestra sud-
denly bursting upon the ear.
TRI-REED
Is unlike any other now used—three sets of reeds being used with
the common manual, and so arranged that they occupy no more space
than two sets of ordinary reeds, thus possessing more power, being more
compact, less complicated, and much cheaper than those on any except
the Burdett organ.
IMPROVED MANUAL SUB-BASS
Brings into use an independent set of large and powerful reeds, ope-
rated upon the common key-board, and is controlled by a stop. It re-
quires no extra space, is a perfect substitute for a pedal-bass, and in-
creases the power of the bass-notes more than two-fold.
This is a very recent invention, an improvement upon a previous
patent, and is unlike that of any other manufacture.
THE HARMONIC CELESTE
Is a new and most valuable improvement, which brings into use an
extra set of reeds, which, by their peculiar arrangement and method of
tuning, produce a peculiarly beautiful, string quality of tone, with a
most astonishing power, surpassing all the previous efforts of the inven-
tor. This most admirable and surprisingly pleasing improvement, is
now for the first time introduced in the Burdett or gan, and cannot be
used by any other manufacturer.
105 IMPROVED VOX HUMANA.
This most important of all improvements is the result of years of study
and experiment by R. W. Carpenter, who is admitted to be one of our
greatest musical inventors, and his vox humana, now used on the Bur-
dett organ, is the perfection of genius. In solo passages its effects are
entrancing; its pure, melodious, and sympathetic notes produce upon
the listener a saddened pathos, which to all lovers of the beautiful in
musie is the perfection of intense passion, and when used with the
‘¢harmonie celeste,” is, without exception, the most perfect combination
in a reed-instrament that a musical ear ever listened to. It is the human
voice mechanically personified.
THE CAMPANELLA.
This stop, the campanella, is the most beautiful and delicate of all
Mr. Carpenter’s many and valuable musical inventions, and, when used
with taste, never fails to fascinate and entrance the hearer.
It should be used sparingly, and never introduced with a loud stop.
- The softer and more subdued the accompanying stop, the finer the effect
produced. Occasionally using it without any wind or reed stop, like a
chime of bells heard in the distance, and then bringing the whole power
of the organ on in some old choral harmony, gives a fine effect. Quick
music, waltzes, etc., can be played on this stop the same as on a piano,
and with the same touch, thus adding great variety to the music usually
preduced ou reed-organs.
48 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
LA PERFEOTIONE.
Long experiment in the art of voicing reeds to produce an imitation
of the dulciana stop in a pipe-organ has at last been successful, and Mr.
Burdett, in the stop above captioned, has arrived at the tone so long
sought but never found.
This stop is on the upper bank of the Burdett combination organ,
and is one of the finest stops ever introduced in reed-organs. The
106 ~=sreed is peculiar, both in its shape and in the voicing, and being
covered or encased by a tight-fitting swell-box, which is subject
to the most complete control of the player without drawing a stop, is
capable of producing softer, sweeter, and finer effects than even the far-
famed dulciana. When used in combination with the vox humana the
effect is entrancing. The ear revels in sweet sounds as they “ fade and
die” in the distance.
THE VIOLONCELLO.
This stop ison the upper bank of the Burdett combination organ,
and is intended more particularly for a solo stop, being peculiarly adap-
ted to carry a melody or air, the accompaniment being played on any
suitable stop on the lower bank, at the caprice or taste of the player.
It adds great power to the full organ; should seldom or never be
played with a full or four-fold chord, and never used alone for full har-
monies below middle C; a duo or trio may be played, but as a solo it is
most effective. In combination with the vox humana, using the celeste
as an accompaniment, a true, soulful musician can produce most beau-
tiful effects by a judicious use and timely introduction of this combi-
nation.
The la perfection stop, coupled with the violoncello, produce a perfect
clarionet.
HALF-STOPS.
