Record and brief — Elijah S. Alvord, Appellant, vs. The United States

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| SUPREME COURT OF THE UNITED STATES.

No. 69.

KLIJAH S. ALVORD, APPELLANT,

Ai Vs. piste

THE: UNITED STATES.

—— With FROM THE COURT OF CLAIMS. :

FILED MAY 3, 1875.

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SUPREME COURT OF THE UNITED STATES.

No. 69.

ELIJAH S. ALVORD, APPELLANT,

VS.

THE UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

INDEX.

Original. Print,

PIMG) JUGRIOUE 606006 cscs accesses inane enpce kvehecduneer eadgadwehnewa’

Finding of facts by the court :

Requests for findings by plaintiff

Requests for findings by defendants

Opinion

Motion for new trial

Motion for appeal

Motion for new trial overruied

Allowance of appeal

Clerk’s certificate

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ALVORD VS. UNITED STATES.

1 Court of Claims.

Petition.

against

ELIJAH S. ALVORD

THE UNITED STATES.

To the honorable judges of the Court of Claims of the United States of

America:

Your petitioner, Elijah S. Alvord, states that he is a citizen of the

United States of America, and resides in the city of Indianapolis, in the

State of Indiana, and is the original owner of the claim herein set forth,

and that he has, at all times, borne true allegiance to the Government

of the United States, and that he bas not, in any way, voluntarily aided,

abetted, or given encouragement to rebellion against the said Govern-

ment.

And your petitioner respectfully represents that heretofore, to wit,

on the 26th day of July, 1858, at the city of Washington, District of

Columbia, he entered into a written contract with the United States of

America, (the said United States acting in that behalf by their Post-

master-General,) which said contract was sealed and delivered between

the said parties on the day and year aforesaid, and by which your peti-

tioner contracted to transport the mail ‘on route No. 10942, from Iowa

City, Iowa, by Capi, Oxford, Homestead, Marengo, Downard, Victor,

Bear Creek, Grinnell, North Skunk Riv er, ‘Pleasant Vi lew, Newton, Ap-

ple Grove, and East Des Moines, to Des Moines and back, six times a

week, in four-horse coaches, for and during the term commencing the

first day of July, 1858, and ending with the 30th day of June, 1862, said

mail to be carried within the times fixed in the schedule of departures

and arrivals annexed to said contract, until said schedule should bealtered

by the authority of the Postmaster-General of the United States, as in

said contract provided, and then to carry according to said altered

schedule,

And your petitioner did underti ike, covenant, and agree with the

United States to carry said mail in a safe and secure manner,

2 free from wet or other injury, in a boot under the driver’s seat,

and in preference to passengers, and to their entire exclusion if

its weight and bulk should require it; and also to take the mail and

every part of it from, and deliver it and every part of it at, each post-

office on the route, or that might thereafter be established on the route,

and inte the post-office at each end of the route, and into the post-office

at the place where the carrier stopped at night, if one was kept there;

and if no office was kept there, to lock it up in some secure place at the

risk of the contractor; and also to convey, without additional charge,

post-office blanks, mail-bags, and the special agents of the Department,

on the exhibition of their credentials.

And it was further stipulated and agreed in and by said contract that

the Postmaster-General might alter the contract, aud alter the sched-

ule, he allowing a pro rata increase of compensation, within the restric-

tions imposed by law, for the additional service required, or for the

increased speed, if the employment of additional stock or carriers should

be rendered necessary, the coutractor being at liberty, in case of in-

creased expedition, to relinquish the contract on timely notice, if he

should preter it to the change.

Rec. 69—1

RE AGRI ENSRLl eNS Ht

SAS SIRT GA shee OEP EMO RE

9 ALVORD VS8.° UNITED STATES.

And the United States covenanted and agreed with your petitioner

to pay him, in consideration of his services under said contract, the sum

of nine thousand three hundred and seventy-five dollars a year, to wit,

quarterly, in the months of May, August, November, and February,

through the postmasters on the route, or otherwise, at the option of the

Postmaster-General of the United States. ~~

And it was further stipulated and agreed that said contract should,

in all its parts, be subject to the terms and requisitions of an act of |

Congress passed on the 21st of April, 1808, entitled ‘* An act concerning

publie contracts.” :

And your petitioner further represents that on the 24th of April, 3

1858, at Washington aforesaid, he entered into another contract iD {

writing with the United States of America, (the said United States act- |

ing in that behalf by their Postmaster-General,) which said contract

was sealed and delivered between the said partieés on the day and year

last aforesaid, and by which your petitioner contracted to transport the

mail on route No. 11047, from Des Moines, Iowa, by Boone, Adeil, Wis-

cotta, Morrisburg’, Bear Grove, Hamlin’s Grove, Lura, Pyneosa, Tarkey

Grove, Lewis, and Macedonia, to Council Bluffs and back, three times

a week, in four-horse coaches, (supplying Wiscotta, Pyneosa, and Tur-

key Grove by side mail,) with certainty, celerity, and security, using

therefor such means as might be necessary to transport the whole of

said mail, whatever might be its size or weight, for and during the term

commencing the Ist day of July, 1858, and ending with the 30th day of

June, 1862; said mail to be carried within the time fixed in the

3 schedule of departure and arrivals annexed to said contract, and

so to carry until said schedule should be altered by the authority

of the Postmaster-General of the United States, as in-said contract pro-

vided, and then to carry according to said altered schedule.

And your petitioner did undertake, covenant, and agree with the

United States to carry said mail in a safe and secure manner, free from

wet or other injury, under a sufficient oil-cloth or bear-skin, if carried

on horse, or in a boot under the driver’s seat, if carried in a coach or

other vehicle, and in preference to passengers, and to their entire ex-

clusion if its weight and bulk should require it, and also to take the

mail and every part of it from,and deliver it and every part of it at,

each post-office on the route, or that might thereafter be established

on the route, and into the post-office at each end of the route, and into

the post-office at the place at which the carrier stopped at night, if one

was kept there; and if no office was kept there, to lock it up in some

secure place, at the risk of the contractor; and also to convey, without

additional charge, post-oftice blanks, mail locks and bags, and the spe-

cial agents of the Department, on the exhibition of their credeutials, if

a coach or other suitable conveyance was used.

And it was farther stipulated and agreed in and by said contract that

the Postmaster-General might alter the contract, and alter the schedule,

he allowing a pro rata increase of compensation, within the restrictions

imposed by law, for the additional service required, or for the increased

speed, if the employment of additional stock or carriers should be ren-

dered necessary; the contractor being .at liberty, in case of increased 4

expedition, to relinquish the contract on timely notice, if he should prefer

it to the change. | :

And the United States covenanted and agreed with your petitioner

to pay him, in consideration of his services under said contract, the sum

of seven thousand two hundred and forty-five dollars a year, to wit,

quarterly, in the months of May, August, November, and February,

Leper nssinen

.

’

ALVORD VS. UNITED STATES. : 3

througb the postmasters on the route, or otherwise, at the option of the

Postmaster-General of the United States.

And it was further stipulated and agreed that said contract should,

mn all its parts, be subject to the terms and requisitions of an act of

Congress passed on the “ist of April, 1503, entitled “ An act concern-

ing public contracts.’

‘Aud your petitioner further represents that on the 24th day of f April,

1858, at Washington aforesaid, be entered into another contract in

writing with the United States of America, (the said United States

acting in that behalf by their Postiaster-General,) which said contract

was sealed and delivered between the said parties on the day and year

last aforesaid, and by which your petitioner contracted to transport-the

mail on route No, 11087, from Conneil Bluffs, lowa, to Omaha

j City, Nebraska Territory, and back, six times a week, in four-

horse coaches, with certainty, celerity, and security, using there-

for such means as might be necessary to transport the whole “of said

nail, whatever might be its size or weight, for and’ during the term

commencing the Ist day of July, 1858, and ending with the 30th day

of June, 1862, said mail to be carried within the time fixed in the sched.

ule of departures and arrivals annexed to said contract, and so to carry

until said schedule should be altered by the authority of the Postmas-

ter-General of the United States, asin said contract provided, and then

to carry according to said altered schedule. |

And your petitioner did undertake, covenant, aud agree with the

United States to carry said mail in a safe and secure manner, free from

wet or other injury, under a sufficient oil-cloth or bear-skin, if carried

on horse, and in a boot under the driver’s seat, if carried in a coach or

other vehicle, and in preference to passengers, aud to their entire ex-

clusion if its weight and bulk should require it; and also to take the

mail aud every part of it from, and deliver it and every part of it at,

each post-office on the route, or that might thereafter be established on

the route, and iuto the post-office at each end of the route, and into the

post-office at the place at which the carrier stopped at night, if one was

kept there; and if no office was kept there, to lock it up in some secure

place, at the risk of the contractor; and also to convey, without addi-

tional charge, post-office blanks, mail locks and bags, and’ the ape

agents of the Department, on the exbibition of their credentials, if :

-eoach or other suitable conveyance was used.

And it was further stipulated and agreed in and by said contract that

the Postmaster-General might alter the contract, and alter the schedule,

he allowing a pro rata increase of compensation, within the restric tions

iinposed by law, for the additional service required, or for the increased

speed, if the employment of additional stock or carriers should be ren-

dered necessary: the contractor being at liberty, in case of increased

expedition, to relinquish the contract on timely notice, if he should pre-

fer it-to the change.

And the United States covenanted and agreed with your petitioner

to pay him, in consideration of his services ander said contract, the sum

of three handred dollars a year, to wit, quarterly, in the months of May,

August, November, and F ebruar y, through the postmasters on the route,

or otherwise, at the option of the Postmaster-General of the U nited

States.

And it was further stipulated and agreed that said contract should,

in all its parts, be subject to the terms and requisitions of an act of

Congress passed on the 21st day of April, 1393, entitle 1 **An act con-

cerning public contracts.”

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ALVORD Vs. UNITED STATES.

e 12th day of May;

a into another contract

2

States geting 10 that pehalf by t their

said eontract was sealed a and deliv rered betW

ast af by which your petitioner cont

route 0. 4005, from Omaha City, + &

first day of July, 1855, and ending

to be ¢ rried within tl in the § schedule a dep

arrivals annexe

should be altered by

United States, as 10 said contract provi

to said altered schedule.

And your pe it] did undertake, © covenant, é

: nited States to earry Sat

et or other injury, ! inder the driver’s seat, an

ne passengers. and ion if }

t there, to lock it up seme secure DP

il-bags, and ee —_ pills enu-

¢ and describing the same, !

ik -office blanks, te ‘page ‘

eonve?

xhibition of their credentials.

special ‘agents 0

And it was furthe

the Postmaster Genet

ne allowing - rata increase 0

imposed | by , for the : addition®:

speed, if

al might alter the cou tract, and alter

{ compensation, ithin &

| service requir “ed,

al stock or carriers agit

iberty, in case O

ish “a eoutract on timely not

fer if to the change.

3 cov -enanted and agreed with y

“ation of his services under said contract,

1 fitty ¢ dollars a year, to wit,

; of May, August, Nov -ember, a0

, the route, © or otherwise, at the option of the

. s farther stipuli ated and ag

in all its eae be subject 00 the terms § ‘and requisitions of an ac

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gress passed on the 21st day of April, 1308,

public contracts.

irther represents that on

And your petitioner | ft

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September, 1358,

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creed that said eontract aandili,

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other eontract 10 writing

United States acting in that behalf by their Postmas er-Genera >) see

said contract as sealed and delivered between the gaid parties 00 the

ay and — last aforesaid, and bY which your petitioner contracted to

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ity, to Fort Kearney 4 and back,

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ALVORD VS. UNITED STATES. 5

covered spring-wagons, and with six mules if the weight of the mail

should require it, and to carry the entire mail with a suitable guard,

&c., for and during the term commencing the first day of October, 1858,

aud ending with the 30th day of June, 1862 : aid mail to be carried

within the times fixed in the schedule of departures and arrivals an-

nexed to said contract, and so to earry until said schedule skould be

altered by the anthority of the Postmaster-General of the United ‘States,

as in said contract provided, and then to carry according to said altered

schedule.

And your petitioner did undertake, covenant, and agree with the

United States to carry said mail in a safe and secure mauuer, free from

wet or other injury, in a boot under the driver’s seat, and iu preference

to passengers, and to their entire exclusion if its weight and bulk should

require it; and also to take the mail and every part of it from, and de-

liver it and every part of it at, each post-office on the route, or that

might thereafter be established on the route, and into the post-office at

each end of the route, and into the post-office at which the carrier

stopped at night, if one was kept there; and if no office was kept there,

to lock it up in some secure place, at the risk of the contractor; and

also to convey, without additional charge, post-office blanks, mail-bags,

and the special agents of the Department, on the exhibition of their ere-

dentials, |

And it was further stipulated and agreed in and by said contract

that the Postmaster-General might alter the contract, and alter the

schedule, he allowing a pro rata increase of compensation, within the

restrictions imposed by law, for the additional service required, or for

the increase of speed, if additional stock or carriers should be necessary ;

the contractor being at liberty, in case of increased expedition, to re-

linguish the contract on timely notice, if he should prefer it to the

change.

And the United States covenanted and agreed with your petitioner

to pay him, in consideration of his services under said contract, the

sum of nine thousand nine hundred and eighty-nine dollars a year, to

wit, quarterly, in the months of May, August, November, and February,

through the postmasters along the route, or otherwise, at the option

of the Postmaster-General of the United States.

7 And it was farther stipulated and agreed that said contract

should, in all its parts, be subject to the terms and requisitions of

an act of Congress passed on the 2Ist April, 1508, entitled “An act con-

cerning public contracts.”

Your petitioner further represents that the routes embraced in the

foregoing contracts from Marengo, Iowa, to Fort Kearney, Nebraska

Territory, constituted one continuous route about four hundred and

ninety miles in length, and, according to the terms and conditions of said

contr: icts, your petitioner was to transport the mail over about one

hundred miles of said route six times a week, in four-horse coaches ;

over about one hundred and forty-eight miles of said distance three

times a week, in four-horse coaches; over about eighty-two miles of said

distance three times a week, in two-horse coaches ; and over the remain-

ing one hundred and sixty miles of said distance once a week, in four-

mule coaches. |

He further states that immediately after he had entered into said con-

tracts he purchased all the borses, mules, coaches, and wagons which

were necessary to enable him to fulfil his said contracts and to perform

all the service and duties imposed and required by said contracts, put

them upon the routes designated in said contracts, emploved the requi-

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n ALVORD Vs. UNITED STATES.

site number of drivers, &e., and began and continued the transportation

of the — over said routes, complying, in all things therewith -con-

nec ted, with the terms and conditions of his said eontraets to the entire

satisfaction of the Postmaster-General of the United States.

He further states that when he entered into the said several contracts

the great overland California mail was transmitted from the Atlantie to

the Pacifie States via Toledo, Ohio, to Quincy, Ilinois, and thence by the

Hannibal & S’t Joseph Railroad, and that no part of it passed over the

rontes embraeed within the aforesaid contracts of your petitioner, and

that all the mail-matter at that time forwarded by the routes included in

his contracts could be and was rong a earried in the boot of the coach

nader the driver’s seat, as pri »vided in said contracts; and it was not

then supposed that the nataral inere pap population and business during

the time said eontract had to ran would eali for any additional or in-

creased means or facilities of mail-transportation over said routes to

those provided for in satd pear and bat for the circumstances here-

inafter mentioned no additional Mess OF facilities for transportation

of mail-matter over said routes would have been necessary, or demanded,

turing the fuanee of said contracts.

Your petitioner further represents that whilst be was : and in the

ransportation of the mails over the routes aforesaid, in compliance with

his contracts aforesaid, to wit, on the 16th day of September, 1861, the

Postmaster-Geueral, in couseqaeuce of the interruption of travel

3 over the Hannibal & S’t Joseph Railroad, caused by the rebellion

} Cae eee ee, eee ni ome om : ea ee re _

then existing in Missouri, ordered, directed, and caused all the

overland and ¢ Jalitor ia o

te ails, which were then being sent by Toledo,

(thio, via the % Fahne Va ley Railroad to Quiney, HUhnois, and thence

by the Fenian! & S’t Joseph Railroad, to be sent from Chicago via

Davenport, lowa, as far as Marengo by railroad, and beyond Marengo

in coaches over the routes embraced in your petitioner’s said contracts

to Fort Kearney, the junction with the great overland mail route; and,

in obedience to said orders and instruetions, the overland and California

mails from Boston, New York, Philadelphia, Washington, Baltimore,

buffalo, Pittsburgh, and Caicago were sent over thc routes in yrour

petitioner’s said coutraets from the said 16th day of September, 1361,

till the Ist of January, 1962, and transported over said routes by your

petitioner, instead of being s — a3 theretofore to Quincy, Lilinois, and

thence by the Hannibal and S’t Jose _ Railroad.

