# 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 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1874_118%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1874 ## Text TRANSCRIPT OF RECORD. 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. ee — . — ey FILED JANUARY 14, 1873. eet WR te “& $ § : 4 t ; j ig % * 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 - 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 Grand combination organ with pipe-top, pedal-brass, etc., $600 and upwards. * Styles 1 to 15, inclusive, are furnished, if required, without the improved vox humana, at $25 less than the printed prices. 118 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. ' Tremaine. \ To the honorable justices of the circuit court of the United States for the southern district of New York: In pursuance of a decretal order made and entered in this cause, and bearing date the 23rd day of May, 1871, at a stated term of this court, by which it was referred to me, Joseph Gutnian, jr., one of the masters of this court, to take and state the account of profits derived by the de- fendants from the infringement of the letters-patent issued on the 5th day of October, 1869, to the complainants, for a “ tremolo-attachment” to musical instruments, [, Joseph Gutman, jr., the master so appointed, do respectfully report as follows: I have been attended by the counsel for the respective parties and have heard the proofs and allegations adduced in either behalf, 119 and Ido find and report that said defendants have been engaged in the purchase and sale, among other organs, of organs from the firm of Lyon & Healy, of Chicago, styled the Burdett organs, of vari- ous styles, numbered for distinction from No. 1 to 31, both inclusive, some of said organs being provided with the tremolo-attachment de- creed to infringe said letters-patent, and others not. That said defendants have purchased of said Lyon & Healy two hundred and seventeen (217) instruments, having therein and combined therewith said tremolo-attachments, as appears by the statement of said defendants hereto annexed, marked Exhibit No. 2. | That the retail price of said tremolo-attachments was in general twenty-five dollars, in addition to the price of the organ, and that the defendants purchased said organs and tremolo-attachments at a dis- count of fifty per cent. from the retail price, except in the case of styles 30 and 31; and that, according to said Exhibit 2, they derived as protits from the sale of said tremolo-attachments, over and above the profits arising from the sale of the organs containing said attachments, the sum of one thousand and fifty-six dollars and thirty-one cents. That eighty of said two hundred and seventeen organs were of 120 =the styles denominated styles 30 and 31 above-mentioned, which, with the tremolo-attachment, the defendants purchased at a dis- count of fifty per cent. on the retail price, less a deduction of fifty dol- lars first made on each instrument of such styles, making an average of one dollar and thirty-two cents on each of such eighty tremolo-attach- ments, less than the price stated for them in said Exhibit 2, and giving an amount of profits thus not accounted for in said Exhibit 2, of one hundred and five dollars and sixty cents. That, in said Exhibit 2, the prices received for a number of organs with tremolo-attachments are erroneously stdted, by reason of deduct- 58 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. ing the expenses of concerts from the profits of said particular organs, instead of charging them to the general expenses of the business, which expenses are not shown to have been greater by reason of the sale of the organ with the tremolo than without, while the profits of the de- fendants in each case of such sales were increased by the difference be- tween the cost of the tremolo and the price for which sold. Such protits, thus unaccounted for in said Exhibit 2, amount to the sum of twenty-three dollars and sixty-two cents; that the defendants also purchased organs or melodeons from the B. Shoninger Mel- 121 odeon Co. or B. Shoninger & Co., some having the tremolo-attach- ments decreed to infringe the said letters-patent, and others not. That said defendants purchased of the said Shoninger Company twenty- two organs or melodeons, having therein and combined therewith said tremolo-attachment, as appears by the statement of said defendants hereto annexed, marked Exhibit 1, the retail prices of said attachments being ten dollars, in addition to the price of the instrument, and being purchased by the said defendants at a discount of from fifty to fifty-five per cent. from the retail price. That, according to said statement, the said defendants derived as protits from the sale of said infringing tremolo-attachments, over and above the profits derived by them from the sale of the instruments con- taining said attachments, the sum of forty-seven dollars and ninety-five cents, RECAPITULATION. Amount of profits on Burdett organs, as per Exhibit 2..... $1,056 31 ee FS 2 ae rr er re en Ce re 105 60 Amount of error in Exhibit 2, as per books ............... 23 62 Profits on Shoninger organs, as per Exhibit 1 ............. 47 95 1,233 48 122 I do, therefore, respectfully report that the amount of profits derived by the defendants from the infringement of the said let- ters-patent is the sum of one thousand two hundred and thirty-three dollars and forty-eight cents. I respectfully refer to Exhibits 1 and 2 hereto annexed as making a part of this, my report. All which is respectfully submitted. Dated N. Y., July 6, 1871. JOSEPH GUTMAN, JR., Master. The defendants’ counsel offered in various forms to prove the amount of expenses incurred by them in the purchase and sale of organs, for the purpose of charging a proportional part thereof upon the tremolo- attachment. This offer as made was overruled, the defendant’ being allowed the right to prove and deduct, from the profits received by the sale of the tremolo, all expenses, if any, incurred by them in the pur- chase and sale of said tremolo-attachments over and above what would have been incurred by them in case they had purchased and sold the organs without the tremolos. The defendants did not offer any proof on this point. The defendants’ counsel also offers to prove that the tremolo-attachments sold by the defendants contained three ele- 123 ments, with the Wew of proportioning the profits among these three elements. This offer was ruled out as going behind the decree. 59 HITCHCOCK ET AL. 