In the various styles of the Burdett organs, no half-stops or “ cut-
ups,” as they are called, are allowed wherever it is possible to make a
whole stop. This is exemplified in our style 7, which,in the Burdett
organ, has only one stop, the “ vox humana.” Other manufacturers, in
corresponding style, make a grand parade of five and sometimes even
more draw-stups, cutting up each set of reeds into two or more stops,
and giving them some high-sounding name, thus leading an unwary
buyer to suppose that an instrument contains a great deal more than it
really does.
107 THE COMBINATION-ORGAN,
As its name indicates, is an ingenious union of all our standard im-
provements, combined with many new features never before introduced
or attempted in reed-organs, together making this organ the ne plus
ultra of instruments, and one that has already created a revolution
in the public mind in the decided favor of the general adoption of ree «'-
organs, both for secular and sacred music, where an instrument is re-
quired either to accompany the voice, or to produce orchestral effects.
This instrument has six or more draw-stops, fancy solo-stops, and
combinations being added at the desire of the purchaser, two banks of
keys, pedal-bass which can be coupled to the manuals, two blow-pedais,
so ea “*
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 49
and contains all our patented improvements, including the “ improved
vox-humana,” and “ campanella.”
This instrument is no more liable to get out of order than any of the
other styles. ,
With the multitudinous and surprising combinations that are con-
tained in this instrument, the most intricate music of the “ great mas-
ters” can be rendered as on a grand organ; or the most simple music
for the melodeon can be played by a child.
STOPS IN THE BURDETT ORGAN.
Styles 1 to 8 inclusive—one stop: vox humana.
9—two stops: Vox humana, sub-bass.
10—two stops: Vox humana, sub-bass.
11—three stops: Vox humana, sub-bass, harmonic.
12—three stops: Vox human’, sub-bass, harmonic.
13—one stop: Vox humana.
14—one stop: Vox humana.
15—three stops: Vox humana, sub-bass, harmonic.
16—three steps: Vox humana, celeste, sub-bass.
i7—three stops: Vox humana, celeste, sub-bass.
18—four stops: Vox humana, celeste.
Harmonic sub-bass.
19—eight stops: Bourdon bass, bourdon treble.
Diapason, vox humana.
Sub-bass, harmonic.
Flute, principal bass.
108 20—eight stops: Bourdon bass, bourdon treble,
Diapason, vox humana.
Pedal-check, harmonjec.
Flute, principal bass.
21—-twelve stops: Bourdon bass, bourdon treble.
Diapason, dulciana.
Flute, celeste.
Hautboy treble, hautboy bass.
Principal bass, vox humana..
Sub-bass, coupler.
22—twelve stops: Diapason, dulciana.
Bourdon bass, bourdon treble.
Flute, celeste.
Principal bass, hautboy bass.
Hautboy treble, coupler.
Vox humana, pedal-check.
N. B.—Other draw-stops and varieties of tone added at the option of
the purchaser.
COMBINATIGN ORGANS.—These instruments are furnished with any
required number of combination-steps at the fancy of the purchaser ;
-but the standard styles are of three varieties, viz:
Style 29—six stops; Celeste, harmonic, man. sub-bass.
Vox humana, violoncello, cremorne-coupler.
(= The diapason and cremorne stops being always open, no draw-
stops for them being used, and the flute stop being drawn by the knee-
swell. 4}
| Recs. 398—399—4
50 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
Style 30—eight stops; celeste, harmonic, sub-bass.
Vox humana, la perfectione, violoncello.
Flute, cremorne coupler.
(> The diapason and cremorne stops being always open, no draw-
stop for them being used, the flute stop and viononcello can be drawn
by the knee-swell when desired._4}
Style 31—eight stops; Celeste, harmonic, violoncello.
Vox humana, la perfectione.
Man. sub-bass, campaunella.
Cremorne coupler, pedal bass.
(= The “ diapason” being always open, and the “ flute” being drawn
by the knee-swell. 4-4
109 N. B.—The flute and violoncello stops in the two preceding
varieties are coupled to the knee-swell, so that they can be
brought on without removing the hand from the key-board to draw the
stop, when so desired by the performer. This gives grand orchestral
effects, explosives, diminuendoes, etc.