He further states that the a ditional mail-matter thus thrown upon

his reutes, and which he was required to and did transport daily trom

Marengo, Iowa, west to Fort Kearney, Nebraska Territory, and from

Fort Kearney east to Marengo, amour ated to from thirty to forty sacks

per day, weighing from 1,500 to 3,000 pounds, all of which he trans-

ported daily over the entire di stance between said places; and to ema-

him to perform said service be was compelled toand did purchase a

rge additional number of horses and coaches, and employ an additiona!

number of drivers at a large outlay of money; that during the time he

S } ocfortaine this extra ‘serv ice the reads were very bad: that this

additional service was thrown upon him w ra previous notice, and

had to be instantly provided for; and, including the additional stock

he was obliged to purchase, and the ov erworking of all his stock, (hav-

ing to run during the entire time, irom the 16th of September te the first

of January, not less than ten extra coaches per week.) it cost him net

less than three hundred dollars per day to perform the extra and addi-

tional serviee required of him in transporting the said overland and

California mails. The freight of which said extra mails consisted,

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ALVORD VS. UNITED STATES.

charged at the regular price charged to individuals for the transporta-

tion of freight, would have amounted to about the sum.of eight hun-

dred dollars per day. :

He further states that if he were paid for this extra service at the

same rate which the Overland Mail Company, was paid by the Govern-

ment under its contract with said company for transporting the same

mail, his compensation would amount to over eighty thousand dollars.

Your petitioner further states that he transported said mails, as above

stated, by the order and direction, and at the request of the Postmaster

General of the United States, and for the United States, and upon the

implied understanding and agreement that he should be paid

9 therefor what said services were reasonably worth; and he avers

; that said services so performed by him at the special instance

and request of the United States, and for ‘the benefit of the said United

States, were reasonably worth, and that he, deserves to have therefor, the

sum of thirty-five thonsand one hundred d ollars, no part of which has

yet been paid him; but the said United States have heretofore refused

and still do refuse to pay him the same, or any part thereof, to his great

injury and oppression.

And your petitioner further represents that heretofore, to wit, some

day in January or February, 1865, he presented his account for the ser-

vices aforesaid to the Postmaster-General of the United States, and

adduced his proofs in support thereof and demanded payment of the

same, but the said Postmaster-General, acting for and on behalf of the

United States, refused to allow or pay any part of said account, and the

whole thereof remains unpaid.

And your petitioner files herewith his account against the United

States for the services aforesaid, amounting to the said sum of 835,100,

and prays that it may be taken and considered as a part of this peti

tion; and that his said claim may be investigated and allowed, and that

he may have relief according to law and equity ; and, as in duty bound,

he will ever pray, &c.

BROWNING & EW ING,

Washington, D. C., Counsei for Petitioner.

Post-otlice address of the claimant: Indianapolis, Indiana.

STATE OF INDIANA,

County of Marion, scts:

Elijah S. Alvord, the claimant in the foregoing petition, be.ng first

duly sworn, deposeth and saith that no assignment or transfer of said

claim, or any part thereof, or any interest therein, has been made; that

said claimant is justly entitled to the amount in this petition claimed

from the United States of America, after allowing all just eredits and

off-sets, and that he believes the facts stated in said petition are true.

ELIJAH 8S. ALVORD.

STATE OF INDIANA,

Marion County, 88:

Before me, the undersigned, a notary publie in and for said

10 county, personally appeared the above-named Elijah S. Alvord, who,

being by me first duly sworn, deposeth that the above statement

is true, to the best of his knowledge and belief.

HAYDEN,

Notary Public.

INDIANAPOLIS, INDIANA, August let, 1865.

U.S. Guanes to I. 8. Alvord, D’r.

To transporting overland mail between Marengo, Iow., and Fort

8 ALVORD VS. UNITED STATES.

Kearny, Nebraska, 430 miles, from from September 6th, 1561, to Jan-

uary ist, 1562.

BST Gave, ot GS00 per dar... . =. .. 0... on cs.

rl

(Endorsed :) Filed August 21, 1865.

Ll Traverse.

In the United States Court of Claims, October term, A. D. 13865.

THE UNrIrep STATES

ix,

ELIJAH 8S. Atvorp. 4

And the said defendants, by John J. Weed, their solicitor, come and

make answer to the petition of the claimant on file herein; and not con-

fessing the same, or any part thereof, doth hereby most expressly deny

each and every the allegations therein contained, and eall for striet

proof of the same.

And to so much of the said petition as sets forth & avers that the

United States is indebted to said claimant in the sum of thirty-five

thousand one hundred dollars, the defendants say that they are

t2 not indebted to said claimant in said sum of money, nor any part

thereof.

JOHN J. WEED,

Assistant Solicitor for the United States.

(‘Endorsed :) Filed Sept. 3, LS65.

13 : Final judgment.

| By na s ~ we og “* :

mXtract from minutes.)

WASHINGTON, Monday, May 15, 1874.

The court met according to adjournment.

Present: Charles D. Drake, ch. justice; Edward G. Loring & .

‘haries C. Nott, judges. .

ELIJAH S. ALVORD }

rs.

Tue Unirep Srares. 5

Judge Loring announced the decision of the court, and judgment

was ordered to be entered as follows: 3

The court, on due consideration of the premises, find for the defend-

ants, and do order, adjudge, and deeree that the claimant’s petition be

dismissed.

Judge Nott filed a dissenting opinion.

14 | United States Court of Claims.

ELIJAH S. ALVORD }

re. >

Tue Unrrep Srares. \

Findings of faet hry the court.

I. In 1858 the Postmaster-Generail entered into five written contracts

2

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Lo

ey

ALVORD VS. UNITED STATES. 9

with the claimaut for the transportation of the mail between Lowa City

and Fort Kearney. Between lowa City and Des Moines the service was

to be performed s’x times a week each way by four-horse coaches; be-

tween Des Moines and Council Blatfs three times a week by two-horse

coaches; between Council Binffs and Omaha six times a week in four-

horse coaches; between Omaha and Columbus three times a week by

two-horse coaches; between Columbus and Fort Kearney once a week

by four-mule covered spring-wagon.

And each of these contracts “contained the following provisions, re-

quiring the contractor—

“To carry said mail in a safe and secure manner, free from wet or

other injury, in a boot under the driver’s seat, and in preference to pas-

sengers and to their entire exclusion if its weight and bulk require it.

‘“ To take the mail and every part of it from, and deliver it and every

part of it at, each post-office on the route, or that hereafter may be es-

tablished on the route, and into the post-office at each end of the route.”

On the 25th July, 1861, while these contracts were still in foree, the

claimant offered, in writing, ‘to improve the service from Omaha to

Kearney City,” which had been substituted for Fort Kearney as the ter-

minus, * for 214,000 additional per annum,” and the Postmaster-General,

on the 26th July, 1861, ordered, by an endorsement on the original con-

tracts, that the ser vice between Omaha and Kearney City be inereased

toa daily service, and that the claimant be allowed “B14, 000) additional

per annum, to take effect from the date of its commencement.” This

additional service began on the 5th August, 1861,

II. On the 16th September, 1861, in consequence of the route estab-

lished by Congress for the through California mail having been broken

by the burning of bridges, the Postmaster-General ordered the Califor.

nia mail to be sent over claimant’s routes; and the claimant transported

it under and in pursuance of such order from the 16th September to

se 25th December, 1561. It greatly exceeded in bulk the other mail-

atter which the claimant transported under his contracts, and on some

of his routes required for its conveyance at times as maby as five coaches

per day in addition to the one coach which he would otherwise have

run, and it at all times and on all of his routes required one or more ad-

ditional coaches which were used‘ exclusively for it, and the fair and

reasonable value of the service for the period named was the sum of

$35,100,

15 Ill. Immediately after the claimant’s services for carrying the

Calitornia mail, as set forth in the second finding, had terminated,

he presented his account therefor to the Postmaster-4seneral, and re-

quested that it be liquidated and paid, but the Postmaster-General re-

‘fused to allow or pay the same, and directed the Second Assistant Post-

master-General to reply “that when he made the arrangement to give biim

the &14,000 per annum additional for improved service between Colum-

bus and Fort Kearney, it was in view of his conveying the overland

mails over that route and through lowa free of additional expense

should circumstances make it necessary temporarily so to send them;

and that if the claim for additional compensation for such service is to

be pressed, he would feel compelled at once to annul that arrangement.”

The Second Assistant Postmaster-General redueed such instructions to

writing, in the form of a letter from himself to the claimant, and caused

it to be mailed to the claimant at his residence, in Indianapolis, In-

diana. Subsequent to the mailing of snch letter, and while the addi-

tional mail-service at $14,000 per annum was still being rendered, the

claimant presented documents to prove the justice of his claim for con-

,

PF ERT SRN IRS ENS DE ie RIS AR an oan aA A. «

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10 ALVORD VS. UNITED STATES.

veying the California mail, and otherwise pressed his demand by per-

sonal “interviews with the Second: Assistant Postmaster: General, with

whom all of the business relating to this elaim had previously been

transacted. He did not otherwise notify the Postmaster-General that

his claim for the California mail-service would be pressed. The Second

Assistant Postmaster-General did not inform the Postmaster-General

that the claimant thus pressed his demand for the California mail-service.

The claimant continued to run a daily mail between Omaha and Fort

Kearney, and to receive the consideration at the rate of $14,000 per

annum, from the 12th of February, 1862, when the Postmaster- General’s

decision was made, up to the termination of the original contract on the

Oth June, 1862.

1G Piaintifi’s request for finding of facts.

iu Court of Claims.

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The plaintiff asks the eourt to find the following facets in addition to

those already tound and certified:

. That the mail-service performed by the plaintiff upon the routes

me re ioned in finding 1, made by the court, made a continuous line 433

A Ad oy

miles in length, for which the compensation amounted to $45,159 per

annum.

Endorsed by the court. “Allowed.”

That in the making of the contracts and arrangements men-

17 tioned in finding 1 the circumstances at the time were such that it

was neither understood or contemplated by the parties that the

overland California mail should be carried over or upon either of the

plaintiff’s mail-routes.

Endorsed by the court, “Allowed.”

. That save and except the period of time mentioned in finding 2,

thet ‘alifornia overland mail was transported by rail via Quiney, L's,

to S’t Joseph, Mo., and Atchison, Kansas, and from thence by coach to

Placerville, & the compensation allowed at that time for carrying the

same, for that part of theservice performed by coach, was at the

18 rate of 84.75 per mile per annum.

Endorsed by the court, “Allowed.”

The orders of the Postmaster-General, turning the California over-

faa mail over and upon the plaintiff’ routes, as mentioned in finding 2,

were In writing.

Endorsed by the court, “Allowed.”

During the period of time these these transactions the Second

A saldtat Postmaster-General was, by virtue of his office, at the head and

in charge of the Contract Bureau of the Post-Office Department.

Endorsed by the court, “Allowed.”

THOMAS WILSON,

Attorney for Plaintiff.

‘Endorsed :) Filed May 7, 1574.

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ALVORD VS. UNITED STATES.

19 Defendant's request for fi nding of effects.

U.S. Court of Claims.

E. S. ALVORD }

rs ¢ 2170.

THE UNITED STATES.

Request for findings.

¢

And now comes the Attorney-General, on behalf of the United States,

and requests the following findings of fact by the court:

1. That the Postmaster-General knew of the interruption of the over-

land mail on the 17th day of July, 1561, by armed rebels.

Endorsed by the court, “* Refused as irrelevant.”

2. That the claimant presented on January 20, 1862, a claim

20 for additional compensation amounting to $23,400 for additional

service; that is, carrying the overland mail from Sept. 16 to Dee.

25, 1361.

Endorsed by the court, ** Refused as irrelevant.”

3. That the letters of February 25th and 27th, 1862, from postmasters

and route-agents were received through the mails by the Second Assistant

Postmaster-General.

Endorsed by the court, “ Refused as not tidaaa by evidence.”

JOHN GOFORTSH.

Asst Atl y- Gen’.

(Endorsed :) Filed May 7, 1874.

21 LORING, J., delivered the opinion of the court:

When this case was heard before it was considered that the claimant

was barred of bis claim because after the Postmaster-General had de-

cided that the extra mail-service would be discontinued if the petitioner

persisted in his claim, he had acceded to that by performing the extra

service and receiving the money for it without protest. A rehearing

was granted to the petitioner to permit hita to snow such protest, and

he has submitted evidence for the purpose. Bat we think it fails to

prove it, and that it shows his attempts to induce the postmaster to

change his decision, while the petitioner was all the time acting on it in

performing the extra service and receiving the compensation for it, which

he knew would not have been paid to him if his claim had not been

abandoned and understood to have been.

The petition is dismissed.

‘Nott, J., dissenting:

On the former trial the evidence indicated a complete and absolute

acquiescence on the part of the contractor in the decision of the Post-

master-General, from which acquiescence we were bound to infer that

he was in good conscience estopped from again pressing hisclaim. The

benefit received by the contractor from his silence, we then pointed out,

was exceedingly trivial as compared with the magnitude of the claim,

which he apparently consented to relinquish. It now appears that after

the notice was given by the Postmaster-General the claimant did, in

’

as

hale

12 ALVORD VS. UNITED STATES.

ease I think that he did not intend to keep silence, or to be considered as

keeping silence, and that he was neither morally nor legally bound to

give any formal notification te the Postmaster-General, or to do any-

thing more than that which he did do, namely, to continue pressing his

claim for the California mail-service. It is one of those cases where the

law does not allow an estoppel to be implied; where the burden of proof

rests exclusively upon the party who relies upon the estoppel, and where

the estoppel springs entirely out of moral obligations and not out of

legal formalities. For these reasons I[ think the claimant should re-

cover. }

22 Motion for new trial.

December term, 1873.

ELIJAH S. ALVORD

art |

vs.

THE UNITED STATES.

Now comes the plaintiff and moves the court to set aside the judg-

ment rendered at the present term, and for a new trial and for cause

thereof says:

The court erred upon the facts proved and found in rendering judg-

ment in favor of the defendants, and in not rendering judgment in favor

of the plaintiff.

THOMAS WILSON,

Atty for Plaintiff.

Filed July 11, 1874.

23 Motion for appeal.

E. S. ALVORD }

v8. > 2170.

Ga

Now comes the plaintiff in the above-entitled cause and prays an ap-

peal to the Supreme Court from the judgment rendered May 18, 1874.

THOMAS WILSON,

Attorney for Plaintiff.

{ Endorsed :)

Filed July 23, 1874. A. H.

Allowed February 1, 1875. A. H.

24 : Continuance of motion for new trial.

(Extract from minutes.)

WASHINGTON, Monday, Nov. 23, 1874.

The court met according to adjournment.

Present: Charles D. Drake, ch. justice; Edward G. Loring, Charles

C. Nott, & William A. Richardson, jadges.

* ” a + * ee .

ELIJAH S. ALVORD }

vs, >

THE UNITED STATEs. \

The motion for new trial in this case was continued.

fact, continue to press his claim. Coupled with the other facts of the

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ALVORD VS. UNITED STATES. 13

WASHINGTON, Monday, Feb’y 1, 18

Court met according to adjournment.

Present: Charles D. Drake, cb. justice; Edward G. Loring, Charles

C. Nott, & William A. Richardson, judges.

25 * * * * © . Pa

EvisaH S. ALVORD

v8.

THE UNITED STATES.

The motion for new trial in this case was overruled.

* * * € « + ‘=

M’r Wilson, for the claimant, presented an application for the allow-

ance of an appeal filed July 23, 1874, and it was allowed as prayed for.