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RSVR ESE STEP SS SSSR SORT TT. Ee C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 64 “MOs1aig R01 oUIBMOL], 69, ‘9 ‘99q ‘TjoyseTy "HORI “HOG OULBUIELy, 0} plog a ‘O[OUIEI} OJ ‘Oe1 ODI "UBS1O IOJ “de1 GIIG tte eewesecay atte: tet eweenrny tt eeeseeeery et ae te eetereeg reeseeeeneg tees eeeeeey eee tate eeees on tinea; oa a givers: Vaan Rphbeagcs? we eeeseenene ttetereenens tae teeeeee yr Gerdes | ei eS SITE 8 Woawyy | ctr eeeeeen yn feeble; reer eweene yy ren ae guise. ee ee Ss sheteas: Gherscias tee teweenrg tteeeseeng "Fee eae een ey 6 re ee ee ee Poe a oe ne Cee ” | “P[OS Wey AA eee Ee Ot eR EY Esse: "3809 [BI07, "O[OUIGI} JO 4809 te ee “AON “""""" TL. 63 Wore es ae eS ae Iudy "00d “"""""TL, ‘BT qorey totter eee eg eee ce # te eeeeeeeey oer etc ueee (es ae Sane tne an teteeese egy eenerres ae "eerste 2a ities Te reeneetree toteeeeeepy ae eeeeennge eneeese stam kes oF seeeeeeseegy iba htee: ° | ae 3 "rosso" 6% TOIB te eeeeeee or et ee Mibinzcce, ronees tea 37) ae ‘AON eunr 490 "4dagq eune TS8rl 6LI9T CLISI ce re Te ee ee CET ee eee oT ee ews tree Seeeeraeeeeeseaneenae eee SOC ese eeeseweseseereeeen,. i Desideutiensicakidticereecies sce Se ee ee one ore ee eres es eeeneeeececeeecarssesn: steele cwcees cemewaccnseccns nae settesenereeceseneeceees #2 e sgbewlaxcataceugunsc | *}UNOOSIpP CFE TT atte teeeeeneewwer ee nnn NMS NRE rie AE stig Fac a. Wott ee eeneeeeweseneene Gy “OOUB/E IOJ WOAIZ yLVIUNOD Tot tteteeseeeseen enn n nga TREMAINE M. CL S9T 9CO9T SEAR eS re Ten G Pe Mivisagtna ats 2 nr a fase seomwins SR 3 acu PaNitMTONCRENT. . wipotiieereteegr sdeten meal ee ee ‘pO se Wee Le oer ot ee ee dethtelee: Ae te ac hala ata else Wier teats - "re eee eee eee ee enanenaaes ‘eee hte: aut Jt eeeeeweeer Oc ol enn hea a, mT @ | 6£6°C1 ene BO ee ee REC. 398-399—5 Se oe a a Coe ai, ‘teeeeeweeyy C. HITCHCOCK ET AL. A. op S io = mo f) TREMAINE M. C. 66 Jo Suarjyunodoe uo 10d 91 §,10}8R]q ‘TLEL ‘QS Ane patty ‘e}yoid ‘QUINWMIOLY, “ WI[IAA PUB OUIVUIOL], "J{ $9[1VYO 48,38 Uosj}19qoy "FY SoM pus ‘axBYg ‘4H OS1004) ‘YOON OZUOTY “AN ‘A'S 'S'1'O'D ¢ pessopuq) 8T 280 ‘Te$ re 9¢0 ‘T | 00 00L ‘S| 1€ 92 ‘eg 00 SOT 966 00G PEL GOT uf GI ue af Amir eo “Sr *-@ me et es em wet et OU et ed ee i> UD Ca —_ tia Ante: "P1083 TOT MA *OJOMI9I} AJOJ “DALI OI ‘UBS1IO IO} “091 DDL *J809 [B}OJ, | 10 OOL ‘ZH OL “ees } { | ‘cereres Te Gey Jeeeeeeresem Gog eoneesas ae pes eseconiiy A aG ? “O[OW91} JO WO "yy 9N0G WoTLAL "uBS10 JO 30D *SUBZIO JO “ON re rtee ees eeeecsaneneeeceeeeegr eet eeeeterseccnsecereseeearTg reece eeneen seen recerereensegy ere reste eerneweseweeens cog ewmpeeenereceev eee re ee eeene rt eereecewasenes cere ene cote eeeeee pewenenweenrey "aT 44g C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 67 135 Circuit court of the United States, southern district of New York. ALONZO HiItcHcock, GEORGE G. SAXE, AND }) James H. Robertson vs. >In equity. CHARLES M. TREMALNE AND WILLIAM B. TRE. | maine. Exceptions taken by Charles M. Tremaine and William B. Tremaine, the defendants in the bill of complaint named, to the report of Joseph Gutman, jr., esq., one of the masters of this court.to whom it was referred by a decretal order made and entered in this cause, bearing date the 23rd day of May, 1571, to take and state the account of profits derived by the defendants from the infringing of the letters-patent issued on the Sth day of October, 1869, to the complainants for a tremolo-attachment to musical instruments, which report is dated the 6th day of July, 1871. First EXCEPTION.—Ffor that. said master hath, in and by his said report, certified that the difference between the actual price paid by the defendants to the manufacturer for the whole tremolo-attachments and the price for which they were delivered by the defendants to their customers, or, in all, the sum of one thousand two hundred and 136s thirty-three dollars and forty-eight cents, should be charged to the defendants as the amount of profits derived by them from the sale of said tremolo-attachments, and refused toallow the defendants to prove and deduct from said gross amount a portion of the expenses of their business proportioned upon the relation which the total sales of tremolo-attachments bore to the totalsales of instruments; whereas said master ought to have allowed such proof and made said de- duction. SECOND EXCEPTION.—lor that said master hath in and by his said report certified that the whole amount of profits which the defendants have derived from the sale of the whole tremolo-attachment should be charged to the defendants as the amount of profits they have derived from the infringing of the said letters-patent of the complainants; and refused to allow the defendants to prove that each tremolo-attach- ment, upon the sales of which the master has certified the profits, con- tained two other and distinct patented devices besides the device ad- judged to infringe upon said letters-patent of the complainants; whereas said master ought to have allowed such proof to be made, and to have certified that only a portion of the profits derived from 137 ~=—s the sale of the tremolo-attachments was due to the device which was adjudged to infringe upon the complainants’ patent. B. E. VALENTINE, Defendants’ Solicitor. Dated August 4th, 1871. (Endorsed:) U. 8S. circuit court southern dist. of N. Y. Alonzo Hitcheock et al. vs. Charles M. Tremaine et al. Exception to mas- ter’s report. Filed Aug. 5th, 1871. Bb. E. Valentine, def’t’ sol’r, 26 Court st., Brooklyn. 68 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 138 Circuit court of the United States, southern district of New York. ALONZO HITCHCOCK ET AL. Us. CHARLES M. TREMAINE ET AL. \ Str: Take notice that we shall apply to his honor Judge Woodruff, at his residence, No. 10 west 29th st., in the city of New York, on Friday, February 23rd, at 9 a. m., fora settlement of the order referring this cause back to the master for further proofs in accordance with the opinion filed February Ist, 1872. Yours, &c., MATTHEWS & BETTS, Compl’ts’ Sol’r. To B. E. VALENTINE, Def’ts’ Solr. (indorsed:) U.S. circuit court 8. D. of New York. Alonzo Hitch- cock et al. vs. Charles M. Tremaine et al. Notice end. D. E. N. 139 Due service of within notice is hereby admitted. NEw York, Feb’y 21, 1872. Filed Feb’y 28, 1872. 