All the various improvements on the Burdett organ are protected by
patent, belong exclusively to the company, and can be used on no other
organ without an infringement of the rights of the several patentees.
Do not be deceived by “ make-believe ” and subterfuge in those who
represent that they have the same or similar improvements.
The several improvements hereinbefore described can be obtained
only on the Burdett organ.
Allow no meddling with any reed-instrument without an actual neces-
sity requires it. They are pieces of mechanism that, likea good watch,
are best let alone. Many curious people, who know but little of mechan-
ics, and less of a reed-organ, are but too anxious “just to take them
apart,” or ‘“‘ to see how they are made.” ‘ Hands off,” except to play, is
the best rule; and were if adopted by those owning a reed-instrument,
there could be but little cause of complaint ; and none that any careful
and intelligent person could not remedy.
Do not have anything to do with traveling repairers, unless they come
duly authenticated and recommended by some of the well-known manu-
facturers, or their ageuts.
No manufacturer or dealer can be expected to be held accountable for
carelessness in the use of any instrument.
Should any fault be found, or any trouble not described herein; write
at once to us, describing, as nearly as possible, what and where the same
is, and we shall give prompt attention and a ready reply.
110 THE KNEE-SWELL.
In most of the Burdett organ the office of this appliance is two-fold.
Ist. As a general swell. 2d. To bring into use a second set of reeds.
When the knee-swell is moved gradually, it produces a crescendo till it
finally brings into use the second or principal set of reeds. When moved
suddenly, it produces an explosive orchestral effect, that no other swell
is capable of doing. This improved knee-swell is found on none but the
Burdett organ.
BLOWING.
In those of the Burdett organ, having two foot blow-pedals, each foot
should be placed fully and squarely on the pedal. The feet should be made
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 51
to move up and down alternately—one pedal being made to descend, the
other to ascend—allowing each ankle-joint to move freely, and making
use of the ball of the heel of the foot as a fulcrum, and raising or de-
pressing the toe as the action of the pedal may make it necessary The
motion of the feet should beregular and uniform, and not with a short,
quick, or jerky motion, and each pedal be made to move up or down to
its tull extent at each movement.
In no other way can the bellows be made to perform its legitimate
duty, which is to cause a steady, constant, and regular supply of wind
to pass through the reeds when required.
Many of the best players totally spoil the effect, and make nonsense of .
good music, when playing upon a reed-organ, simply from the want,
either of a proper appreciation of the functions of an organ-bellows, or
from a want of attention. Both of each wants—or failings—are equally
culpable. The act of blowing isof the utmost importance in the mechani-
cal operations of all reed-organs, and too much care and attention can-
not be given to the proper use of the feet and the blow-pedals.
CONCLUSION.
We are prepared to exhibit numerous testimonials, fully endorsing Il
we have said in regard to these truly wonderful instruments.
111 The Tremaine piano-fortes are acknowledged by all who haveé
them in use, and by the first musical talent, to be equal, and in
many respects, superior to any manufactured. They combine immense
power, equality, sweetness, and brilliancy of tone, elasticity of touch,
and great durability.
Dealers, teachers, and others desiring to purchase a first-class instru-
ment, are invited to examine these pianos before making their selections
elsewhere. All our instruments are manufactured with the patent ag-
raffe treble, together with all modern improvements. The most thor-
oughly seasoned timber the market affords is selected, regardless of cost,
as we feel assured it will be the cheapest in the end.
(=F Parties ordering by mail may rely on the best selections.
New and second-hand piano-fortes of various makers, at low prices
for cash, or sold on instalments. Give us a call before purchasing.
ie Every instrument of our own manufacture is fully warranted for
Six years. :
Descriptive circulars sent to all parts of the country upon application.
C. M. TREMAINE & BRO.,
435 Broome Street, New York.
112 |CUT.]
Burdett combination organ, (with Carpenter & Burdett’s new im-
provements.) The greatest success of the age. The reed-instrument
perfected. We challenge the world to equal it, and cordially invite
the profession, dealers, and the musical public generally to call and ex-
amine this truly wonderful instrument.