By the court.

— 26 In the Court of Claims.

ELIJAH S. ALVORD

vs. No. 2170.

THE UNITED STATES.

I, John Randolph, assistant clerk of the Court of Claims, do hereby

certify that the foregoing are true transcripts of the pleadings in the

above-entitled cause, and the final judgment of the court thereon; of the

application of the solicitor for the.claimant for the allowance of an ap-

peal, as filed in the clerk’s office, July 23, 1874, and of the order of the

court, February 1, 1875, allowing the same; of the of the finding of facts

by the court; of the requests of the claimant and defendants for addi-

tional findings, and the orders of the court endorsed thereon; of the opin-

ion of the court, and the dissenting opinion of Judge Nott; of the motion

of the claimant for new trial, and the order of the court refusing same.

In testimony whereof I have hereunto set my hanc and affixed the

seal of said court, at Washington, this twelfth day of February, A. D.

1875.

[ SEAL. | JOHN RANDOLPH,

Ass’t Clerk Court of Claims.

(Indorsement on cover:) No.69. Elijah S. Alvord, appellant, vs. The

United States. Court of Claims. Filed May 3d, 1875.

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.GUMENT OF THOMAS WILSON FOR

APPELLANT.

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Supreme Court of the alnited

OCTOBER TERM, A. D, 1874,

ELIJAH 8S. AlLVORD, Arpeutanr,

Us.

THE UNITED STATES, Appetes.

Appeal from the Court of Claims.

BRIEF AND ARGUMENT OF THOMAS WILSON FOR

APPELLANT. 3

Assignment of Errors.

Tle Court of Claims erred:

1. Upon the facts stated, in rendering judgment in favor of

the defendant.

2. Upon the facts stated, in not rendering judgment in favor

of the claimant.

Statement of the Case.

I propose to follow the arrangement of the court below in

its findings of fact. I adopt those findings. What I say

will only be explanatory of them.

In accordance with the statute, the Postmaster General,

every four years, advertises for proposals for carrying the

United States mails. He receives the bids and makes the

contracts. They are to be of four years’ duration.

OP gen ae ee

Soh De aR a Ge Sea AE

SPT Lie Peag ¢ (ee a SET NET AG og

9

He did so in the spring of 1858. The contracts thus

made were for services to begin July 1, 1858, and end June

30, 1862.

In 1858 he entered into five written contracts with the

claimant for the transportation of the mail between lowa

City, in Iowa, and Fort Kearney, in Nebraska.

Between Iowa City (afterwards Marengo) and Des Moines

the service was to be performed six times a week each way

by four-horse coaches. Between Des Moines and Council

Bluffs, three times a week each way by two-horse coaches.

Between Council Bluffs and:-Omaha, Nebraska, six times a

week in four-horse coaches. Between Omaha and Columbus

three times a week by two-horse coaches. Between Colum-

bus and Fort Kearney once a week by four-mule covered

spring wagon.

By the extension of the Mississippi and Missouri Railroad

from lowa City westward, Marengo afterwards, became the

eastern terminus of the claimant’s stage route.

This made a continuous mail line from Marengo to

Kearney, 433 miles in length.

The contracts provided for the above number of trips in

each week, each way, and specified the foregoing as the

means of conveyance. They were made in the ordinary and

usual manner, and contained the ordinary and usual stipu-

lations. ‘The contractor was to carry the mail in a safe and

secure manner in a boot under the driver’s seat, and in pref-

ence to passengers, and to their entire exebusiie (from the

coaches) if its weight or bulk required it. And he was to

take the mail from every post office on the route, and deliver

it to every other, and into the post office at each end of the

route.

The compensation to the contractor was specified in each

contract, but he was to collect from each postmaster along

the routes the various sums due the United States quarterly ;

te. CCE

3

and after the deduction of his compensation he was to pay

over the balance to the Post Office Department.

Matters progressed in this way quietly and without change,

the claimant performing the service and receiving the com-

pensation, up to the summer of 1861.

In the spring of that year, Congress established the route

for the California overland mail from Achison, Kansas, to

Placerville, California, (12 Stat., pp. 169, 205.) This was

a daily service, and the price fixed was $1,000,000 per an-

num, or at the rate of $475 per mile per annum. |

The route was established via Fort Kearney, where it in-

tersected the western terminus of the claimant’s routes.

Desiring more perfect mail facilities with California and

the West, various prominent citizens of Iowa and Nebraska

during the summer of 1861 petitioned the Postmaster Gen-

eral that the mail service on the claimant’s routes, between

Omaha and Fort Kearney, be increased from weekly and tri-

weekly, as it then was, to daily. ‘These petitions were pre-

sented to the Postmaster General by General Curtis, then

member of Congress from Iowa. Negotiations were opened

with the contractor, which, after some haggling and dicker-

ing as to price, resulted in the following agreement: On

the 25th of July, 1861, the claimant offered in writing ‘‘ to

improve the service from Omaha to Kearney for $14,000 ad-

ditional per annum.’’ This offer the Postmaster General

accepted on the 26th of July, and ordered, by an endorse-

ment upon the original contract, ‘‘ that the service between

Omaha and Kearney be increased to a daily service, and that

the claimant be allowed $14,000 additional per annum, to

take effect from the date of its commencement.’’

This additional service commenced on the 5th of August,

1861. :

I call the special attention of the court to this improvement

+

| eee of service, for out of it has grown the only defence the United

: States has made to this claim.

The offer was for a specific service. It was specifically

accepted. The offer and acceptance were both made in

writing, and were respectively dated July 25th and 26th,

1861. The performance commenced August 5th.

The only effect of the arrangement was to increase the

number of trips between Omaha and Kearney from weekly

: and tri-weekly to daily. It had no reference to the number

3 : of trips between Marengo and Omaha, nor did it work any

s change in the kind, weight, or amount of mails to be carried

on any portion of the clatmant’s routes, either east or west

of Omaha. |

There was a provision in the contracts which was in ac-

cordance with the statute that if the Postmaster General

shonld increase the service, it should be with a pro rata in-

eral provision inserted in all contracts. This provision was

not lived up to by the Postmaster General, as I will show.

By the original contract the mails were to be carried be-

KO

tween Omaha and Columbus, 78 miles, three times a week,

by two-horse coaches at a compensation of $4,250 per annum ;

eo and between Columbus and Fort Kearney, 120 miles, once a

ees week, by four-mule covered spring-wagons, at =9,989 per

ee annum, making a total of $14,239 for the weekly and tri-

weekly service between Omaha and Kearney.

— This ‘‘ arrangement’’ of July 25th and 26th wrought an

x increase in the number of trips from 23 to 7 times greater

than before, while the compensation was not quite doubled.

This increase of compensation was not pro rata with the

ee increase of service, and the claimant might well have in- .

lea sisted upon a greater compensation ; this occasioned the

es haggling before spoken of. But he performed the increased

service and accepted the increased compensation ; he cannot

crease of compensation. This I suppose to have been a gen-

5

now make any claim in that respect. It was fulby settled in

the order of July 26th, and fully paid for by the $14,000-ad-

ditional per annum.

While he can make no claim or demand for more money

for the service required under ‘the order of July 26th, so the

United States can make no claim or demand for more service

than was required under that order. Nor can they be al-

lowed to say that the $14,000 therein provided, should be

held to be compensation for another and different service,

ordered at subsequent time and performed upon other and

different routes. |

Up to September 16, 1861, the service under the contracts

as enlarged by this $14,000 arrangement, was performed by

the claimant and he received the compensation agreed upon,

in the manner heretofore described, without complaint by

either party.

At this point of time, September 16, the facts begin out

of which spring this controversy. They are detailed in the

second paragraph of the findings by the court, and para-

graphs third and fourth of facts found as requested by the

claimant.

On the 16th of September, 1861, in consequence of the

route established by Congress for the through California

mail having been broken up by the burning of bridges, the

Postmaster General ordered, in writing, the California mail

to be sent over the claimant’s routes; and the claimant

transported it under and in pursuance of such order from

the 16th of September to the 25th of December, 1861.

This order of September 16 was a different order, entirely

distinct from that of July 26, before described. |

The ronte selected and established for the transportation

of the California overland mail was by rail from Quincy,

Illinois, to Saint Joseph, Missouri and Atchison, Kansas ;

6

and from thence by coach via Fort Kearney to Placerville,

California. | |

That portion of the route which was broken by the burn-

ing of bridges, was east of Fort Kearney and principally

on the Hannibal and St. Joe Railroad through the State

State of Missouri. The coach service was still continued

westward from Fort Kearney. But it became necessary that

the route via Atchison and the Hannibal and St. Joe Railroad,

should be avoided and a connection made with Fort Kearney

by some other route.

The Postmaster General accordingly chose a route further eee

to the north, crossing the Mississippi river at Davenport,

Iowa, instead of Quincy, Illinois, and ordered the California

overland mail to be sent over the Mississippi and Missouri

Railroad to Marengo, Iowa, and from thence over the claim-

ant’s routes through Des Moines, Council Bluffs and Omaha

to Fort Kearney, when it was again taken on the regular

overland mail route to Placerville.

But for this: order the claimant would never have had to

carry any of the great California overland mail. By this order 4

he had to carry it all from September 16 to December 25,

1861.

The present claim is for compensation for carrying this

California overland mail. It is confined exclusively to the

extra service imposed by the order of September 16, 1861,

and has no reference to the order of July 26th. It pertains

entirely to the increased bulk of mail matter to be carried

between Marengo and Kearney and is not affected by the

daily mail established between Omaha and Kearney.

The court finds as a fact (par. 2,) that this California mail

greatly exceeded in bulk the other mail matter which he was

required to transport under his contracts and on some of his

routes, required for its conveyance, at times, as many as five

coaches per day, in addition to the one coach which he would

otherwise have run, and it at all times, and on all his routes |

7

required one or more additional coaches which were used ex-

clusively for it ; and the fair and reasonable value of the ser-

vice for the period named was the sum of $35,100.

The court also finds, (par. 2, claimant’s request for find-

ings,) ‘‘ that in the making of the original contracts, and

also the ‘arrangement’ of July 25th and 26th, for the daily

service between Omaha and Kearney at $14,000 additional,

the circumstances, at the time, were such, that it was neitlier

understood nor contemplated by any of the parties, that the

overland California mail should be carried over or upon any

of the plaintiff’s mail routes.’’

With this meritorious cause of action the wonder is that

in this appeal the claimant should be the appellant. The

reason is said to be found in the 3d paragraph of the find-

ings of fact. ButI think it affords no justification for a

judgment in favor of the defendant.

This case has been twice tried in the court below. The

report of the first trial is to be found 8 C. Cls., 364; of the

second, 9 C. Cls. Upon the first trial it was found by the

court that immediately after the claimant’s services for car-

rying the California mail had terminated he presented his

account therefor to the Postmaster General for payment ;

but that the Postmaster General refused to allow or pay the

same, and directed the Second Assistant Postmaster General

to reply in writing, which he did in the form of a letter

dated February 12, 1862, signed by himself, saying ‘‘ that

when he made the arrangement with him (the claimant) to

give him the $14,000 additional for improved service between

Columbus and Fort Kearney, it was in view of his carrying

ying

the overland mails over that route and through Iowa free of

additional expense should circumstances render it necessary

temporarily so to send them. And that, if the claim for ad-

ditional compensation is to be pressed, he would feel compelled

at once to annul that arrangement.’’ |

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contract. Tt could not he annulled without the consent of the

contractor, or compensation to him in damanes : so a protest

by him against tts annuliment was unnecessary.

With the above findings of fact, I can only helieve that the

judgment in tavor of the defendant must have been rendered

under a misapprehension

The ground on which it was placed was that the claimant,

after the letter of Febraary 12, 1862, continued to pertorm

the extra service, and to receive the money for it; and that

this was done without protest ; and that the new trial was

rranted to enable him to show such protest.

A most careful reading of the opinion, (8 C. Cls., 234,)

delivered upon the first trial, and also upon the allowance of

the motion for new trial, fail to show anything said about a

‘“‘ protest ’’ or its necessity. The decision was based en-

tirely upon the estoppel im pais; and the new trial was

granted solely upon the alleged ability of the claimant to

remove by proof this bar.

The estoppel was said to have been wronght by the claim-

ant’s silence after the supposed. receipt of the letter of Feb

ruary 12,1862. In that letter the Postmaster General first

states his idea and intention, at the time when he made the

order for the increase of service bet ween Omaha and Kearney,

(which understanding and intention, by the way, has been

negatived by the court,) and then proceeds to say, ‘‘ that if

the claim for additional compensation (for carrying Califor-

nia mail) is to be pressed, he would feel compelled to annul

that arrangement.’’ Now,the only answer he could make or

give was tosay whether he would press his claim for the addi-

tional compensation, or whether he would not.

He could not, it is trne, show a formal written anawer to the

letter of February 12, for he states (and so declares under

oath, in his affidavit in support of his motion for new trial,)

9

10

that he never received or knew of such or any similar letter

being written to him.

Although no formal answer was given in writing by the

claimant to this letter, for the reason heretofore stated, yet.

he gave a good and sufficient answer thereto when he ‘‘ pre-

sented documents to prove the justice of his claim, and other-

wise pressed his claim by personal interviews with the Second

Assistant Postmaster General.’’ -No man could misunder-

stand this. It was a direct answer to the letter of February

12th. By it the claimant said plainly and in unmistakeable

language, ‘‘the claim for additional compensation is to be

pressed.”’ |

When this was shown to have been said, it answered the

charge of ‘‘ silence,’’ and removed the bar of estoppel in

pais. That having been done, nothing remained but to

render judgment for the claimant. I think in this the cor-

rect view is taken in the dissenting opinion.

The idea of ‘* protest’’ is here brought in by the majority

of the court for the first time. It is a new idea in this case,

and is, I think, erroneous. ;

Upon the claimant’s offer, made in writing, and its accep-

tance endorsed on the original contract by the Postmaster

General, the additional service entered into and became part

thereof, and the terms of the original contract became en-

larged to include both the additional service and the addi-

tional compensation. And they became as much a part. of ft

the contract as though originally inserted.

The right to alter, change, or extend a written contract |

by a subsequent ural one has been recognized by the common

law in all its ages and by all its sages.

Jeffrey vs. Walton, 1 Stark:, 267.

1 Sanders on PI. and Evd., p. 110.

Lawrence vs. Dale, 11 Verm., 549, 555.

Monroe vs. Perkins, 9 Pick., 298.

1 Greenleaf on Evd., 304.

1]

Question has been made whether the subsequent oral would

be valid to alter, change or extend the previous written con-

tract, when the contract was required by the statute of frauds

to be in writing. |

Goss vs. Lord Nugent, 5 Barn. and Adolp, 58.

27 BE. C., 233.

Adler vs. Freedman, 16 Cal., 140.

But this has no application to the case at bar for two

reasons: | |

First, the law does not require the original contract to be

in writing, and—

Second, the subsequent alteration or extension was in

writing. |

The contractor having acceded to the arrangement, per-

_ formed the increased service, and drawn the increased pay

from August 5, 1861, could not, in February, 1862, decline

to further carry it out. He could not then refuse to perform

the service, whatever he might have done at its commence-

ment—a refusal then would have been a breach of his con-—

tract, which would have justified an entire abrogation of it

by the Postmaster General, and the supply of the service at

the expense of the delinquent contractor. A failure or re-

fusal on this ground would have brought speedy punishment

upon the contractor in the way of fine.

No, all he could do, or could be required to do, was to

notify the Post Office Department of his intention to press

his claim for additional compensation, for payment, and then

if the Postmaster General saw fit to annul the $14,000 ar-

rangement, the claimant might consider what course to pur-

sue. If he coupled his annulment with an offer of proper

compensation. in the nature of damages, it might have been

advantageous for the claimant to accept. If not, it might

perhaps have given the claimant another right of action

upon the contract. .

Certain it is, that no ‘‘ protest’? would have availed him

anything, and that had he ceased the daily service between

12

Omaha and Kearney, and returned to the original schedule

without an order from the Post Office Department, he would

have subjected himself to severe penalties.

Illustration : Suppose two men contract for the building

of a house. The compensation is to be paid at the rate of

$1,000 per month, and the house is to be completed by the

Ist of October.