140 At a circuit court of the United States held in and for the sec- ond circuit and southern district of New York, at the court-house, in the city of New York, on the 28th day of February, 1872. Present, Hon. Lewis B. Woodruff, court judge. ALONZO HITCHCOCK ET AL. US. CHARLES M. TREMAINE ET AL. This cause having come on to be heard on the master’s reports of the profits derived by the defendants from infringement of the complain- ants’ patent for a tremolo-attachment for musical instruments, men- tioned in the bill of complaint, and upon exceptions thereto after the hearing of counsel thereon, it is ordered that the report be sent back to the said master to take further proofs as directed herein. It is further ordered that the first exception to said report be 141 allowed so far as to permit the defendants to prove the general ex- penses of their business incurred alike to effect the sale of all goods, i. e., not specifically incurred in reference to any particular class or kind, said general expenses to be apportioned by the master, and a part of the same, bearing the same proportion to the whole that the gross sum received from sales of the infringement bears to the gross sum received by the defendants from all sales in their said business, to be added to the expense of the infringing tremolos, and allowed to the defendants. It is further ordered that said second exception be allowed so far as to permit the defendants to show, if they are able, that they received an enhanced price for their infringing attachments by reason of its con- nection with the peculiar mode adopted by them of producing or regu- lating the motion, so that the profits or difference between the cost and C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL, 69 the price of sale was enhanced thereby, unless the defendants 142 can show that the peculiar apparatus by which, in the instruments they sold, the motion of the tremolo was imparted or regulated gave them an increased price not due to the patented improvement however moved or adopted use’ then the cost of such apparatus alone is to be considered, as was done by the master in stating the accounts, and if upon the proof it be found that the price realized from the at- tachment is due to the patented device for causing the vibration of the air, as described in and claimed by the specification of the complainants’ patent, irrespective of any peculiarity in the mode of producing the motion thereof, then the profits are to be inspected to the complainants’ patented device, and to be allowed them, as was done by the master. It is further ordered that the exceptions to the said report be in all other respects overruled, and that the said master proceed to take proofs as directed, and that he report thereon, without costs to 143 —s either party, on the exceptions. (Sig’d) L. B. WOODRUFF, Circ’t Judge. (Endorsed:) Alonzo Hitchcock et al. vs. Charles M. Tremaine et al. Order of reference back to master. Filed Feb’y 28, 1872. 144 Circuit court of the United States, southern district of New York.—lIn equity. US. ALONZO HITCHCOCK ET AL. CHARLES M. TREMAINE. Further proofs taken before Joseph Gutman, jr., master on final ac- counting in the above cause, pursuant to order of February 28, 1872, sending back report, Se. N. Y., MARcH 7, 1872, 2 p. m.—Present, counsel for the respective parties. Hearing adjourned by consent to Mareh 11th, 1872. JOSEPH .GUTMAN, JR., Master. N. Y., MARcH 11, 1872. Present, counsel for respective parties. JOHN M. TREMAINE, sworn as a witness on part of respond- 145 ents, and examined by Mr. Valentine, counsel for defendants, de- poses and says: I am book-keeper for the defendants in this action; have been such during the whole term of their business up to within the last month or so, and during the whole period embraced in the statement of account now produced by me. (Statement offered in evidence, objected to by complainants’ counsel, and marked Exhibit A.) From-Oct. 6, 1869, to June 1, 1871, the whole amount of receipts from sales of organs and pianos, and all goods in the business of the defend- ants, was how muca? (Objected to unless witness has personal knowledge outside of the books, or unless the books are here present. If his knowledge is de- rived solely from his knowledge of the contents of the books, counsel ee rape * 70 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. objected to his testifying as to his knowledge without the production of i the books.) it 146 (Question ruled out unless books are produced so that com- | plainants’ counsel may inspect the same.) (Excepted to by def’ts.) (). Are you able to state, of your own knowledge and by refreshing your memory from this paper, A, what the gross receipts from all sales in the business of the defendants was from Oct. 6, 1869, to June 1, | 1871? | A. Iam. | (). Will you state what the gross amount of sales was during that at period ? | A. $91,165.32. 3 | (). Have you similar knowledge of the whole amount of receipts from | sales of the tremolo- attachments, of which an accounting has hereto- i fore been made, during the same ‘period 2 ? 1 | (Objected as to his own knowledge.) a A. IThave. It was $3,913.96. @. Have you a similar knowledge of the whole amount of the gen- | eral expenses of said business during the time specified ? | A. I have. 147 (). Please state it, and the general details of which it is made up. (Objected to unless witness speaks from his own knowledge.) A. I know of my own knowledge the general expenses of the busi- ness and the details. The whole amount was $24,206.88. This is made up as follows: Rent of store during that time was $3,291.67 ; sal- «: aries of clerk-hire, $2,754; freight and cartage, $2,927.81 ; ‘advertising, | $8,427.68; insurance, gas, ‘and fuel, $200. The incidental expenses per- taining to general business came under head of general business. (). Please state whether or not the incidental expenses, making the last item to which you were about to testify, were confined to any par- | ticular branch of the business, or whether they pertained to the whole | general business. A. They pertained to the general business. 148 A. What was the amount of those incidental expenses? A. $6,605.72. (). Please state some of the class of expenses of which that last account was composed ? A. One of them would be printing. I cannot give the amount. We have had some considerable expense, too, in getting up wood-cuts, mostly of organs, postage, books, and stationery, travelling expenses—some ex- pense for boxes, tools—a thousand and one little items coming in that I could hardly classify. Q. Did all these incidental peers go into one general expense- account ? ok b A. They did. ° @. Was the statement Exhibit A, or the items of account which it contains, prepared by you with the assistance of the books of account of the defendants? | A. I superintended the whole. I had an assistant, but I oversaw the whole of it. (. Is that statement correct, to the best of your knowledge 149 = and belief, in all its details? A. Itisso. There may be, perhaps, a slight variation in some of a eee. C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 71 those items, but nothing essential; it is barely possible that we may have overlooked some of the entries. (Defendants’ counsel, in answer to the objection of the complainant made hereinbefore, informs the master and counsel for complainants that they are at liberty to cross-examine this witness, or either of the de- fendants, or to inspect any of the books of account of the defendants, to satisfy themselves of the correctness of the foregoing statement. ) @. Have you a personal knowledge from which, refreshed by exam- ination of the statement A, you can state that the total amount of gen- eral expenses, or expenses of the general business, is $24,206.88. A. I have. (Defendants’ counsel calls upon