C. M. TREMAINE & BRO.,
435 Broome St., near Broadway, New York, General Agents.
Barnes & Martin, steam-printers, 18 Courtlandt st., N. Y.
C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
113 Price-list of the Burdett organs.
ONE SET OF REEDS,
2 A. Five octaves, in paneled black-walnut case, oil and shellac finish, double
blow-pedals, orchestral swell, carved trusses.........--..---+------+--
2 B. Same as 3 A, with R. W. Carpenter’s vox humana........-.
NotTe.—The improved vox humana and campanella, invented by Dr. R. W.
Carpenter, can be obtained only on the Burdett organs.
TWO SETS OF REEDS,
7 A. Five octaves, in paneled black-walnut case, oil and shellac finish, carved
trusses, two blow-pedals, orchestral swell, three stops, viz, principal
ie: TI SRUOD : sc ais cecvun sevens cc dsuwaes boc un wees beens ceednk
7 B. Same as 7 A, with R. W. Carpenter’s vox humana, four stops, viz, principal
aed, Babe: Farha. Week WOM. «oc nd vc dacs buceus tables KGbn sed shee mawe
7 C. Same as 7 A, with vox humana and campanella, five stops, viz, principal
bass, flute, forte, vox humana, campanella...-... 2.222. 22-2 ee eee eee eee
9 A. Five octaves, in paneled black-walnut case, oil and shellac finish, carved
trusses, two blow-pedals, orchestralswell, four stops, viz, flute, principal
RGD, CURE DUE. os 0 cac'shan ovnddcbucene sung cabbie obnd cebenes bes
25 A. Five octaves, in paneled walnut case, oil and shellac finish, carved
trusses, two ‘blow-pedals, orchestral swell, &c.,one stop, viz, celeste..
25 B. Same as 25 A, with R. W. Carpenter’s vox humana, two stops, viz, vox hu-
SRR. CERNE occ tei ctwis 60sedduss da bns can OeNea hebben eebentonhaes
25 C. Same as 25 A, with vox humana and campanella, three stops, viz, celeste,
CRN, VOR PRU occ cs cts nnekne 60 s4RRS a CSRS MER TOEs «0
26 A. Five octaves, paneled walnut case, oil and shellac finish, carved trusses,
two blow-pedals, orchestral swell, &c., three stops, viz, celeste, flute,
SNE nae skis Bai en ks os Stes Sicnes idddv obese ete abe eb aba on
26 B. Sameas 26 A, with R. W. Carpenter’s vox humana, four stops, viz, celeste,
be. SNS VOR OUI so ccc scnoks écotee uceees bheekesed ckenkes
26 C. Same as 26 A, with vox humana and campaneila, five stops, viz, celeste,
flute, sub-bass, vox humana, campanella ......- 2... 222. 2250 cece cece ee
TREBLE CELESTE ORGANS.
16 A. Five octaves, paneled walnut case, oil and shellac finish, two blow-pedals,
carved trusses, orchestral swell, &c., four stops, viz, flute, celeste,
PEMCIPGl DANS, GEDDOGD. 6 .c.s<ccnccwse cena. Konges degnessdoceves wees
16 B. Same as 16 A, with R. W. Carpenter’s vox humana, five stops, viz, flute,
celeste, principal bass, sub-bass, vox humana..-...........-..--.-----
18 A. Five octaves, paneled walnut case, oil and shellac finish, two blow-ped-
als, carved trusses, orchestral swell, &c., five stops, viz, flute, celeste,
SUMRCIREL DANG, SROUNE, DOTRNIUNE on ok v0 ht enced o6o. 060d Hone 904s Ocen
18 B. Same as 18 A, with R. W. Carpenter’s vox humana, six stops, viz, flute,
celeste, principal bass, sub-bass, harmonic, and vox humana.........-
18 C. Sameas 18 A, with vox humana and campanella, seven stops, viz, flute,
celeste, principal bass, sub-bass, harmonic, campanella, and vox
AND ssn suikneh bad eke hd dink hottie Clad dae kh Rekds eendenes
te The several improvements hereinbefore described can be obtained only. on
the Burdett organ, manufactured at Chicago.