After a while the owner writes a letter to the builder, say-

ing ‘‘ I want you to finish the house by the Ist of July, and

when I agreed to give you $1,000, it was with that view.

If you do not agree to this, I shall feel compelled to refuse

to pay you the $1,000 per month.’’

The contract having fixed July 1st as the time for comple-

tion, and $1,000 per month as the rate of payment, will any

one claim that the builder is required to ‘‘ protest ’’ against

this unauthorized and unilateral change of contract in order

to save his rights. Can the owner change the contract in

violation of its terms simply by saying ‘‘ when I made it, it

was in view of your doing something else not in the contract

and not agreed upon between us; and if the other party

keeps quiet—gives no consent, but fails to protest, does that,

of its own force, work a change of the contract.

The letter of February 12,'1861, did not of itself pretend

to annul the $14,000 arrangement. It only threatened that

upon a certain contingency it might be done. But its an-

nullment was not at all certain. |

The same necessities which required an increase of service

between Omaha and the West, and the same motives which

prompted its original establishment, might require its con-

tinuance. ‘The welfare of the people might require its con-

tinuance even though the punishment of the contractor re-

quired its abolishment. :

But I deny the legal right of the Postmaster General to

arbitrarily carry out the threat—to abrogate or annul this

$14,000 arrangement.

en

Rowden

13

I have already shown that by these acts, of offer on the

one hand and acceptance on the other, and performance for a

given. period upon both hands, the terms of the original

contracts became enlarged to embrace both the increased

service and compensation—that they became as much part

of the contracts as though originally inserted. |

The obligatory character of a contract is such, that neither

party to it can rightfully vacate its conditions without the

consent of the other party.

The Postmaster General had no more right to annul this

$14,000 arrangement against the will or without the consent

of the contractor, than he had to annul any other portion, or

even the whole, of the original. If he did so, it would have

been an abrogation or breach of contract for which an action

of damages would lie. This proposed ‘‘ annullment”’

was not within the legal power or authority of the Postmaster

General unless with the consent of claimant, or accompanied —

with proper compensation as damages.

I will not say that the Postmaster General having once

made or extended or enlarged a contract for carrying the

mails, which may be found afterwards to be unnecessary,

cannot alter, change, or even abrogate it, but if he does, it

must be either with the consent of the contractor, or upon

tender of proper compensation, or such compensation as may

be provided by law, in the nature of damages. He cannot

make this alteration, change, or ‘‘annullment,’’ arbitrarily

and in disregard of the rights of the contractor.

If these be the corresponding and correlative rights of the

respective parties—if the consent of the one is necessary be-

fore the contract can be annulled by the other, then it is

clear that a protest from either would be unnecessary. —

Where consent is required, protest is useless. The refusal

of consent is quite as effectual to preserve the rights of either

as the fullest protest would be. ; ;

11

Suppose the contractor purposes to annul the arrangement,

withdraw the increased servicc and return to the original

schedule, and he does so without first obtaining the consent

of the Postmaster General—Would the Postmaster General

be required to show a protest on his part? I trow not. It

would be sufficient for him to show that he never gave his

consent.

In thecaseat bar theclaimant was never called on for his con-

sent to the annulment of the $14,000 arrangement. It was

neverannulled. When it was proposed to be annulled it was

only upon a contingency of his continuing to press his claim

for carrying the California mail. I have already shown that

this might never have been done, and that if done without |

consent or compensation, it would have been an arbitrary

and illegal proceeding. But to this proposition the claim-

ant either wittingly or unwittingly promptly replied by

‘pressing his claim.’’ -

Here all necessity for further action on his part, pertain-

ing to the annullment of the $14,000 arrangement, ended.

His only concern was with the claim for additional compensa-

tion. This he continued to ‘‘ press for payment by personal

interview,’ Cc.

This removed the bar or defence of estoppel, and no protest

being either needed or required from the claimant, judgment

should pass in his favor upon the facts found, for the value

of the services, $35,100.

: IT.

The claimant was not bound either by his contracts or by the

$14,000 arrangement to carry the California overland mail,

unless he was paid additional compensation therefor.

A clause in the original contract provided that the claim-

ant should ‘‘ take the mail and every part of it,’’ &c. This

has been claimed by the United States to require the claim-

ial

— eee

~~

15

ant to carry, without additional compensation, the five extra

coach loads per day, exclusive of passengers, of California.

overland mail, which was turned on his routes by the order

of September 16, 1861.

But this cannot be. In construing contracts the intention

of the parties is to govern. This is the test, the criterion.

In determining this intention the position of the parties and

the circumstances of the case are to be considered.

The rule has been thus stated by Swayne, J., in Scott vs.

The United States, 12 Wall., 443-44: ‘‘ It is the duty of

the court to assume the stand-point occupied by the parties -

when the contract was made—to let in the light of the sur-

rounding circumstances, to see as the party saw, and to think

as they must have thought, in assenting to the stipulations

by which they are bound.”’

It is the rule recognized in the text books.

2 Parsons on Contr., 499, 549, 560, note g.

1 Greenleaf Evi., 277.

1 Hilliard on Contr., 281, 282.

Applying this rule to the case at bar, the Court of Claims

has found as a fact (par. 2, claimant’s request for findings,)

‘¢ that in the making of the contract and arrangement men-

tioned in finding 1, the circumstances at the time were such,

that it was neither understood or contemplated by the parties

that the overland California mail should be carried over or

upon either of the plaintiff ’s mail routes.’’

And this finding is consistent with reason, for while the :

contracts were made in 1858, the California overland mail

route was not established until the spring of 1861. The

California mail had been carried by steam vessels via the

Isthmus of Panama. This provision is the ordinary and

usual, and is inserted in all contracts for carrying the mail.

mt hw! asia ae AAT ot p ‘

inode aires tow

16

When these contracts were made, the contractor and the

Department must both have intended the usual and regular

mail, acoording to the course pursued or expected to be pur-

sued between those points, and neither of them could contem-

plate the doubling, trebling, or quintupling its weight by

the diversion of an independent mail, which has been carried

on another and different route established by Congress for

that special purpose, and paid for at a much higher rate.

[ think the true construction of such contracts was given

by the Attorney General of the United States, B. F. Butler,

in 1835, when he says :

‘©1. Where the contract is to carry the mail in a particular

vehicle and by a particular number of horses; and the mail,

during the continuance of the contract, becomes so far increased

in weight, either by the increased business done on the origi-

nal route, or by attracting packages from other routes, that

it cannot be carried in the vehicle and by the horses men-

tioned in the contract, but an additional vehicle or an addi-

tional horse or horses become necessary, and are therefor re-

quired by the department ;—this, I think, is an ‘‘additional |

service’ for which a proportionate allowance may lawfully

be made.

‘2. Although no particular vehicle or number of horses

be mentioned in the contract ; yet, if the mode cf conveyance,

and the strength to be employed, were mentioned in the pro-

posals, or were otherwise clearly understood by the parties

when they entered into the contract, I think the case may

well be considered as standing on the same ground with the

one Just mentioned.

‘©3. You will observe that I speak without reference to

passengers. So long as the mail can be carried in the vehi-

cle and by the force specified in the contract, or otherwise

contemplated by the parties, I think the contractor is bound

to carry it, even though it may compel him to diminish the

number of his passengers, or even to exclude them altogether,

|

|

17

unless the right to carry at all times a certain number of

passengers is specially reserved to him in the. contract.’’

See also Rhodes vs. United States, C. of C., 1855.

Huston ‘6 66

McAtee & Eastman ‘* | 7

Illustration: The Baltimore and Ohio railroad has for

many years supplied the Western States with the mails from

Washington and Baltimore. It was carried twice a day each

way, and amounted in bulk each trip, lam informed, to sev-

eral tons. | |

At the same time, and at present, unless changed by the

late construction of the Metropolitan Branch railroad from

Washington to Point of Rocks, the mails were carried from

Washington to Rockville, Maryland, in a little two-horse

‘‘jerkey wagon,’’ and from thence on northwest to Frede-

rick and Harper’s Ferry. In the contract made on this two-

horse route will be found the same clause as in the claimant’s

contracts—that is, he is ‘‘ to take the mail and every part

of it,’’ &c., &c. It is a proper and necessary clause, and

should be put in every contract. But who will say that

under this clause the Postmaster General would have the‘

right, in case of suspension of travel on the Baltimore and

Ohio railroad, to turn the entire Western mail over the

Rockville route, and by his order issued to that effect compel

that contractor to hire teams, stock the route, and run five

teams each day where before he only was bound to run one,

and do this without any right to additional compensation,

The statement of the proposition is its own refutation.

Neither did the $14,000 arrangement contemplate such

carrying. | |

This is expressly found by the court, as above quoted.

The $14,000 arrangement consisted of a offer made by the

claimant in writing, and accepted by the Post Office Depart-

ment also in writing. No word is to be found in either

*)

)

ass Sea Sade CY Ay era ARE : PB GPs ENE

18 3 r

writing which can be tortured into an agreement tocarry the

California mail, or any understanding to that effect. ‘ It

provides for an increase in the frequency of trips ; it estab-

lishes a daily instead of a weekly and tri-weekly mai) ; it

pertains to service between Omaha and Kearney, and has no

reference—no allusion to any increase of service between

Omaha and Marengo, nor to an increase in the bulk of mails

to be carried over the entire routes. The contract for service

between Omaha and Kearney were entirely different and

separate from those between Marengo and Omaha. No en-

dorsement was made upon them, and nochange made in that

service under or by the order of July 26.

To seek now to prove by oral testimony what the inten-

tion of the party was at the time that order was made is in

direct conflict with the rule of law that parol contempora-

neous evidence cannot mami, alter, or vary a written in-

strument.

IIl.

‘¢ He pressed his demand by personsal interviews with the

Second Assistant Postmaster General,’’ dc.

Some point was sought to be made in the court below be-

cause the claimant did not press his claim before the Post-

master General in person or notify him personally that his

claim was being pressed for payment.

I think he was not obliged to do this. The findings of

fact show that immediately after his services for carrying the

California mail had terminated, he presented his account

therefor to the Postmaster General, and requested that it be

liquidated and paid. The Postmaster General did not see

fit to correspond or deal with the claimant. He turned over

the claim to the proper officer in charge of the Contract

Bureau. This was the Second Assistant. He gave him his

19

instructions and directed him what reply to make to the

claimant.

Thus, the whole matter, so far as the claimant was con-

cerned was in the hands of the Second Assistant. There

had been a regular reference of the claimant and his claim

to this officer. He it was with whom the claimant had to

deal, and with him alone. The claimant dealt with him, and

it was with him that he had the personal interviews.

This is a very technical objection, and I hope will not be

urged in this court. It refers to the etiquette of the Post

Office Department, and the relations between the Postmaster

General, and his subordinates, rather than toany legal right

belonging to, or duly imposed upon the claimant.

THomas WILSON,

Attorney for Appellant.

Sen

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Ju the Supreme Gourt of the United States,

Ce ee eee

ELIJAH S. ALVORD

US. tN 69.

THE UNITED STATES.

Brief for the United States.

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ELIJAH S. ALVORD

U8. No. 69.

THE UNITED STATES.

BRIEF FOR THE UNITED STATES. |

The record shows that in September, 1861, the claim-

ant, being then (and since 1858) contractor to carry the

mail from Iowa City to Kearney City, in Nebraska, was

called upon, because of an exigency arising out of the

late rebellion, to transport over such route, for one hun-

dred days, the overland California mail, which up to that

time had been carried upon another route.

At that time the compensation payable to the claim-

ant on account of his regular service (above) was $45,159

per annum, (folio 16.) Of this amount $14,000 had been

awarded to him by the Postmaster-General in July, 1861,

for a certain improvement in the previous regular service

under the contract of 1858; such improvement being a

change from tri-weekly, &c., service to daily service —

over a largé part of said route.

After performing such service, the sheneaiens presented

his account therefor to the Postmaster-General, and re-

quested that it be liquidated and paid; but the Post-

master-General refused to allow or pay the same, and

directed the Second Assistant Postmaster-Gerieral to

reply that, when arranging the improved service in July

ye

preceding, he (the Postmaster-General) had done so.in

view of the claimant’s carrying the overland mails over

that route and through Iowa free of additional expense,

should circumstances make it necessary temporarily so

to send them ; and that if the claim for additional com-

pensation for such service were pressed, he would feel

compelled to annul that arrangement. Accordingly a

letter to that effect was duly mailed to the claimant.

Thereupon no more was said by the claimant upon

that subject to the Postmaster-General, but ‘‘documents

to prove the justice of his claim ” were presented by him

to the Second Assistant Postmaster-General, and he

‘otherwise pressed his demand by personal interviews

with the Second Assistant | who was the head of the con-

tract bureau,| with whom all the business relating to

this claim had previously been transacted. He did not

otherwise notify the Postmaster-General that his claim

for the California mail service would be pressed.”

The Second Assistant did not notify the Postmaster-

General that the claimant had so “ pressed” his claim ;

and the latter continued his service according to the

improved terms until the close of his contract.

At the time when the improved service was ordered

“it was neither understood nor contemplated by the

parties that the overland California mail should be car-

ried over or upon either of the plaintiff’s mail-routes,”

(folio 17.) ;

Upon this state of facts the Court of Claims held the

claimant estopped to pursue his demand; because after

preselting his account therefor to the Postmaster Gen-

eral, and being informed by him that if it was pressed —

it would be at his expense, having the benefit of a

certain other arrangement with the Government cur-

3

tailed, he apparently abandoned his account so pre-

sented, and went on to reap those other benefits in full;

the effect of this conduct not being removed by the

fact that, by personal interviews and by exhibiting doc-

uments to prove its justice, he “pressed” such claim

before the Second Assistant.

Before proceeding further, I desire to notice what

seems to be an inadvertency in the findings of the Court

of Claims in respect to the compensation to whicb, if to

anything, the claimant is entitled.

The claimant filed, along with his petition, anaccount,

claiming at the rate of $300 per day for 117 days, or in all

$35,100, (page 8, top.) The court find that he was en-

gaged for only 100 days, (page 8, middle,) yet assess for

him the same aggregate amount of compensation, 7. ¢.,

$51 more per day than he had asked.

But this is not all that may be said upon this finding:

for the act of 1825, ch. 64, sec. 43, (4 Stat., 114,) pro-

vides that “no additional compensation shall be allowed

to exceed the exact proportion of the original amount

to the additional duties required.” This rule enters into

the original contracts made by persons carrying the

mail, and they are therefore to be taken to have agreed

to do such additional service at that rate, and, therefore,

it binds them not only before the Department, but in the

courts. Now, the findings do not state the exact amount

of the additional service in this case, but the petition

states and makes claim for an amount of service which

must be assumed here to be the extreme limit of what

actually was done.

On folio 8 (bottom) the petition sets forth that the

claimant ran during the entire time not less than ten extra

4

coaches per week. He does not say that ten were all; but

that the extra number was at least ten. In his favor I

will assume it to have been ten. The court finds (folio

14, near end) that under his regular contract he ran one

coach daily. For such daily service, 7%. ¢., seven coaches

per week, he received (folio 16) $45,159 perannum. The

simple question, therefore, is as follows, (supposing the

claimant entitled to recover at all:) If seven coaches

per week are worth $45,159 per annum, what are ten

coaches per week worth for 100 days? The answer is

$17,674.75, which, therefore, is the largest amount to

which, by his own statement, the claimant can be en-

titled.

The case states that the claimant presented his ae-

count to the Postmaster-General. This:account seems to

have reniained there. There is no statement that it was

withdrawn, aud certainly the disposition of the Post-

master-General toward it shows plainly that it was not

referred to any other officer.

In this state of things personal interviews with the

Second Assistant, even together with an exhibition of

documents in proof of his claim, did not amount to a tech-

nical pressing thereof: even admitting that after being

notified of the views of the chief officer of the Depart-

ment in that connection he could evade their operation

by thus, *“‘ without observation,” going before a sv bordi-

nate.

It does not appear that the claimant presented any

account to the Second Assistant as a basis for his inter-

view, or for rendering his documentary evidence perti-

nent in point of business. It seems that uo amount of

personal interviews, or of mere evidence, in the absence

FR ae lead cee CR TS et ee ne re

6

of an account in writing, would have justified the Post-

master-General (had he known of it) in treating the

claimant as having, contrary to his own intimation,

pressed’ his claim before the Second Assistant, and so

forfeited his improved compensation.