complainants for the produc- 150 = tion of complainants Exhibits B and C in this suit, to enable bim to offer proof under the allowance of thesecond exception) Cross-examined; direct suspended on 2d branch: X Q. Do you know anything about the gross amount of sales in the business of the defendants, except what you have seen stated in figures in the books of account ? A. I have no means of arriving at whole amount, except from books. I had charge of the books of account, and was cognizant of almostevery sale made. X @. How many sales were there made? A. IL could not give the exact number of sales, except from books. X @. How many sales were you personally cognizant of? A. 1 could not give the number of those without referring to the books. X.Q. Can you give any idea of the gross amount of sales in 151 your business except what you have derived from your remem- brance of the figures in the books of account ? A. Well, every month I always knew what amount of sales of that month was, but could not get at amount without looking at the minutes. X Q. Were you told not to produce here before the master, to-day, the books from which you derived your knowledge of the amounts and figures which you have stated in your direct examination ? A. No, sir. X Q. Why did you not produce them ? A. I was not aware that they would be needed. X @. Have you any knowledge of any of the items which you have given, except your remembrance of the figures and additions that you have made for the purposes of this examination from the books of ac- count? A. I have a knowledge at the time of the entry that they 152 ~=were all correct. I had a knowledge of the facts, but had no knowledge of the total amount. 1 know those disbursements were made, because they were made by me. X Q. Of what did the business of the defendants consist during the period of which you have spoken ? A. Dealing in organs and pianos. X @. Of whom did you rent those pianos? A. The agents were Van Renseller and Cruger. I don’t know the owner. Their office is in Grand st., not far from Elm, I think. We oc- cupied during that time only the main floor that we were on up to last May. After May we had a room up stairs connected with it. We paid $2,000 per annum up to last May; since that, $1,500. There was noth- ing but the single room on the first floor up to lst of last May under CAMA BOLL EA asia: ileal Rik neat iii tess tases. Con a abla ae Pxkey i Ss Ore ae sebadare P I Mas Lh SAR 72 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. that rent. We have the leases at the store, I believe. There was con- nected with the establishment at that time a man to repair organs 153 ~=by the name of Carl Schell. We had some three or four different boys, two young men that we got for assistant book-keepers—they stayed with us but a short time—and myself. Wehadanotherman. My impression is that he left before the 6th of October. We had one man all the time for repairing. We sometimes had a boy at the time we had the assistant book-keepers. I think at that time the repairer’s wages were $14 per week; the duties were repairing and taking care of the organs, repairing in-door and out. We frequently repaired parts of the organs con connected with the tremulo while they were out. New or- gans frequently wanted overlooking in different parts. I don’t know as 1 could specify any date when we did anything about tremulo; it was very common thing for him to do; in transferring organs, things were likely to get out of place; the tremolo was quite likely to do so. 154. They paid me up to May 1, $1,200 per annum. I think I only credited myself at $15 per week up to May 11,1871. After that, $1,200 perannum. I received $780 per annumup to May 1. The work- man had $14 per week, not less. The boys ranged from $4 to $12, in- cluding the assistant book-keepers. I could not say how long we had an assistant book-keeper; not more than one-half thetime. The rest of the time we had boys; we had boys all the time. I think it averaged about $4 for boys; one we paid $3. We had one boy only at a time at those rates. X @. Were all the expenses that you have specified here kept in detail item by item, in an account by themselves ? A. We kept a personal account with those parties. We had a gen- eral expense-account in which all these items were detailed. There was nothing in that general expense-account except what is embraced in that paper. Thereis nothing in that paper which is not found in our 154 general expense-account. (). X. During the period from Oct. 6, 1869, to June 1, 1871, did the defendants incur any expenses at all in their business, except for the stock, which is not specified under one head or another in this state- ment A? A. No; I don’t know that they had. X Q. In the general expense-account is there a full, true, and just statement of what the items of expense were for? A. Yes, sir; I don’t know that there is an article on there but what you can tell what it was. Items were all entered. X @. Then, in this statement A there is included a statement of all expenses incurred on account of these pianos and organs without trem- olos as well as these expenses on account of organs with tremolos? 156 A. Yes, sir. Adjourned to March 18th, 1872, at 11 a. m., at 417 Broome street. JOSEPH GUTTMAN, JR., Master. N. Y., MARcH 18, 1872. Present, counsel as before, No. 417 Broome st., N. Y. Examination of witness John M. Tremaine continued by Mr. Valen- tine: Counsel for defendants puts in evidence the Burdett organ, marked complainants’ Exhibit B in this suit. Also, the Shoninge organ, marked complainants’ Exhibit C in this suit. ~~ -— C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 13 Def’ts’ Exhibit No. 4 in this suit. Also, the patent granted to Lafayette Louis, Nov. 15, 1856, and its re-issue of July, 1871, patent not presented. 157 (The last two objected to as immaterial, and because since the account was closed. Received in evidence in presenti; decision reserved as to its admission finally until master*can examine the pa- tents. ) Also, Jetters-patent granted to John RK. Loomis, Feb’y 22d, 1870, for connection between the fan and the wind motor; patent not presented. (Objected to as immaterial; same ruling.) Also, letters-patent granted to Riley W. Carpenter, dated June 4, 1867. Defendants’ Exhibit No. 6 in this case. (Same objection; same ruling.) Witness examined by Mr. Valentine: (). In the tremolo-attachments sold on the Sheninge organs, of which _ you have heretofore rendered an account, of what did the whole tremolo- attachment consist ? . 