BURDETT PATENT COMBINATION-ORGAN,
29 A. One and a half banks of keys, six stops, violoncello, cremorne, harmonic,
PUSRNG, VEE: SUG, BE DIO. bw ninco boc conewn ocd debisnxcudens
29 B. Same as 29 A, seven stops, with R. W. Carpenter’s patent campanella...
30 A. One and a half banks of keys, eight stops,la perfectione, harmonic, ce-
leste, vox humana, sub-bass, cremorne, flute, violoncello, and diapa-
DOUR Li pane k4css 06h nub kken $6 debe Roadie he wbes buds k bin eden bed ames
GRAND COMBINATION-ORGAN,
32. Two full banks keys, five octaves, F to F,or C to C,at option of purchaser,
hand and foot blowers, twenty-seven notes pedal bass, paueled walnut
$140 00
165 00
170 00
195 00
235 00
200 00
175 00
200 00
240 00
200 00
225 00
265 06
225 00
250 00
250 00
275 00
315 00
Cc. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL.
case, combination swell, carved trusses, oil and shellac finish, twelve stops,
viz, la perfection, violoncello, bourdon, cremorne, coupler, principal
‘bass, flute, celeste, harmonic, sub-bass, pedal-check, vox humana-.--. -...-. 650 00
This instrument is very powerful, and will filla church seating fifteen hundred people.
We are prepared to place it in competition with any $1,000 pipe-organ. We claim more
power and a greater variety of combination.
Six-octave organs, also rosewood cases, made to order.
114 Portable melodeons, combining all the best improvements.
No. 2—5 octave, walnut case........- (aden + hades Ranken $100 00
Fras 3-8 CUtRVG, WETMEE GHBD... «on 5 ow cccdcccetvccccevvasenas 115 00
No. 4—6 octave, TOSEWOOd CAREC. . 2.22.00 cine ce ccc ce ce ccaces 125 00
No. 7—6 octave, rosewood, tremolo... .........- 2... se cece nee 135 00
NO, 5—}5.OCtSVO, TOSGWOOE GREG s onic ic onc cin ces sve cscs ciccnzons 110 00
No. 6—5 octave, rosewood, tremolo. ...............--.00---- 120 00
Piano-case melodeons.—Octagon legs, elegant rosewood cases, three mould-
ings.
i Die OOS) on ko veda Fini gs cwirececiees: ‘saiigssekuewanes $150 00
No. 9—5 octave, tremolo. ..........-..-...-2-- Giss See bias gs 160 00
eG Bi CORIO G, CIC, oon wo oe a 5. eae eed eewsd ces kee ds 190 00
a, Be I en is bS ei ho bE wae is eS aT 180 00
Piano-case melodeons.—In splendid rosewood, round corners, three mould-
ings, carved legs, expressly adapted to the drawing-room.
Fr 2a CONT ias 5 Cvdkdiidacs h« hedktviees Fehetomadse when ule $165 00
Ie. TBS COUNIG, TOES 6 6656.6 cd baedvace s ened ctesenecuin 175 00
Be, Bee Cis oi Oka 4 hen ck Sen ne teeny Behe a b Sat 200 00
No. 18—6 octave, tremolo.............. Shecshne woven’ mecean 210 00
Double-reed, four stop, prano-style melodeons, highly fixished.
No. 10—5 octave, octagon legs........ Re ey ee re re $200 00
No. 15-5 OCtAVG, GATVEG 16GS8.. 2. ci ccc ccc ccc ccccssessccsss ZI OH
No. 16—6 octave, octagon legs.... .....-.......-: Patiin divans 240 00
INQ. BGG GOCRID, SOUVON BOOS a one oo oni vb hed bpd e detec nntee 250 00
Gem organs.—In new style rosewood, walnut, and chestnut cases, single-reed,
two blow-pedals and knee-swells, tremolo, sub-bass,
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