If the Second Assistant were the proper often: to pass

upon the compensation for “‘ additional service,” which

does not appear, he could not have acted without a

case being regularly presented by an account in writing.

A party does not press aclaim in court by going into

the court-room and holding personal interviews with the

judge about it, and showing him his titles, unless a suit

has been entered; and something analogous is required

in the Departments, and is not shown-to have existed

here. ae |

Inconsequential talk about claims upon the Govern-

ment, accompanied, no doubt, frequently by ‘“ docu-

ments” in proof thereof, is quite common in the Depart-

ments. The only suit brought was that before the Post-

master-General, where the account was presented, and .

upon an unfavorable intimation (above) ceased to be

' pressed, and was abandoned.

It appears, then, that with views best known to him-

_ self, and which cannot be properly weighed at thiS

distance of time, the claimant, after fair notice, made

election between the two alternatives (one being a “‘bird

in the hand”) presented to him by the Postmaster-Gen-

eral, and that he has had the benefit thereof; it seems,

then, that he cannot new elect anew, as it is impossible

to restore the United States to the statu quo.

S. F. PHILLIPS,

Solicitor-General.

-~

od

.

og

ground that it was costing hima great deal of money.

I then came to the conclusion to pay more attention to mu

weekly stipend for services in the case than to look for

any income from the patents.

Q. 63. How long after he spoke did you continue to

receive your weekly stipend ?

A. From one to two months, I think ; possibly

more. '

Q). 64. Why did the fact that he spoke of discon-

tinuing the suits under the patents induce you to de-

termine to depend on your weekly stipend thereafter ?

A. Because, as [ answered before, I attached more

value to my weekly stipend than I did to my interest

in the patents.

Q. 65. tlow did Mr. Herr’s ele ng of discontinu-

ing those suits cause this effect upon your mind as to

the value of those patents as a dependence ?

A. Because he had the means under his manage-

ment to carry those suits to an end, and: the other

co-owners were unable or unwilling.

Q. 66. Why do you think they were unable or un-

willing ?

A. Because they stated so.

Q). 75. If, then, you and he, (A. H. Herr,) continued

on speaking terms. down to the day of hearing, will

you explain to me why you did not ask iim or learn

trom him why the suits on the patents ia which you

were an equitable co-owner were discontinued ?

A. I suppose because I did not attach sufficient im-

portance to them, for one reason; another reason was

that I did not care to converse with him, knowing

that he never liked me.

Q. 76. Why did you not attach sufficient import-

ance to them?

A. Because I thought that he had lost interest in

it, and | did not think we would find anybody else to

advance.the money to carry them on.

Q. 77. What was the amount of your interest in

10

these patents, and what was the consideration for the

deed of trust made to Mr. Herr?

A. I think my interest was one-eighth in eonwl;

The consideration for the trust, if I remember right,

was $250.

Testimony of A. H. Herr, record, p. 28.

Q. 99. Why did you terminate or desire to termi-

nate his, A. L. Merriman’s relations, in view of your

other patents, of which you and your associates were

the owners ?

A. IThad lost faith; and did not intend, so faras I

- concerned, to prosecute the matter any further.

2. 100. What made you lose faith at that time or

bx pathy ?

A. I was advised by these legal gentlemen to

abandon the suits, and I was advised by H. B.

Renwick, of New York.

©. 49 What became of that association—(the asso-

ciation under the Welch, Reynolds & Wheeler patents;)

give the history of its rise and progress?

A. It fell through; there was never any money

made under that patent, except $1,000 from Jones

& Company of New York; this was under the Welch,

and all the patents that our association owned; chat

was all the money ever received by that association -

I was the treasurer: had a number of meetings.

Q. 47. Why did the association fall through 9

A. Because we made no progress. We brought

those suits referred to, but they were never tried, and

there seemed to be no partic ‘ular necessity of calling.

together.

Q. 49, Calling whom together

A. These parties.

Q 49. What particular member or officer of -the

association had charze and conduct of those suits ?

A. We were all consulted whenever there was a

move made. Mr. James 8. Welch, Mr. J. A. Maloney

il

and Judge A. L. Merriman visited St. Louis at the

holding of a meeting there by the millers’ association.

Before “they left, [told them not to bring a suit. They

went out for the purpose of meeting the millers and

talking the matter over with them; and about the .

last word I said to them was, for God’s sake not to

bring any suits. |

(). 50. Who had charge of the bringing of those

suits aud the management, and who furnished the

funds with which to commence and prosecute them ?

A. They went out, as I stated, and they brought

suits contrary’ to my personal wish. I had but a

single vote in the company. They brought suits

against Stannard & Co., a’ d then they returned via

Rochester, and brought two suits there against my

express protest.

(Mr. Mason objects to this course ase ss

as being entirely irrelevant to this inquiry, and a

calling upon the witness to testify concerning that

which counsel have no right to inquire. )

Q. 57. What became of these suits that were insti-

tuted ?

A. They were dismissed by authority of all the

parties concerned. I think I have a writing to that

ect.

Q. 58. Will you please produce the writing referred

to in your last answer ?

A. I will. |

Q. 59. Why was that writing entered into, and why

were the suits discontinued ?

A. Because we looked upon them as hopeless.

Q). 60. What a 70 come to the conclusion that

they were hopeless?

A. We were advised so by our counsel. I think I

have a writing to that effect at home; I am not sure.

Q. 61° 9 ho was your counsel ?

A. One was Judge Merriman.

(). 62. Please state the names of the other counsel ?

Ae) Se Paps iol helene oe a ee

—

ke

A. Mr. Walter D. Davidge ; and H. B. Renwick, a

very prominent expert in patents, of New York, also

advised me.

Q. 64. Will you please produce those letters con-

taining the opinions to which you have referred ?

A. I do not think I have the letters, so far as Mr.

Davidge and Mr. Renwick are concerned. I think I

have Judge Merriman’s opinion In writing.

Mr. Harpinc. Please produce Judge Merriman’s

opinion.

Witness. I am not positive as to that; so many

papers have passed through my hands that I cannot

recollect.

Q. 65. Did you abandon your purpose of making a

permanent organization, in consequence of these

opinions ?

A. That organization was permitted to die out; I

_ cannot assign any particular reason but because we

were not successful.

Record, page 24, Merriman’s Letter to Herr.

WASHINGTON, Aug. 24,.1876.

A. H. Herr: :

Dear Sir: In the matter of the suits brought by

Herr, Welch and others against sundry parties on the

Wheeler and Reynolds and E. P. Welch patents, some

of which have been withdrawn and others are now

pending, I have advised such withdrawal, and advise

the withdrawal of the suits still pending.

Respectfully, &c.,

A. L. MERRIMAN.

We fully concur in the above. and authorize yon to

withdraw all the suits now pending.

JAMES H. WELCH.

ROSIA W. WELCH.

Kk. P. WELCH.

Record, page 62.

Jas. S. WELCH. :

4

~f-~

—

-

aa oe od bon ct anendene ami ee deena aed idee "

A. L. Merriman, attorney for Herr and Welch,

record, page 146.

Q. 24. You had had charge of the Welch patents

as counsel, under a salary, for some time previous,

had you not?

A. Yes; up to some time in the summer of 1876.

I do not recollect the exact time when I quit.

Q. 25. Was your salary discontinued then ?

A. Yes.

Q. 26. Do you know why it was discontinued ?

A. Yes; I suppose I know the reason, They con-

cluded to drop all proceedings under those patents, and

consequently did not want any counsel.

A. H. Herr owned a mill at Georgetown, with 9 run

of stone, and by an indenture of lease dated July 12,

1875, he leased to Josiah W. Deener, Geo. W. Cissell,

James H. Welch, R. W. Welch, EK. P. Welch and

Austin Herr, the appellants, his mill.

J. S. Welch also owned a neighboring mill, at

Georgetown, with 14 run of stones, and he leased his

mill to the appellants, also, about the same time.

It was fully understood between the respective

lessors and lessees that the lessors would indemnify

the lessees against loss or Gamage by reason of the in-

terference by injunction or by a recovery of Cochran

and his associates under the Cochrane re-issue patent.

A. H. Herr, record p. 18.

Q. 2. Were you the owner of certain mills, or part

owner of certain mills, leased to Deener, Cissel &

Welch. the defendants in the suit of Cochrane ef ad. vs.

Cissel e¢ al.? 7

A. I was the sole owner of the Pioneer Mills, leased

to Deener. Cissell & Welch.

14

Q. 5. The last named parties were the defendants

in the suit of Cochrane eé al. vs. Deener et al., were

they not ?

A. Yes, sir.

Q.4. What was the extent of those mills, and hice

many were there ?

A. I had nine run of burrs—six on wheat, and the

rest were generally used on middlings.

Q. 5. How many run of stone in all did the defend-

ants in the suit of Cochrane et al. vs. Denver et al.

run ? 7

A. The other mill, I believe has fourteen run—that

is, the mill belonging to Mr. James S. Welch, called

the Columbia Mill; that is, fourteen run, all told.

©. 8. What is the entire number of run of stones

which the defendants in the suit of Cochrane et al. vs.

Deener ef al. were running? |

A. That would be 25—14 and 9—to the best of

my knowledge. lL am not perfectly sure as to the

Columbia Mills. I speak with positiveness as to my

own. ‘There are nine in my own, and [ think four-

teen in the other.

Q. 9. Who owns the mill which had the 14 run of

stone in it?

A. James S. Welch.

@. 10. Did he lease that mill to the defendants ?

A. Solunderstand. Ihave no personal knowledge;

that is, | never saw the lease.

Q. 12. Did you at any time have an understanding,

or did Mr. Welch have an understanding, to your

knowl dge, to guarantee them against loss by reason

of infringement of the Cochrane patent ?

A. When this suit was brought of course the question

same up as to who was liable, and I felt myself bound

to defend them, having leased the property in good

faith, including all the machinery which is claimed to

be infringed.

>

Q. 15. Did Mr. J. S. Welch have an agreement of

the same kind, to your knowledge?

A. Mr. J. S. Welch agreed with me after talking

the matter over,

2. 14. State to what effect?

A. We were to defend thai suit.

The appellees regarded the danger of an injunc-

tion, and the risk of claim for damages in the suit of

Cochrane vs. Deener, to be most serious, and they

looked te Herr for indemnity.

Cissell, rec. p. 84.

Q. 13. Who had the raising of the money to pay

the counsel ?

A. 1 do not know; I suppose Mr. Herr did; he

seemec to be the moneyed man

(). 14. Did you know that if the suit was decided

against you an injunction migat possibly be awarded ?

A. Yes, sir.

Q.15 Did this annoy you?

A. He spoke to me about what we would do, and I

told him that I did not think Deener, Cissell & Welsh

had anything to do with it; that I thought Herr and

Welch had to protect our interest. I told him if he

did not only protect it, that Deener, Cissell & Welch

would not sue him for whatever judgment would be

against us, but also for damages. |

Q. 16. Would it have been a serious damage if your

milis had been stopped under the injunction ?

A. o sir.

Q. 17. Can you give me any idea of the amount of

the damage ?

A. Our expenses for running those two mills were

pretty heavy ; we were paying $18,000 a year rent,

and about $4000 water rent besides—making about

22,000 that we paid for the use of the mills, without

anything else.

16

Q. 18. This flour made under this patent prone

stands high in the market, docs it not ¢

A. Yes, sir.

Q. 19. Has your flour a great reputation here?

A. Yes, sir; I believe it has.

QM. 20. Would it not have been. a serious embarass-

ment or loss to you if you could not have made that

orade of flour?

A. Yes, sir; I should think it would.

Q. 21. When you called Mr. Herr’s attention to the

subject of the injunction, what did he say ?

A. He said of course he would protect our interest ;

that he did not intend it should cost us anything; that

he would do all that could be done, and not only that,

but if there was any judgment against us he would

settle it He said he telt it to be his duty to do it, and

he would do it.

James H. Welch, one of the appellants, record p.

Q. 14. Had you any fear of the result of that suit

(Cochrane vs. Deemer,) I mean of the consequences to

you and damage to the firm ?

A. Yes; we were very apprehensive about it at one

time.

Q. 15. To whom did you look in case it had gone

against you?

A. We expected my father to be responsible to the

firm of Deener, Cissell & Welch for any damages that

might accrue from loss In the suit. 7

Q. 16 Was your father in partnership with Mr.

Herr ?

A. No, sir; not at that time.

Q. 17. There were two mills you were running at

that time, one owned by Mr. Herr and one by your

father, Mr. James S. Welch ?

A. Yes, sir.

Q. 18. And then you looked to Mr. Herr and your

father to incemnify you in the respective mills in case

17

you had been enjoined, and had_ suffered loss by

damage, did you? 5

A. Yes, sir.

Q. 19. Would the injunction have been, a serious

inconvenience to you if the mill had been stopped

from the use of this process ?

Yes, sir.

E. P. Welch,

Q. 9. Who "a charge of the defence of the suit.

Cochrane ws. Deener?

A. Mr. A. H. Herr. |

Q. 10. Did vou regard Mr. Herr as indemnifying

you against loss or di amage by reason of losing the suit

Cochrane vs. Deener, so far as the Herr mill was

concerned ?

A. Yes, sir.

Q. 11. Did any of the defendants furnish any money

to defend the suit?

A. No; Mr. Herr eee se it all.

R. W. Welch, record p.

Q. 27. Would it have been a serious inconvenience

to you if your mills had been stopped ?

A. I should think so.

(). 28. Give me some idea of how much inconveni-

ence it would have been ?

A. Do you mean to stop them permanently ?

. ZY. Yes; to stop the use of that process appa-

ratus at your mills?

A. It would have been a loss sittinlion to the

pacity. : : |

Q. 50. Can you give me some idea, if an injunction

had been granted against the purifying process, how

far it would have affected you ?

A. I cannot exactly understand the question.

@. 51. If an injunction had been granted against

you in the winter of 1877—January, 1877, we will

say—

18

The Wrrvygss, (interrupting.) What loss would we

— sustained ?

). 32. Yes; suppose your mill had been stopped

ice the use of this process ?

A. Having a demand for all the flour we can turn

out, if it had been stopped a month we would have

lost 5000 barrels of flour. |

Herr’s anxiety for the settlement and his relief after

it was made

A. H. Herr, record, page 54.

Q. 360. Will you say that you felt no anxiety before

you made that se ttlement about the possibility of the

mill being stopped by injuaction, and you having

heavy dainages to pa y?

A. Of course I felt anxious about it.

Q. 565. What trouble did you expect to have from

an unfavorable decision privr to making this settle-

ment ?

A. I expected my mill might be stopped. I had

no experience in matters of that sort.

Q. 566. Was that the principal weight upon your

mind—your mill being stopped rf the suit went against

you—prior to making.this settlement.

A. And the loss that I might sustain by stoppage

of our manufacture of flour.

Q. 367. Do you not think that the reason of the

mill being stopped and the loss incident to the stop-

page would be calculated to make a man feel very

anxious about the result of his suit?

A. Yes; it would make a man teel anxious.

Q. 568. Do you not think the question of the stop-

page of a mans mill would make him feel very

anxious ?

A. I admit that.

Q. 371. When you went to see Mr. Cox and talked

to him, was it in the hope that you would get rid of

that danger? :

Pa

19

That was my object.

Q. 373. But that was your main motive In adjust-

ing this case ?

& In calling Upon him ?

(). 374. After you left him, the only risk you had

was $500 in the matter, was it not, as you understood

it 7 ) ;

A. Yes, sir; that is about all. |

Q). 355. You were quite desirous of getting this

thing off your mind. were you not?

(Objec ted to by Mr. Mason, as leading.)

A. Yes; I admit that that is very nm: atural.

Q. 354. ‘eed you felt freer and easier in mind, did

you not. after you had made this arrangement with

Mr. Cox ?

(Objected to by Mr. Mason, as tending to confuse

the record as to which party is testifying, Mr. Harding

or Mr. Herr.)