158 A. Of a wind-motor inclosed in a box; attached to that motor Was a wire, passing outside the box, bentatright angles; that wire, as the motor passed around, caught a similar arrangement attached to a tremolo, and set it in motion; it also consisted of a fan for producing a tremolo, running parallel to the reeds. (). In the Burdett organ what elements was each attachment which you have accounted for composed ? A. Of a wind-motor enclosed in a box, driven by the action of the bellows and a hollow cylinder, one directly opposite the other; this cy- linder was driven by a connecting-shaft which attached it to the motor ; that shaft consisted of a tightly-wound cord. q. Have you had experience in selling both the tremolo-fan and the tremolo-cylinder which you have described ? A. I have. 159 @. Which could be the most readily sold; that is to say, which did the public with whom you were brought into contact gene rally prefer ? A. I have always found that the cylinder was very much preferred over the fan. @. To what extent ? (Objected to; question disallowed ; exception.) (). In which of the two revolving devices is the motion imparted with most rapidity and regularity, the cylinder or the fan? A. The cylinder is driven with less resistance to the air and more re- gularly. Q. To what extent, in your opinion and experience, did that feature affect the sales of the tremolo-cylinder as compared with the sales of the tremolo-fan ? A. It affected it to that extent that we gave a great deal more 160 for that cylinder than the other; thatis, we were ready to, as we could sell it much more easily. We always got a higher price for organs containing those tremolos than for those containing the other, the organs being otherwise the same. (). Is the cylinder which you have described the same device as the device shown in the patent to R. W. Carpenter, def’ts’ Exhibit No. 6? A. It is the same as this marked out here, as far as I understand it. I don’t know anything about the patent; it is said to be patented. (4 C. M. TREMAINE ET AL. VS. .A. HITCHCOCK ET AL. Cross-examined by Mr. Betts: X Q. Have you produced here to-day the books of account of the de- fendants? . A. I have. X Q. Please turn to said books, and show the account from which you made up the items or estimates contained in Exhibit A. A. A large portion ofit is on the cash-book. It commences on pages o8 and 39, Oct. 6, of the cash-book, and goes through to the Ist 161 May, 1871, pages 118,119. There is one month still, in another set of books there; also another portion of it is taken from the day-book, commencing page 325, Oct. 6, going through to page 387. (Counsel for plaintiff’ offers these two books in eyidence; objected to aS incompetent; objection overruled; exception; they are marked Zand X.) X Q. Please turn over to the cash-book, Exhibit Z, and from pages 38, 39, Oct. 6, to May 1, 1871, pp. 116,117, and mark with a’ x in lead- pencil on the margin, opposite the items, each and every item which you have included in your statement of expense in Exhibit A. A. Every item commencing with the words *“‘ to expense,” is included in that statement of expense, Exhibit A, and no other. X Q. Please look at the day-book, Exhibit X, and designate 162 each and every item included in the account Exhibit A. A. Allitems that are charged “to expense” same as in cash- book, commencing page 325, to page 387. X Q. In making up the account from which you drafted Exhibit A, did you draw off the different items which are included in the account? A. I went over the items so far as to designate the items specified in that paper. I took off the amount on a separate piece of paper. In in some of the expenses I put down the amount under different heads, such as advertising, and then posted them up. I have not that paper now. After getting at the different amounts, I deducted the whole of these separate items from the amount of expense, showing what the balance was for the various other items was that were not mentioned. X @. Did you keep copies of any of your advertisements ? A. We never, that I know of, specially kept any of them; but I know we have got plenty of them. 163 (Order made for production of any advertisements in posses- sion of defendants.) X Q. Have you any means of determining what particular organs or instruments particular charges of freight were on? A. I could not determine the precise organs. I could tell differ- ence, for instance, between Sheninga organ and Burdett organ. X Q. I notice that on Exhibit A you specify an item of freight and cartage on organs with tremolo-attachments upon them; how did you determine that? A. By taking an average of the cost of the freight upon the Burdett organ, all the organs, and giving those reputed as having the tremolo their proportion. X Q. Was the freight any larger on organs having the tremolo-at- tachment on them, or those of the same class and style without it? A. We never had any high-priced organs but what had the 164 tremolo. I don’t think there would be any difference. X Q@. Can you tell what particular items of expense in this ac- count are for, except from their description in these books ? A. Well, there may be some items, not fully described, that I would C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 75 know when I saw the entry better than any one else, such as small en tries, under sundries, We. XQ. Did you make any special examination into the particular char- acter of the items, except to see that they came under the head of * ex- pense-account,” or under one of the subdivisions which you have men- tioned in Exhibit A ? A. I did not; that is, not at the time I was called to make out this account. I have not since. X @. Are there any items which you have included in the account Exhibit A, except the items found within the pages specified in the two books X & Z? 165 A. There arethe expenses of May, 1871, not included in those books; they are in another set of books. (Order made for the production of these other books.) X @. Did you ever sell any organs except the Sheninga organ and Burdett organ ? (Objected to as immaterial ; question allowed ; exception.) A. We had some 4 or 6 organs when we first went into business, which were not Burdett or Shoninga, but I don’t know whether sold before Oct. 6 or not. My impression is that they were disposed of be- fore Oct. 6, but we may have had one or two of them. We also had a very few, probably not more than 5 or 6, of the New Haven Company organs. I think that was all the new organs we had of any other make, but we sometimes took second-hand organs in exchange for new, which came into the business. XQ. Did you ever sell any organs with tremolos upon them except the Shoninga and Burdett ? 