Avid aid:

Q. 357. Did you or not feel less interested in the

case, and in the preparation of it and its result, after

this settlement, than vou did before ?

A. What settlement do you refer to?

Q. 358. I mean the settlement with Mr. Cox, by

which you were to pay $250 cash yourself, and $250

in a note, if you were beaten ?

A. If I remember right, all the counsel had been

engaged, and there was no further necessity for the

expenditure of money.

Q. 359. Ido not ask you about the expenditure of

money; [ ask you about your interest, whether you

felt more or less anxiety and interest after that settle-

ment than you did before ?

J suppose I felt less anxiety, but it was a matter of

business and disposed of, and I cannot say that I have

any particular re collection.

Q. 314. You have attained a high reputation for

. flour here, have you not?

hietedilidnies biaile Minsbiades Mane des ane ea sigs " ( .

Keep ay hi eT ee Wyle GS a we RE

20 .

A. Yes. |

Q. 315. Are you not very desirous of maintaining

A. Yes, that is true. | |

Q. 316. It has been the result of years of devotion

to all the improvements, has it not?

A. Yes, sir.

Q. 317. Were you not afraid if this case (Cochrane

vs. Deener) had gone in favor of the plaintiffs in the

Supreme Court on appeal that you might be [stopped

by an injunction ?

A. Atter the agreement had been made?

Q. 318. No; before the agreement was made?

A. That would have been a natural consequence, I

reckon.

Q. 319. Do you not know that you feared it?

A. Yes, sir, I feared it.

Q. 324. But after you had made the agreement

to compensation, were you not then assured that no

injunction could issue ?

A. Of course I was.

Q. 525. Was not that a great relief to your mind?

A. Yes, certainly it was. Record p. 49.

Cireumstances under which settlement was made.

Mr. Mason at the outset notified defendants if they

would hurry up the case they should be liberally

treated. Mason, record, p. 133: “I did say this, I

think, some time after the suit was commenced, that

if the case was expedited without being unnecessarily

delayed, I would deal fairly or liberally.” |

Accordingly the case was prepared with unwonted

speed. ‘The answer was filed sixty days before it was

due under the rules, the replication being filed at

once, the taking of testimony was entered upon and

rh

closed so that the case was heard and decided in

scarcely six months from the filing of the bill.

The principal testimony was taken by Mr. Maloney,

who was only at the time a student, and was compen-

sated at the rate cf $20 a week. He cross-examined

the expert, Edward S. Renwick; also examined the

defendant’s expert. Crawford, and one of the co-

plaintiffs, Warder.

Preparation of case of Cochrane vs. Deener, Maloney,

rec. p. |

Q. 50. What witnesses did you examine in that case

ot Cochrane et al. vs. Deener et a/.?

A. I cross-examined Edward 38. Renwick.

(). 31. Is that all the witness you examined ?

A. I examined Newton S. Crawford, the greater

portion of his testimony, and William Warder; and 1

also attended the examination of Warder and Ross

Mitchell, and I will add Rosia W. Welch.

Q. 32. Did you receive any compensation for those

services ? :

A. My compensation was general; for general ser-

vices, :

Q. 35. What was the compensation ?

A. In the neighborhood of $900 a year.

QJ. 54. Who paid you that compensation ?

A i: Ta. Bere.

(). 59. How long did he continue to pay you that

compensation ; between what times ?

A. I think from the re-issue of the Wheeler and

Reynolds’ patent. up to the date of hearing in the Su-

preme Court of the District of Columbia. -

Q. 15. You were asked what relation you had to the

suit of Coclirane ef a/. vs. Deener ef a/.; did you not act

as attorney, solicitor, or counsel in connection witb

that suit?

Si PRT eae UNE ELEY NN ERR

Fe ee ee rile 6 er a

spt

dut

one

-)*)

—_

4. 1 did not act as attorney» fo" the reason that [had

not then been admitted to the bar.

(), 17. In what capacity did you examine the wit-

9 ¢

nesses -

A. Of the patents before mentioned.

Q. 19. W hen did you become an attorney *

a, (think the 16th day of May; 1876, or there-

abouts.

It is not remarkable that the appellants should be

»

anxious 0 have for their test cage, & CARS thus

prepared.

After the ease was closed, and betore final hearing

in the Court below, a5 follows: Qer ; h iy

Mr. Mason prepared this pave{ and induced defend-

ants counsel to sign it, and also aused it to be signed

by Mr. Cox. Although pelonging the Court below,

and drawn UP before there was any appeal in exist

ence, it Wa retained by complainants counsel until

the appeal was made, and then fled in the Supreme

Court.

Mr. Davidge ‘ysisted of the necessity of an oral

argument in the Supreme Court. |

Mr. Hert ealled on Mr. Cox and told him that the

defendants were not willing; under Davidge 5 advice,

that the cast on appeal should be argued 10 writing;

and then made 4 proposition to Mr. Cox for proving

the patent.

Q. 128. Did you state to Mr. Cochrane oF any of

the plaintifls in that suit, oF their counse? that you

were disposed , under the advice of Mr. Davidge, © have

an oral argument of the case ?

*

~

A Yes, sir; I did. I had that conversation with

one of the parties.

Q. 129. ‘To which one of the parties did you state

that the defendants were disposed to have an oral

argument in the Supreme Court, under the advice of

Mr. Davidge ?

Ae Mr. Walter S. Cox, I think.

Q@. 150. What did Mr. Cox say to you?

A. Heexpressed to me his determination to enforce

the stipulation.

Q. 131. Did you ever apply to Mr. Cox to pool

your patents and his?

A. I did mention the matter to him.

(). 156. In case the patents were pooled, did you

vive him to understand that you would go ahead and

try to break the Cochrane patent ?

My adea was. that he would. withdraw the suit—

x rie

—

+

Mennadasienasnessenetecnaiaa 5A terdidnaesitieedstameanttnded nets Lan REN et tera ghiata pete ed me Pate oR ee

98 RECTAL ILE HELE eT

A. I did not act as attorney, for the reason that Lhad

not then been admitted to the bar.

Q. 17. In what capacity did you examine the wit-

nesses ?

A. As aco-owner.

®. 18. Co-owner of what ?

A. Of the patents before mentioned.

(. 19. When did you become an attorney ?

A. | think on the ‘16th day of May, 1876, or there-

abouts.

It is not remarkable that the appellants should be

anxious to have for their test case, a case thus

prepared. |

After the case was closed, oy vat: final hearing

in the Court drrenaine as follows: [Rex | Oe otuchihs)

aT ae ee

Wu. F. Cocurane eft al., )

nS. In Equity, No. 4701.

J. W. DEENER et al.

Whereas, as it now appears to both the respective parties

to be to their interest, that the final decision of this case

should be expedited as much as possible; now, therefore,

they do mutually agree each tor themselves, to do whatever

can be done to expedite the conclusions of the case. That

trom the final decree of the Supreme (‘ourt of the District of

Coluinbia, the deteated party will appeal to the first ensuing

term of the Supreme Court of the United States, or be con-

sidered as finally waiving the right to appeal, and that the

ease shall be submitted im the latter court on printed argcu- :

ments under the rule.

Executed April &, 1876.

(Signed) WALTER 8. Cox,

Solicitor for Complainants,

A. L. Merriman,

Solicitor for Defendants.

PRA.

A Yes, sir; I did. I had that conversation with

one of the parties.

Q. 129. To which one of the parties did you state

that the defendants were disposed to have an oral

argument in the Supreme Court, under the advice of

Mr. Davidge ?

A. To Mr. Walter S. Cox, I think.

@. 150. What did Mr. Cox say to you?

A. Heexpressed to me his determination to enforce

the stipulation.

(J. 131. Did you ever apply to Mr. Cox to pool

your patents and his?

A. I did mention the matter to him.

(). 156. In case the patents were pooled, did you

vive him to understand that you would go ahead and

try to break 9 Cochrane patent ?

A. My idea was that he would withdraw the suit—

would not iow it to come to a decision, and, in that

case, | was in hopes we would derive some benefit ;

but he refused peremptorily to make any conditions,

Q. 157. Did he state any reason for refusing?

A. Yes, sir; I think I. gave that in a paper that

can be produced. |

Q. 158. Please state the reasons that he gave you ?

A. If there was any taint discovered by the Su-

preme Court of the United States—this may not be in

lis language—if there was any taint discovered, or

any collusion, the case would be dismissed; con-

sequently he would not hear to any proposition, except

to have the case tried in a fair and square manner;

and I will say that on several occasions he told me to

employ the best counsel IF could.

By Mr. HArpING :

(). 142. What did you say to Mr. Cox when he

made the remark about the Supreme Gea and the

tainting?

A. L asked him what he was going to charge me.

A. | asked Mr. Cox what he was going to charge if

LE A NA OS OG AOL ION LE EARL NS COE

ioe) 6 shad 7", Ag 4 . ial

24

the case should go against us—-Deener, Cissell &

Welch.

Q. 143. What did Mr. Cox say ?

A. He stated that his object was not to be excessive

in his charge; he thought $2500; I talked the matter

over with him some time, and he finally agreed to

take SLOOO for the two mills—the Pioneer Mill, be-

longing to myself, and the Columbia Mill, belonging

to Mr. Welch: that is to siy, $500 for each mill, $2 50

cash and $220 in twelve months. and we so settled after

the termination of the decision. :

154. Did Mr. Walter 8S. Cox sign any paper set-

ting forth this agreement ?

A. He peremptorily refused to do so.

155. Did you ask him to do it ?

A. I aid.

Q. 156. Why did you want it?

A. For the simple reason that I wanted to be forti-

fied in the event of his death, or something of that

er , :

. 157. Why did he peremptorily refuse to sign

ths at paper setting forth the agreement.

A. I do not remember that he assigned any particu-

lar reason, but he refused.

158. Try to remember.

A. I do not think he gave any particular reason.

(). 159. If he gave any reason in general ?

A. I inferred—if you wish me to state that—

(Mr. Mason objects to witness stating inferences.)

Mr. Harpinc. Go on and state what you under-

stood to be his reason.

A. | inferred that his reasons were that he wanted

to do nothing tant — In any way taint the case.

Q. 203. Then after you repor ted thé agreement

that you had made to the parties, did you, at the

same time, or about that period, give your opinion also

as to their moral obligation to submit it on a printed

brief?

25

A. I contended that we had gone into that matter.

And let me here state that I did not approve of that

stipulation in the first instance, and that I was the last

to give adhesion to it. Then, after it was done, I told

him I thought we were morally bound to carry it out,

and I would not be accountable for the consequence,

at least, if we attempted to have it argued orally and

failed.

Q. 204. After you had reported this conversation

about the settlement and the arrangements you had

made, did the parties agree that the case should be

argued on printed argument, and sign a paper to that —

effect ?

A. I think so.

Hie then proceeds to engage Mr. Merriman, and

instructs hini to make an oral argument.

Q. 209. Did you tell your counsel, after you had

had this agreement or written paper about the oral

arguments, the conclusion the defendants had come to?

A. Oh, yes.

Q. 210. Whom did you tell? |

A. I told Judge Merriman, and re-engaged him.

Q). 211. You re-engaged him then?

A yea, wr. *

Q. 212. Then it was that you agreed to pay him the

$100, was it?

Mr. Welch still insisted that Mr. Davidge should

make an argument, but Mr. Herr was unwilling.

(). 48. Were you present at any consultation where

it was determined not to make an oral argument in

the case of Cochrane ef al. vs. Deener e¢ al., in the Su-

preme Court of the United States?

A. Yes, sir, | was, upon one occasion when Judge

Merriman and Mr. Herr met at my father’s house, and

he said that the counsel had agreed among themselves

to put the case before the Court on printed briefs.

a

49 Do you know anything about your father

or you desiring Mr. Davidge to take part in the argu-

ment in this case ?

A. Yes, sir.

Q. 50. What do you know on that subject ?

A. Well, my father requested me to see Mr. Herr

and say to him that if he would retain Mr. Davidge,

and let him argue the case oraily before the Supreme

Court of the United States, he would pay one-half of

his fee.

Q. 51. Did you understand how much Mr. Davidge’s

fee was?

A. $1000, I think.

The decision of the Supreme Court was rendered

March 19, 1877, and on the 4th of April the money

and note was given, and two receipts and licenses

were delivered; of one of which the following is a

copy :

Q. 160. When did you pay the $250 cash, and give

the note? |

A. [have got a receipt at home. I will bring that.

Record, p.

COCHRANE et al.

DS,

DEENER, CISSELL, e¢ al. |

Received of A. H. Herr, Esq., two hundred and

fifty dollars and his note for $250, at one year, being

par ‘t of the sum of one thousand dollars agreed to be paid

in settlement of the above cause. The said settle-

ment includes the privilege of using the invention

claimed by the complainants during the continuance

of their patents in the Pioneer Mill, in Georgetown.

WALTER 8S. COX,

President American Middlings Purifier Co.

=

Apri 4, 1877.

—

rs ooo PRR Ie aepige, Mite tenn

mm,

*

eG OaE DN PGA LEROY ED SA

ee te

i

:

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27

Q. 170. Did Mr. Welch get a similar receipt or agreement,

or did you get one for him ?

A. He got a similar one to mine.

Q. 171. Did he call with you on Mr. Cox ?

A. No, sir.

Q. 172. Did you not eall and ask for a paper of this kind,

of Mr. Cox, and tender to him the money ?

A. It happened about that time.

A. H. Herr’s individual interest in the Welch, Reynolds &

Wheeler’s patents was only nominal, at the time of settlement. |

A. H. Herr, who made the settlement. states his individual

Feelings as to his interest in the Welch, Wheeler & Reynolds’

patents.

A. H. Herr, Record, p. 19:

Q. 22. Did you not own some portion of the patents set

up in the defendants’ answer in the suit of Cochrane ef al. v.

Deener et al., to wit: The — of Jesse B. Wheeler, April

14, 1863, re-isstied February 23, 1875, No. 6,307; the patent.

of Ransom 8. Reynolds, re-issued March 30, 1875, No. 6,361,

and the letters-patent of Edwin P. Welch, No. 13,593, re-is-

sued April 1, 1873, No. 5,546 ?

A. [held an assignment of one of my sons who held an

interest, and who assigned that interest as an inducement

and compensation to me pecuniarily. The understanding was

that just as soon as I was reimbursed, the interest was to revert

hack to him.

Q. 23. What interest did you hold, and what was your

son’s name 7

A. My son’s name is Austin Herr; the interest I really can-

not tell you, without looking to the Paper ; it was x or or .

something of that sort.

It does not appear that Herr had advanced any money

except one-half of the salary of A. L. Merriman & Co., jeer

nine hundred dollars, and he had received from Jones & Co.

one thousand dollars only as license fee.

a

16?

28

Herr, Record, p. —:

Cross-Q. 335. I will re-state my question: What amount

of money, if any, had you made out of the Welch patents,

before the suit of Cochrane e al. v. Deener et al. was com-

menced ?

A. Do you mean for licenses ?

Cross-Q. 336. Yes.

A. One thousand dollars is all we ever received. I was

not in the interest of those patents, at least not concerned

with the young gentlemen, until some time after they had

made a considerable amount, | :

Mr. Herr maintained profound secrecy to all the other

Welchs, and especially to his eounsel, as to the settlement.

A. L. Merriman, Record, p. 147:

Q. 17. When did you first hear that Mr. Herr had an un-

derstanding with Mr. Cox in connection with this case ?

A. I never heard that he had any arrangement with Mr.

Cox. |

(). 18. Did you ever hear upon what terms or in what way

that suit was settled finally; I mean the suit of Cochrane ef

al. v. Deneer et al. ?

A. No, sir; I do not know that I ever did.

And yet, by reference to page — of the motion in this

ease, It will be found that the mandate was taken out in this

eourt and the decree formally entered in the court below by

Mr. Merriman’s approval, long after the settlement was

reduced to writing.

Cady, Record, p. 104:

Q. 75. When did you hear that Mr. Herr had entered into

an arrangement with Mr. Cox coneerning the suit ?

A. I never heard of it until since [ have been here to-day,

and I have not heard of it now any further than that one of

the gentlemen in the adjoining room—I think it was Mr.

W elch—-began to tell me something, and I said that I did

not want to know anything about it. I presume that it is the

subject to which you refer.

ee Sa

‘ ener es |

29

A. H. Herr, Record, p. 60:

Q. 408. Did you explain to your counsel, Mr. Merriman

and Mr, Cady, the understanding which you and M. Cox had,

that in case the suit was decided against you, you and Mr.

Welch were to have releases and license, as heretofore stated

by you?

A. [think not. I have no recollection. —

Q. 409. Why did you not tell your counsel of this agree-

ment ? 3 3

A. I saw no necessity of doing so.

‘+ Q. 410. Had you no other reason for not doing so ?

A. None that I can think of at this time.

Q. 418. Do you not think the fact that Mr. Cox declined

to put the agreement in writing when you requested it, and

the reason that he gave you for not doing so, as stated by

you, influenced your mind in not stating that agreement to

your counsel ?

A. I think not. |

Q. 419. Can you state any motive that influenced you in

not informing your counsel ? 7

A. I saw no advantage in making it known to them.

Q. 420. Did you ever tell them, even after the decision in

the case ?

A. I have no recollection that I did.

(). 421. So far as you know, your counsel never heard of

this Agree ment until brought oud bi this ijrve stigation ?

A. That is in accordance with my recollection; IT have no

recollection of ever having told them of if,

The only one of the appellees who admits that Herr told

him of the settlement which had been made with Mr. Cox

before the decision of the Supreme Court was made, was R.

W. Welch, and he regarded it as a favorable adjustment, in

view of the risk to their mills of iniunction.

(Appellee R. W. Welch, p. 112:)

(). 5. What knowledge have vou of the terms of settle-

We Balk 7 Oe Sek Spates Se eae whl PN oo ae :

Sp Nea dE BE Ae eg Tee) x RS MLD OS POOR Se Same

Beh ce emg HE a ele he eae ape

ov)

ment, or of an agreement to settle the case of Cochrane et

al. v. Deener et al. ?

A. Mr. Herr had the entire management of the case, and, I

think, by power of attorney, as well as I recollect, from us,

for a certain consideration—a certain interest in the patent,

and he managed the case himself. He had to spend all the

money, and I understood that both our mills and Mr. Herr’s

had been licensed. I do not exactly recollect the sum, though

I think it was $500 for our mill and the same for Mr. Herr’s

mill,

Q. 6. Under what circumstances did you learn the terms

of this agreement ?

A. I learned them from Mr. Herr.

Q. 7. Wien?

A. I do not recollect exactly the date, but I know it was

before the deeision of the Supreme Court here.

Q. 8. How long before ?

A. Probably two or three months.

(). 9. What did he say to you ?

A. He said that our two mills would cost a thousand dol-

lars for a settlement.

@. 10, Did he say they had been licensed ?

A. I understood that they were licensed. Yes, sir.

Q. 11. He told you that they were licensed, did he ?

A: Yes. SIT.

Q. 12. Did he tell you how he came to make this agree-

ment ?

A. I do not recollect that he did. |

Q. 13. Did he tell you why the other side had agreed

to it? | |

A. My understanding of it was that the matter would go

on, on a brief, in order to reach a quick decision. » I think

that was the arrangement that was made.

* * ‘ . * (Record, p. 114:)

Q. 23. Did not Mr. Herr tell you at the time he told you

that part of the money was to be paid by note ?

A. No, sir; he did not say anything about the conditions |

Qasr eee eee

- ae ee

31

of the settlement at all, as to how it was settled, but that it

was settled.

Q. 24. After he told you that, you did not feel any more

care about it, did you?

A. No, sir; I did not. | 7

J. 25. It relieved your mind of all care and anxiety on the

subject ?

A. It did.

Manner of Preparing Argument by Appellees.

(Cady, Record, p. 101.)

Q. 45. Did Mr. Merriman give you to understand that

he was only going to discuss the question of jurisdiction ?

A. I so understood him then. I requested him person-

ally to cover the ground of the mechanical patents also, but

he seemed to be disposed to limit himself to the question of

jurisdiction. .

Q. 46. Do you know why he declined to discuss any other

question in his argument ?

A, No; I.do not.

(). 47. Did he ever intimate to you that he was not pe-

cuniarily remunerated for any further discussion ?

A. I think he did intimate to me that he was not remu-

nerated as liberally as he ought to be.

Q. 41. Did Mr. Herr express any solicitude or anxiety

because Mr. Merriman had limited himself to the question

of jurisdiction 7?

A. I do not know that he ever did.

Q. 42. You were present when Mr. Herr and Mr. Mer-

riman was in conference ?

A. Yes, sir.

Q. 43. Was Mr. Merriman’s argument ever read over to

Mr. Herr in your presence ? 2

A. No. I never saw it until it was handed to me after-

wards. I tried to see it several times. |

Q. 83. I think I asked you if you showed your argn-

ment to Mr. Herr at any time during its preparation ?

atikeiak <x

A. I do not think that I did.

a @. 84. You never informed him what points you were

Wi going to discuss ? |

: A. No further than in a general way, speaking as I have

already testified.

Q. 85. The principal information you derived about the

‘ case below and the points there argued was from Mr. Mer-

riman, was it not?

A. And partly from inguiries which I made of Mr. Mason;

I went to Mr. Merriman and learned all I could from him,

and I then went to Mr. Mason; I understood that the argu-

ment of Mr. Davidge below was in the form of notes, and I

tried to get those notes, but never succeeded in doing s0;

Mr. Merriman, I think, said Mr. Mason had them, and Mr.

Mason did not feel that he was called upon to let me have

them; that is my memory.

Q. 86. You say that besides getting information from Mr.

Merriman, you got information from Mr. Mason ?

A. I talked with Mr. Mason in regard to the conduct of

the case below ? ,

(). 122. To whom did you apply for the copy of Mr. Dav-

idge’s argument for the defendant in the court below ?

A. To Judge Merriman and Mr. Mason; I offered to

pay one half of the expenses of the stenographer’s report on

the 17th of October, which offer was declined; Judge Mer-

riman had not the copy of the argument, and therefore I

went to Mr. Mason,

Cady, Record: p. 109.

Q. 116. Did you not agree with Mr. Merriman or refer

to him the discussion of the defense as to the effect of the

prior patent granted to Cogswell & McKiernan ?

A. I recall the fact that I especially desired Judge Merri-

man, in one of our interviews, to cover the ground affected by

the Cogswell & McKiernan transactions, and so left that sub-

ject with him. ;

Q. 117. You never knew whether he had treated of it till

after the filing of the argument ?

A. I did not.

*

5 eye 5

Sk. tee eee 0a 19 ket SAR RAEN ROP UTP

Q. 71. Did anybody say anything to you about the question

of the identity of the original and reissued patents having been

pressed in the court below ?

A. I think that Mr. Merriman said something about that,

and that was one of the matters which I requested him to

cover in his argument. I did not regard that as a point

which I wanted to dwell a great deal upon, as he had had

the case below. I-wanted to dwell more upon this point of

process. |

Q. 72. You mean the question of infringement ?

A. Yes.

Q. 73. Did you notice whether Mr. Merriman’s argument

treated this question of surrender and reissue or not ¢

A. After it was filed I noticed that it did not.

Q. 74. Then you did not know what he had treated of

until after that ?

A. I tried a number of times to see his argument before

it was finally submitted, but did not get to see it.

Q. 109. When did you first see the appellants’ points in

this case ? ee :

A. On the day when they were filed.

Q. 110. When did you first see your colleague’s argument

in this case ?

A. The same day.

@. 111. That is, the day it was filed.

A. Yes, sir.

Q. 112.. Had you previously made requests, and endeav-

ored to see your colleague’s argument ?

A. Thad; I find that [ had made an entry on the 31st of

October, “Saw Judge Merriman as to argument, and pro-

posed reading that of each to the other.”

@. 113. That was never done, was it ?

A. Never.

Q. 114. The arguments wére not prepared at that time,

were they ?

A. I understood that they were written substantially. I

desired, after hearing all [ could, to make any further addi-

tion to my manuscript which should seem to be proper.

. -

2 TTR cela gat nai oe

2 Fate, Se hlnn abet, n Rap spenes -

*y

>

As soon as this agreement of settlement was made, Mr.

Herr paid no attention to the matter of the argument, but

drove his own counsel to file their arguments at the dictation

of appellants.

A. H. Herr, Record, p. 57:

Q. 394. You have stated that you had the principal con-.

duct of the case, so far as the clients were concerned, in con-

ference with counsel, have you ?

A. Yes.

Q. 395. Were you ever shown the appellants’ arguments

in the Supreme Court of the United States before the appel-

lees’ arguments were filed? -

A. No, sir; I have no recollection of that sort.

@. 396. Your counsel never called your attention to what

had been said on the other side, did they ?

A. No, sir.

* * Record, p. 40:

Q. 226. Did you read his (Cady’s) argument before it was

hled ?

A. No, sir.

Q. 227. Did he ask you to read it?

A. No, sir; I do not remember that he did. The reason

why, I suppose

Q. 228. I do not ask you for your reasons; did you read

Mr. Merriman’s argument.

A. No, sir; it seems that they had not completed their

arguments up to the last moment, and, consequently, it was

not in a condition for me to read, and I never read either of

them until after the trial.

Q. 229. Did you read any portion of their arguments

while they were in progress ? :

A. No, sir.

Q. 230. Did they ask you to?

A. I do not remember that thev did ?-

Cady, Record, p. 102.

A. 61. Did Mr. Herr or the counsel on the other side say

anything to you in reference to the diligence with which you

were to prepare this case ?

A. I think they urged me pretty often to be ready

crowded me some.

(). 62. That is all?

A. That isall._ -

Q. 68. When you say they “crowded” you, what do you

mean ? |

A. They kept urging me for my argument. I was rather

pressed at the time, on occasions, and they crowded me for

my argument, perhaps not unduly, but that is all I meant.

By Mr. Mason:

Q. 97. Do you not remember that for some weeks after the

court met in that year, on account of the absence of attorneys

attending to the political campaign, the court had scarcely

any business to transact, and finally adjourned over until

after the presidential election ?-

A. I recollect in general the fact that there was a want of

attendance to the cases as they were called on the docket, by

reason of their political engagements.

Q. 98. And do you not remember that my reason for

urging you forward with the preparation of your case was, that if

You could get it submitted while the court was thus unemployed,

we would undoubtedly get an early decision in it?

A. I believe you did give that reason. |

Q. 99. And that was because of my anxiety to have the

preparation of the arguments hastened ?

A. I could not swear to that.

Q. 100. Did I not say so?

A. I think you did give that as a reason

Herr, Record, page 56.

Q. 384. At the time von refused to give him (Cady) more

money, did you renew your request to him to be more dili-

gent?

> sis .

* vel Nt a ag ih

“>

o>

A. I did; up to the very last moment. [ told you that

I made about tive or six ‘visits, or perhaps more; and that I

urged them every time to use their best efforts.

Q. 385. Did you repeat that expression to him ?

A. Something of that sort perhaps; that is not the identi-

eal language, but that is what I meant.

(). 386. Did vou think it necessary to keep urging them.

A. Well, for some reason or other they did not get their

arguments up as soon as [ expected, and I urged them to do

SO.

(). 387. Did the counsel on the other side urge you to urge

them, or either of the parties?

A. Yes, sir; they did.

(). 388. What did they say to you? |

A. They wanted me to see that the arguments were at-

tended to.

(). 689. Did they constantly urge you to see that the ar-

guments were attended to?

A. No, not constantly. but several times, however.

After Herr had relieved himself from anxiety about the

suit, he aimed on/y {1o get the argument made in the Supreme

Court as seasonably as possible.

Iferr, Reeord, p. 27:

(). 91. How long after that did you continue to pay him

that money %

A. I cannot tell you; but it was some time before the

arguments were written. Tasked Judge Merriman how tong it

would take him to iopile the OT die nt, and he stated that he thought

he could do it in tivo or three days, (I it HOW referring to his

arqument Ol appeal in the Supre me Court of the United States.)

I said: Now, Judge, suppose I pay you $100; that will be much

better pay than what we have been giving you;” he agreed

to take it.

Merriman thus narrates the discussion as to fees, (Record,

p. 147:)

(). 19. Did no discuss:on, as to remuneration, between you

EE

a

leet exactly.

7

and Mr. Herr, take place at yy time, in connection with the

‘ase in the Supreme Court ?

A. No, sir; not after the first agreement; of course, we

discussed the matter over then a little.

* * * He ~ *

Q. 33. Can you state to me what passed at this discussion ?

Give me some idea as to what request vou made for fees at

the time the discussion took place ?

A. Inamed my fee, and he said he could not afford to

give so much, and stated the reason why, and, finally, we

agreed upon the smallest fee.

Q. 34. What fee did you request ¢

A. My impression is, that [ asked him $300 for writing

an argument, and I do not know but more; I do not recol-

Q. 35. You sav he stated his reason for not giving it to

you. What was the reason ?

(Mr. Mason objects, on the ground that it is not compe-

tent for an attorney to testify to things stated to him by his

client, and the answer to this question may involve private

matters which it is not proper for an attorney to disclose,

nor is he at liberty to disclose them.)

(Mr. Harding says that he declines to proceed further w ith

the examination after this instruction.) —__

(Cross-examination waived by counsel in opposition to the

motion.)

A. L. MERRIMAN.

Herr, Reeord, p. oO:

Q. 383. And when Mr. Cady told you that the case was

bigger than he thought it was, and wanted more money, you

declined to give it to him, did vou not ?

A. Mr. Cady told me that it required more labor than he

expected. I think that is about what he stated, and he inti-

mated, though he did not say directly, that he must have

more compensation, or that he ought to have; but I told

him that he had made his agreement, and [ expected him to

comply with it, and that was the end of it. |

esto hs ae

‘>

e

Herr was to furnish a// the money.

Jas. S. Welch, Record, p. 81:

Q. 35. You understood that the interest which Mr. Herr

had in the patents was to be his pay for furnishing the funds

to carry on the suit ? |

A. Yes, sir; that is my understanding of it.

Q. 36. And you understood that he was to have the say as

to the payment of counsel; did you?

A. Well, he had the paying to do. That was his business.

He got his interest from the Welchs for that.

Geo. W. Cissell, Record, p. 84:

Q. 13. Who had the raising of the money to pay the

counsel ?

A. I do not know; I suppose Mr. Herr did; he seemed to

be the moneyed man.

J. H. Welch, Record, p. 90:

Q. 39. Do you know under what circumstances he got that

three-sixteenths, and what he paid for it ?

A. I do not think he paid any money; I am sure he did

not; it was with the understanding that he should prosecute

all these suits to the Supreme Court of the United States.

Q. 40. Including the suits brought under the Wheeler and

Reynolds patents and the suit of Cochrane et al. v. Deener

et al?

A. Yes, sir.

Q. 41. That was included, was it?

A. ¢ yh, yes.

E. P. Welch, Record, p. 111:

Q. 9. Who had charge of the defense of the suit?

A. Mr. A. H. Herr. |

Q. 10. Did you regard Mr. Herr as indemnifying you

against loss or damage by reason of losing the suit of Coch-

rane ¢. Deener,.so far as the Herr mill was concerned ? |

A. Y es. Sir 3

Q. 11. Did any of the deféndants furnish any money to

defend the suit ? |

A. No; Mr. Herr furnished it all.

None of other appellees, owners of the patent, except R.

W. Welch, were informed of the settlement until after the

decision of the Supreme Court.

Jas. 8. Welch, Record, p. 81:

Q. 42. Did Mr. Herr notify you or inform you in any way:

that he had made an arrangement with Mr. Cox as to pay-

ing a certain sum of money if the case was decided for the

plaintiffs in the Supreme Court of the United States on

appeal ?

A. He did not.

Q. 43. When did you first hear that he had made an ar-

‘angement with Mr. Cox about the amount to be paid ?

A. As well as I can remember, it was about the winding

up of the business here in the Supreme Court of the United

States. |

Q. 44. Do you mean about the time of the decision being

rendered ?

A. Yes; as well as I can remember, that was about the

time, I think; probably after.

Jas. H. Welch, Record, p. 86:

Q. 2. Were you one of the defendants in the suit of

Cochrane ef a/. v. Deener et al.?