166 (Objected to as irrelevant; q. allowed ; exception.) A. These organs I mentioned first had the ball-tremolo. The New Haven Co’s. organs had no tremolo at all that I recollect. X Q@. In your experience did you not find that the Burdett organ gave much greater satisfaction than the Sheninga ? (Obje’ct’ to as irrelevant ; q. allowed; exception.) A. That depends on the prices. There was a difference in price. I don’t know but the Shenenga at the price asked gave as_ great satisfac- tion as the other. They were different classes of instruments. X Q. The Shonenga organs were all cheap organs, were they not ? (Objected to as irrelevant; q. allowed ; exception.) A. I don’t know asthey could be considered cheaper ; they were lower- priced. We did not consider them a first-class instrument. (). (X.) In the cylinder-tremolo of the Burdett organ, owing to 167 the small resistance of the air and the flexible connection with the motor, was not the tremolo liable to run for a little time after the stop was shut off? A. Not if the machine was perfect. There was a brake-attachment for the purpose of stopping it. X Q. Did the Burdett tremolo start as readily as the Shonenga ? A. When the organs were new, it sometimes would not till it got worn a little; would be a little stiff; very little. Use, however, would overcome that usually. X Q. Did it not always require that the flexible connection between the motor and the cylinder should twist a little, so as to get some power of tension on it before the cylinder started ? (Objected to as not upon the subject introduced in the direct ; that is to say, this witness not offered as an expert, and also that 168 the machine is present before the master; q. allowed ; exception.) LPNS AGS oon oem emr cua int-tinns 76 C M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. A. I have never discovered anything of that kind in perfect in- struments. Sometimes when the instrument was new there would perhaps be something rough that would have to be smoothed to have it run perfect. X Q. In which tremolo, the Shenenga or the Burdett, is the means for imparting and regulating the motion the better, in your opinion ? (Objected to as before, that the witness’ opinion on this point is not competent; q. allowed; exception.) A. I think they are both good enough. I don’t think there is any great difference in them. We never found any particular difficulty in either one where the instruments were perfectly constructed. X @. Inwhich was the motion imparted the most regularly ? (Same objection; same ruling; exception.) A. When the motive-power was perfect, I consider the cylinder the most regular. 169 X @. Did you ever have any complaints of the want of regu- larity in the fan as arranged in the Shonenga instrument ? (Same objection; same ruling; exception.) A. We have had objections made to the fan as compared with the cylinder by our agents; I don’t know that the term regularity was used. X Q. Did you ever have any complaints as toany wantof regularity in the fan as arranged in the Shonenga organ ? 7 A. They did not like the tremolo as wellas the other. Very likely it might have been because it did not work so easily. That is all 1 know in regard to what others have said aboutit. I have my own ideas in regard to it. : X Q. In your opinion, is the means of imparting motion to the trem- olo better in the Shoninge’ instrument or in the Burdett ? 170 (Objected to as incompetent, and as on matter not subject of direct examination. Q. allowed. Exception.) A. I don’t know that my opinion would be of any great value on that point. Thedifficulty, where any has been experienced by me, has been generally in a want of power to start the tremolo, as sometimes in new instruments, where there is a little binding, or something of that kind, —the bearings not sufficiently worn and smooth—the power would not be sufficient to start them at first; but that difficulty is not often ex- perienced, seldom in either case. Where they work smoothly and easily usm not aware of there being much difference in regard to starting them. Q. (X.) The lack of power which you speak of is a lack of power in the wind-motion, is it ? (Same objection. Same ruling. Exception.) A. Yes, sir. Q.(X.) Which do you regard the better as a meansof connection 71 ~=between the fan and the motor, the bent wires in the Shoninger instrument, or the flexible cord in the Burdett ? (Objected to as ir’ellevant and incompetent. Q. allowed. Exception.) A. I have not been sufficiently experienced in the mode of connection of the fan in the Shoninger instrument to be able to give an opinion in regard to it. We have not sold but a very few of these. It was a time before I took much notice of the tremolo, since which I have not examined it to"any great extent. I would say, however, that the Sho- ninger would start a little sooner than the other, but not in my judg- ment to be particularly objectionable. X Q. Did you ever have any difficulty in selling any of the Burdett 1 j Le ene ¢ — C, M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 77 organs, or any complaints made about them, because they did not have the bent wire in the Shoninger instrument ? A. No, sir; never a word on the point. 172 Is the tremolo, in an instrument, most effective when the tremolo-attachment is running very rapidly, or at a medium speed ? (Same objection as to the last q. Allowed. Exception.) A. The tremolo ought not to go too fast or too slow. R.D. Are all the entries of expense, which you have included in the statement a, incurred during the period between Oct. 6, 1869, and June, 1871? A. They were. Some entries were made since, but the expenses were incurred at that time. 1. Q. Were the original entries in the books made by yourself? A. Almost entirely. (Def’s’ counsel offers to read in evidence the testimony taken before the present master as examiner in the suit of Hitchcock and others vs. Shoninge et al. The testimony offered being that of the three com- plainants in this action respectively. 173 Objected to, on the ground that said witnesses being within the reach of the defendants, they should be examined orally. Offer ruled out. Exception. Def ’ts’ counsel offers in evidence affidavit of Charles M. Tremaine, read upon the argument of the exceptions to prior master’s report. Objected to, for the reason that the party making said affidavit has been here present this morning, and because said affidavit was never read in any proceeding or argument in this case, but was, without ever having been shown or read to compl’ts’ counsel, unknown to him, handed in to the judge, attached to the def ’ts’ counsel’s brief. Offer of affidavit ruled out. Exception.) 174 N. Y., MARCH 22, 1872—1 p. m. Present, Mr. Betts, counsel for complainants. GEORGE G. SAXE produced asa witness on part of complainant. Iam one of the complainants; I am familiar with the market in re- gard to the Carpenter fan-tremolo, the patent to which complainants own. It is extensively in use; is manufactured by J. Estey & Co., to the extent of between 400 & 500 per month; also by Mason & Hamblin, to what extent I can’t say, but to a considerable extent. I know the tremolo used in the Burdett organ, consisting of a slotted cylinder turned by a wind-wheel; I have been familiar with it in the market, ever since its introduction, nearly three years. The Carpenter fan was originally run by means of a treadle and clock- work. [t was introduced into the market at $25 retail; it was used with that motor for about 3 years. 175 The Carpenter fan, moved by a wind-wheel, has been retailed at $10 most of the time. @. Has the combination of the Carpenter fan, with a wind-motor instead of a clock-spring and treadle-motor, ever enabled you to re- ceive a larger or enhanced price ? (Objected to. Admitted.) A. It has not. (J. Has the rotary cylinder of the Burdett organ ever been used in the — to your knowledge, with any other motor than the wind- motor SAA SR NR OA RSS OE CMR GLEE tO AL ale Raine no 78 Cc. M. TREMAINE ET AL. US. A. HITCHCOCK ET AL. (Objected so as immaterial. Objection overruled. Exception.) A. I don’t know that it has. @. What is the reputation, in the market, of the Carpenter fan- tremolo as compared with the rotary-cylinder tremolo ? (Objected to as irrelevant. Allowed. Exception.) A. So far as I am able to judge, the fan is preferred to the cyl- inder. : 176 @. What, in your opinion, is the best means of moving the fan that has been applied to it since its introduction into use ? A. The tredd’e and clock-work gives the most complete effect, as a tremolo can be produced, when the tones are so that a wind-wheel would not be moved by a current of air under similar circumstances. I am familiar with the mode of connecting the wind-wheel and fan in the Shoninge’ organ by means of bent wires. I see no advantage in that method over the one in ordinary use, namely, a wheel having a per- manent connection with the fan. There is no difficulty in starting the fan when the wind-wheel is on the same shaft. It starts practically instantaneously on drawing the stop. (). Please state, if you know, whether or not the defendants, in the sales of their organs with tremolos on them, availed themselves in any way of the previously-acquired reputation of the Carpenter fan, 177 owned and introduced by you. (Objected to as leading, incompetent, and irrelevant. Ruled out as leading.) Q. What do you know in regard to the method taken by the defend- ants to introduce into the market the tremolo sold by them ? (Objected to on the ground that it assumes a knowledge in the wit- ness of the motives of the defendants. Q. admitted. Exception.) A. The Carpenter fan-tremolo had acquired a reputation and was selling largely, and the defendants advertised the Carpenter tremolo—— (Objection.) And marked the boxes ‘* Carpenter’s improvement,” so that they be- came successful rivals of ours very soon. We have dealt in organs, melodeons, and instruments of that class, and have been familiar with them for about 10 years. I have sold instruments of nearly all the lead- ing makers, and have been pretty well acquainted with the trade gen- erally. 178 (). Is it not difficult to introduce a new organ into the market readily ? (Objected to as irrelevant. Q. Admitted. Exception.) A. It usually requires a great deal of time and expense. @. Was the Burdett organ with the Carpenter rotary tremolo intro- duced into the market readily and quickly or otherwise? A. Readily I should say. @. To what cause or causes was that due in your opinion asa member of the trade dealing in organs ? (Objected to as irrelevant and incompetent. Q. Admitted. Exce’n.) A. In my opinion it was largely owing to the fact that the Carpenter tremolo was advertised, and it was also claimed that Burdett was long connected with the Estey Organ Co., (objected to,) and was competent to make as good an organ as the Estey. I think, also, that the organ was a good one; we have been dealing in the Estey organs about 8 years. 179 (Q. To what extent did the introduction of the Carpenter fan into the Estey organ increase the sale of that organ? Objected to as irrelevant, and that the witness is incompetent to testify on that point. Objection sustained as irrelevant.) C.-M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. 79 Q. To what extent, if any, did the introduction of the rotary cylinder- tremolo in the Burdett organ contribute to the rapid sale of these organs, if at all, in your opinion as a member of the trade? (Same objection as before. Q. admitted. Exception.) A. Iean only speak comparatively. We could scarcely sell any organs without the Carpenter fan-tremolo, and I have no doubt that the intro- duction of the Carpenter cylinder-tremolo had the same effect on the trade. (Objected to as speculative.) Q. In your opinion as a dealer in organs, has the Burdett rotary 180 __— cylinder, arranged as it has been sold in connection with a wind- motor, any advantage over the Carpenter fan-tremolo actuated by clock-work and treadle, as a merchantable article ? (Objected to as speculative, and because the witness is not competent to testify on the subject. Q. Admitted. Evx’n.) A Taken as a whole, I think not, though it has the advantage of ereater simplicity. Q. Is there any defect that you know of in the method of actuating or controlling the action of the Burdett rotary tremolo? A. It is not readily started, as the wheel and fan are connected by a long flexible cord which requires to be twisted some time before the fan starts. X Q. Does your fan and wind wheel on the same shaft start simultane. ously on drawing the stop ? A. Yes, sir. 181 X Q. Does it start as quick with one note as with another? A. 1 don’t see any difference. X Q. That is to say, whenever there is wind enough so that you can play on the instrument, the wind-wheel will start instantly ? A. Yes, when you draw out the stop, and will operate so as to make a tremolo. X @. What do you mean, then, by saying the treddle and clock-work gives the most complete effect, as a tremolo can be produced when the tones as so low that a wind-wheel would not be moved by a current of air? A. The clock-work will drive it more rapidly; when the note is very low the wind-wheel turns slowly, and the tremolo is not as satisfactory. I mean a very slight sound. We make them so low that it sounds like an Atolian harp. If mean a gentle sound; a light note can also be pro- duced by only pressing down the key a little way, but not as sat- 182 _—sisfactorily as by a light pressure on the bellows. When the bel- lows is filled with wind the tone is liable to be more harsh and abrupt, except under the hands of the most skilful performers. I should say that it was not a fact that those beautiful low notes pfoduced by the best performers were due rather to a delicate pressure of the keys than to a nearly exhausted condition of the bellows. I have not seen over half a dozen attachments to the Shoninge’ organs. I have never very particularly inspected more than one. I have tried to sell Sho. ninger organs. I never sold any. X Q. Did you ever try to sell any Shoninger organ except your Exhibit C, in this case ? A. No. X Q. Is not that the only one you ever had in your possession ? A. We may have had one or two old ones taken in exchange. 183 Idon’t know positively of any but that one. I have never sold any Burdett organs. I know the men who deal in Burdett organs ee ee end 80 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. and have them for sale. I never saw them make any sales. I know they keep them, and sell them. I think I never had more than one in my possession, which is Exhibit B in this case. X Q. Did you ever see the def’ts in this case sell an organ of any kind ? A. I have seen them offering them for sale. Have seen them offering them to customers. I never saw the defendants write any advertise- ments. I have seen them often printed. I have never seen the defend- ants mark any of their boxes; have seen them standing on the side- walk with the marks on them. I have acted as agent for other organ- manufacturers besides Estey ; for Treat & Lindsay of New Haven, and have bought of the manutacturers and sold Parkhurst & Needham’s, Pelonbet & Pelton’s, Prince’s, Mason & Hamblin’s. The greater 184 portions of these are not instruments taken in exchange. Most of them were bought prior to our becoming agents of the Estey organ. X 2. Please state when the Burdett organ was first introduced into the market, 1f you know. When did you first see a Burdett organ, and where ? A. I think they were introduced in the spring and summer of 1869. The first one I saw was at Tremaine’s, (def’ts’,) in Broome street. _X Q. Where, besides, did you ever personally see any Burdett or- gans offered for sale ? A. I cannot recall any now that I have seen except at Somerville, N. J., at Renwick’s place. I forget name. I examined but one. I don’t know that they had more. X Q. Did you ever know of a Burdett organ sold without a cylinder- tremolo? A. No. : X Q. Are you a musician yourself? | 185 A. I sing. X Q. Can you play upon the organ ? A. Not well. X Q. Can you play any tune upon the organ requiring the use of both hands, and making a chord of more than two notes in the treble and bass ? A. I don’t think I can. X Q. Do the majority, or anywhere near it, of the Estey organs pass through your hands for sale ? A. No, sir. X Q. Of the Estey organs which you have sold since 1869, has the amount been materially in advance of the amount sold during the two years previous by you? A. They have increased in regular ratio since the spring 1866, as near as I can calculate. X @. In the year 1869 you dropped the use of the clock-work sub- stantially, and since that time have substituted the wind-motor, have you not? 186 We have used that mostly. The object of the change was the greater simplicity in the mechanism. That was all. X @Q. Were you not enabled to sell the attachment cheaper, for that reason ? a A. We reduced the price about that time, and I think it would cost some less to make, and much less to keepin repair. The price was re- duced from $25 to $10. X Q. Is it not a fact that a change from a wind-motor enabled you to more successfully compete with Mason & Hamblin in the sale of organs ? A. I think it did, owing to its simplicity. C. M. TREMAINE ET AL. Vs. A. HITCHCOCK ET AL. Si R. D.: What did Mason & Hamblin charge for putting on a tremolo like yours, with the wind-motor ? (Objected to as hearsay. Q. admitted. Ex’n.) A. Nothing extra. I know from their price-lists and from Henry Ma- son, one of the firm, telling meso. It was about the time that 187 weadopted the wind-motor that we reduced the price, though we sold some at the same price as the clock-work. R. D. When you sell fan with clock-work now, what do you charge for it? (Objected to as irrelevant. Q. admitted. Ex’n.) A. We sell so few of them that I think we charge more than we do for the wind-wheel. R. D. What were you accustomed to pay Estey for the tremolos when they were put on with the clock-work ? (Objected to as irrelevant. Q. admitted. Ex’n.) A. [ don’t remember now just what we did pay. R. D. What opportunities have you had for the last two years for ex- amining and testing the Burdett and Shoninger organs with their trem- olo-attachment ? 188 A. We have had one of each kind in our store most of the time. I have tried a great many experiments with them as to the mode of operating with them, &c. 1. R. X. Did you unscrew them, and take them apart soon after you bought them—the tremolo-attachments, I mean ? A. We unscrewed and removed the cylinder-tremolo at different times ; not the other. We have not rented them; have not had either of them out of the store in private houses. It has not been in the store ever since the hearing of the cause last March. We loaned it for awhile to the mission connected with the church I attend until we could supply them with a new one. They had it about 3 months. I think we sold the last tremolo, with clock-work motor, 2 months ago—a new oue or- dered from the factory. The next before that was 3 or 4 months before the last. In all cases the clock-work had to be worked by a third 189 ~=pedal. The wind-motor is worked by wind from the bellows forced by the same pedal that actuated the reeds. Rk. D. Please state, if you know, in what estimation the clock-work and tbe wind-motor are held by good musicians. (Objected to as hearsay. Q. admitted. Ex’n.) A. There are many musicians who much prefer the third treddle and clock-work, beeause it is more completely under their control. (S’d) GEO. G. SAXE. 190 N. Y., MARCH 27, 1872. Present, counsel as before. WILLIAM F.. SHERWIN called & sworn as a witness for complainant: I have been connected with the business of buying and selling organs, more or less, for 20 years. I am familiar with such instruments from their first invention. When the Burdett Organ Co. was first started in Chicago [ was familiar with the instrument, Mr. George Lyon being an old personal friend of mine. I was general manager of the music-house of Forth, in New York, at 563 Broadway, and Mr. Iorth took the agency of the Burdett organ here. I am considerably familiar with the trem- RECS. 398-399—6 82 C. M. TREMAINE ET AL. VS. A. HITCHCOCK ET AL. olo of the Burdett organ and its means of motion. I don’t knew that I know all the means that were ever used. After Forth sold out Sher- win & Herbert held the appointment as agents for the Burdett 191 Organ Co. at New York. (Objected to asirrelevant. Admitted. Exception.) At that time I investigated very thoroughly what they claimed as im- provements over the old Carpenter tremolo. (Objected to as hearsay. Obj. overruled. Except’n.) I have been perfeetly familiar with the Carpenter fan-tremolo for years. Have sold a great many organs having them in. Iam a great deal familiar with the Shoninger organ, having the Sboninge fan-trem- olo in them; we used to buy a great many organs of them with their tremolo. I have not paid recently any particular attention to the Burdett or- gan, so that I don’t know whether I could give any partieular description of the tremolo in them. Iwas shown from time to time various devices for propelling the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1874_118%3A0. Public record. Not legal advice.