A. Yes, sir.

Q. 3. When did you first hear that a settlement had been

made between Mr. Herr and the plaintiffs in that suit, by

which you were to pay a certain sum of money ? |

A. I think it was after the decision of the Supreme Court

of the United States on appeal, as well as my memory serves

— me,

@. 4. How did vou find it out; who told you?

A. I think it came through Mr, Deener, the senior mem-

ber of our concern at that time.

ff 0

SS

E. P. Welch, Record, p. 111.

Q. 2. Were you one of the defendants in the suit of Coch-

rane et al. v. Deener et al. ?

A. I was.

Q. 3. When did you first hear that a settlement had been

agreed upon in case the suit was decided in favor of Coch-

rane on the. appeal in the Supreme Court of the United

States ? :

A. I knew that there was a settlement after the decision

was made in the Supreme Court of the United States, and

not before then.

Q. 4. How did you come to hear of it then ?

A. Mr. Herr told me.

Q. 5. What did he tell you? 7

A. He told me that he had made a settlement for $500 for

his mill, and $500 for my father, Jas. S. Welch’s mill.

Q. 6. Did you take any part in the conduct of the suit of

Cochrane v. Deener? |

A. No.

Geo. W. Cissell, Record, p. 83.

Q. 4. When did you hear that an agreement had been en-

tered into between Mr. Herr and Mr. Cox for the settlement

ot that matter?

A. I cannot say when I heard it; whether it was the time

the money was paid, or whether I heard it before. I do not

think I heard it before the money was to be paid. The way

I knew it then was that we (Deener, Cissell & Welch) ad-

vanced the $250 for Mr. Weleh;: we would have owed him

money on rent, and we advanced the $250 for him.

Q. 5. Did you take any interest or care yourself*in the suit

below or in the court above ?

A. No, sir.

Mr. Cady was not employed to replace Davidge until after

Herr’s settlement with Cox.

A. H. Herr, Record, p. 40.

(). 217. Do you think it was afterwards ?

I reckon 1t was.

ee net

Aff

Herr’s manner of introducing subject to counsel:

Q. 214. Did you say anything to Judge Merriman about

the argument ?

A. After employing Judge Cady, I introduced him to

Judge Merriman, and said: “Now, gentlemen, [I turn the

case over to you; [ want it managed in the best way you

can.”

As to costs of suit, Herr had no knowledge of them whatever.

A. H. Herr, Record, p. 46.

Q. 287. Have you paid the costs of court in this case in

the court below or in the Supreme Court of the United

States 7 |

A. No, sir; I do not remember of ever paying any. .

Q. 288. Has any bill been sent to you for those costs?

A. No, sir; I have no recollection of it.

Q. 289. You never paid it if it has been sent to you?

A. I know that.

Q. 290. Has nothing been said to you about it that you can

recollect ?

A. No, sir; I have not the slightest recollection of a word ever

having been said to me on the subject.

W. Cox, Record, p. 119: |

“There was nothing said about the costs in our agree-

ment.’

W. Cox, Record, p. 122:

Cross-Q. 21. Do you know what that bill of costs amounted

to?

A. My impression is that it was either $270 or three hun-

dred and seventy odd dollars. | |

Cross-Q. 23. The costs were the costs in the Supreme Court

of the United States 7

A. Yes, sir.

* - ; ; * *

He

TH

W. Cox, Record, p. 123:

Cross-Q. 34. Have you ever applied to have the costs taxed

in the Supreme Court of the District of Columbia?

A. No.

Appellee’s arguments were not submitted under the rule of

court,

The rule of this court allows ninety days for the filing of

printed arguments; but after the settlement between Herr

and Cox, everything was progressed with lightning speed.

Mr. Cady’s retainer was actually paid on the 9th of October.

(See his testimony, Record, p. 108, q. 108.)

The appellants filed the copies of records used below in

this court. Mr. Cady prepared and filed his argument before

he saw appellants’ points. The records were filed on 5th of

October, and the stipulation was then filed for first time,

although entitled in suit below, and dated April 8, 1876.

©

435

Exurnit ‘ L.’’

Abstract of Bill filed in the suit of the American Middlings Purifier Com-

pany v. John A, Christian, Cadwalader C. Washburn, and others, in

the Circuit Court of the United States for the District of Minnesota.

Record, p. 178.

Bill sets forth grant of original patent No, 37317, 37318, 37321, to Coch-

rane and others; grant of reissued patent No. 5841; assignment to plain-

tiffs; the charge of infringement; and that William F. Coehrane and

others filed their certain bill of complaint in the Supreme Court of the

District of Columbia against Josiah W. Deener ef al., alleging, among

other things, the infringement of said reissued letters patent No, 5841;

that the defendants appeared and answered in said suit, and in their said

answer denied the allegations of the said bill, and set up in further defense

prior knowledge and use by other than said Cochrane of the invention set

forth and claimed in said reissued letters patent, and that said Cochrane

was not the original and first inventor thereof.

That issue was duly joined on said pleadings, and testimony was taken

at great length by both the complainants and defendants, and that, after

hearing counsel for complainants and defendants, the said court dismissed

the bill.

That thereupon an appeal was taken to the Supreme Court of the United

States, and said appealed cause was argued before said sxppellate court,

and decided at the October Term thereof, 1876. That by decision of said

court, it became res adjudicata; that said Supreme Court of the District

of Columbia, sitting in equity, had jurisdiction of said bill; that said par-

ties complainant were the owners of said reissued letters patent; and fur-

ther, that the defendants therein had infringed the said reissued letters —

patent upon which this suitis brought. That the said reissued letters patent

were good and valid in law, and were not anticipated by any of the

priorities set forth in said answer or in the evidence taken in said cause,

And these complainants aver and charge the fact to be, that the process

used by the defendants herein is substantially the same as that used by the

defendants in the said cause, held, as aforesaid, by the Supreme Court of

the United States to have infringed the reissued letters patent upon which

this suit is brought

And these complainants further pray that the defendant may be enjoined

during the pendency of this suit from such infringement.

That they may be perpetually enjoined from such infringement.

That they may be decreed to pay the costs of this suit.

And that damages to the ameunt of three hundred thousand dollars, to

be assessed as by statute provided, may be adjudged to these complainants

against the defendants for such violation of their said exclusive rights,

and for their infringement, and for other and further relief, may it please

your Honors to grant unto these complainants.

Sworn to by Rodney Mason, May 23d, 1877,

440

Extract from injunction order in above cuse. Record, p.177.

And now, at the general June term, 1877, of this court, holden at Saint

Paul, in said district, their Honors Judges Miller and Nelson presiding, a

motion having been duly made upon notice to the defendants, by the

counsel for the complainant. for a preliminary injunction against the de-

fendant, as prayed in the bill of complaint herein, and having been duly

presented and argued upon the bill and affidavits presented by both plain-

tiff and defendants: |

Now it is ordered that the motion of the complainant herein be, and the

same is hereby granted, and that a preliminary writ of injunctien in this

cause issue out of and under the seal of this court against the detendants in

this action, restraining them and each of them, their officers, servants,

agents, attorneys, confederates, workingmen, and employees from further

infringing the process of manufacturing flour, charged im the bill of com-

plaint herein to be invented by and patented to William F. Cochrane, and

now owned by the complainant, as the same is described and claimed in

reissued letters patent No. 5841, and that they and each of them stand

enjoined from manufacturing flour by the process described in said re-

issued letters patent No. 5841, until the final decree in the above-entitled

cause: Unless. within ten days from the service of this order upon the de-

fendants, or their solicitor in this cause, Gordon E. Cole, Esq., the defend-

ants shall. execute to the complainant and file in this cause a bond, with

good and sufficient sureties, to be approved by his Honor Judge Nelson,

in the sum of two hundred and fifty thousand dollars; Conditioned, That —

said defendants, once in three months, shall and will render a true account,

under oath, and file the same with the clerk of this court, showing the

amount of flour manfactured by them under the process in question during

the pendency of this action, the final account to be rendered and filed on

or before the first day of September next, and to include all flour manu-

factured by them as aforesaid since the commencement of this action; and

conditioned, also, that the said defendants shall and will pay the complain-

ant, its successors, and assigns, such sum of money as may finally be ad-

judged and decreed to be paid by them in this suit.

R. R. NELson,

Judge.

STATEMENT OF Mr. Cox, (Ree., p. 117.)

T should perhaps have stated before that among the pa-

pers which I signed as solicitor was a stipulation, a copy

of which is set out in our printed answer to this motion.

This stipulation Colonel Mason brought to me to sign, and it

was drawn up, [ think, in the handwriting of Mr. James

A. Maloney, and signed by Mr. Merriman, as solicitor for

the defendants ; whether before or after T signed it, I do

not remember, This was a stipulation about submitting

the case on printed arguments. It is on tile now in the

office of the clerk of the Snpreme Court of the United

States. While the record was being prepared for the Su-

preme Court, Mr. ILerr informed me that Mr. Davidge had

advised the defendants not to carry out the stipulation for

submitting the case npon printed arguments. I believe I

expressed some surprise, and said it would be better for

them to doit, and nothing else took place then. Some

time afterwards Mr. Herr called : again, and he told me that

the defendant had resolved not to carry out that stipula-

tion unless we would agree beforehand upon some scheme

for pooling the patents, and would release them from all

damages. [told Mr. Herr that the claim was utterly pre-

posterous; that we could not not listen to anything of the

sort, and that if the parties proposed to act in that manner

I would not have any further communication with them

about the case, I told him further that we should go on

to carry out the stipulation as far as we could, and would

file the record, that Col. Mason would submit his printed

argument, and that I would file that stipulation in the

Supreme Court, and see if we could get. the court to enforce

it. The record was brought up and the stipulation was

filed here, and I did not expect to hear anything further

from the defendants. :

Some time after that Mr. Ilerr called anew with another

proposition. He said that if we would agree upon a sum

certain, which should cover all claims for damages for the

past use of this machinery in the mills in Georgetown, and

also for the future use during the continuance of our pat-

ent, he could get the defendants to carry out this agree-

ment for the submission of printed arguments, and not

otherwise. I told him I would have to submit that to the

other gentlemen in interest. I consulted Mr. Mason and

Mr. Charles F. Peck, the only other practicing lawyers be-

46

sides myself in our party, except Mr. Phillip, who was out.

of town. While we were all averse to entering into any ne-

gotiations with the defendants pending the suit, we agreed

that there was no legal objection to ascertaining ‘the amount

of our money demands in advance, and that it the hearing

could not be speeded otherwise, it had better be done. I

think that the sum of $2,000 or $2,500 was suggested as a

basis for such an arrangement, and I mentioned “that to Mr.

Herr. He had to consult with his associates, and he came

backwards ard forwards, and we had several meetings, and

could not agree upon any terms involving a larger amount

than $1,000, and he endeavored to beat me. down consider-

ably below that, but I refused to fix upon anything lower ;

ad finally we arranged that if he would have the defendants

‘arry out this stipulation for submission, in case of our ul-

timate success, we would not exact more money than $1,000

for the past and future use of the machinery in these mills.

The use of the machinery in any other mills, or of similar

machinery in any other mills, and the interest in the in-

vention in controversy, were not the subject of our arrange-

ment at all, but were considered as left to be fought over in

this suit. |

Mr. Herr, I think, states it too strongly when he says that

[ peremptorily refused to give any W vritten agreement, I

did not give a written agr eement, but I did not assign as a

reason for it that such an agreement, written or oral, would

taint the case, as might be inferred from his testimony—

though I do not think he meant to s say that. But I did not

give a written agreement because, first, I was not prepared

with anything at the time, and did not wish to draft any

paper hastily. which might be et of misconstruc-

tion, and if I should give a paper at all I preferred to pre.

pare it deliberately. “Another reason why I was loth to

give any written obligatian was—and this I rather think I

mentioned to him—that we had nothing from the defend-

ants, and had no guarantee that they would carry out the

stipulation, and from what had occurred I had no confi-

dence that they would; and I was loth, therefore, to give

any written ob lig ition which would be one-sided, and w hich

they might make some sinister use of if they should finally

conclude to repudiate this agreement. -I therefore gave Mr.

Herr simply our verbal assurance as to the limit of our pe-

cuniary demand in case of our success, conditioned upon the

faithful performance of the stipulation, and he was satisfied |

with it.

fully appear by reference to said deeds, to be produced

”)

invention to complainant, James A. Maloney, as will more

when required; and complainants aver that said Maloney

became and was the sole owner and proprietor thereof.

Your orators further state that on the 22d day of Febru-

y, 1875, the said letters-patent were, with the assent of

said assignee, surrendered by said patentee, and the same

were, by the Commissioner of Patents, reissued to said

Wheeler, assignee to said Maloney ; copies of the specifica-

tion of which letters-patent so reissued as aforesaid are

herewith filed, and the original made part hereof for

greater certainty, which are numbered 6,307.

Your orators further state that on the tenth day of Feb-

ruary, 1875, said Maloney assigned to complainants, Herr,

James S. Welch, Edward P. Welch, Rosia W. Welch, and to

Herbert P. Welch, (the latter since deceased,) certain undi-

vided interests in said letters-patent, as will appear by refer-

ence to said assignment, to be produced, and which is to be

made part hereof, for greater certainty; and complainants

aver that they, after said Herbert P. Welch, there and

by reason of the premises, became and were the exclusive

proprietors and owners of said invention, so secured by said

letters-patent, and the reissue thereof, as aforesaid.

Complainants further state that on the 23d day of June,

A. D. 1863, the United States granted and issued to Ra-

mond S. Reynolds, who was a citizen of the United States,

and who was the original inventor and discoverer of cer-

tuin other improvements in a machine for cleaning grain

and other materials, and who had complied with all the re-

quirements of law in that behalf, letters-patent numbered

38,985, certified copies of whieh w ‘ll be produced, the origi-

nal of which letters-patent were by said patentee surrendered,

and the same were, on the 30th d: ay of March, 1875,

reissued by the Comisiasiones of Patents to said Rey-

nolds, assigne etocomplainants, and Herbert P.Welch,which

reissue is numbered 6,361, the copies of the specitications

of which are herewith filed, and the original of which let-

ters-patent so reissued will be ae on the hearing or

certified copies of the same.

Your orators further state that prior to the reissue there-

of, as aforesaid, they and the said Herbert P. Welch be-

cate the exclusive owners and proprietors of said inven-

3 ~

los

tion, so secured by said letters-patent, by mesne convey-

ance from said Reynolds.

Complainants further state that said Hachert P. Welch

became deceased intestate on the 9th day of April, 1875,

and that letters of administration were granted upon his

estate to James S. Welch by the Supreme Court of the Dis-

trict of Columbia, as will more fully appear by reference

to the same, certified copies of which will be produced on

hearing.

Your orators further state that the defendants are using

a machine or machines for cleaning and purifying flour and

meal so constructed as to embrace the improvements con-

tained and specified in one or both of said letters-patent,

and your orators have reason to believe they will continue

such use; that the defendants refuse to account to com-

plainants for any portion of the profits which they have

made or are making by such unlawful use, or to desist

from the use thereof, in violation and infringement of com-

plainants’ rights so secured to them as aforesaid.

Complainants further state that they have no actual

knowledge of the gains and profits received by detendants

from the use of such machines; neither do they know the

number of machines so used; but they aver that defend-

ants have derived and received, and are sttll deriving, large

gains and profits from such use; that defendants are largely

engayed in the manufacture of flour in the city of Saint

Louis, in the State of Missouri; that by the use of such

inventions and improvements described and set forth in

said letters-patent the quantity of merchantable flour from

wheat is greatly Increased, and the quality of the higher

grade of the flour is greatly improved, and your orators

believe, and therefore charge , that such gains and profits

so made by the use of such machines are or exceed the sum

of five hundred dollars per day, but for the reason that

the Vv have no actual knowledge of such gains and profits, nor

of the number of machines so used, or of the amount of

wheat by said defendants so manufactured into flour, your

orators pray a discovery thereof.

All which acts and doings of defendants are contrary

to equity and good conscience, and tend to the manifest

wrong and injury of your orators, and inasmuch as they

have no full or adequate relief at hand, your orators pray:

ad

Jo

Ist. That the usual process of subpeen: 1 issue to defend-

ants.

2d. That they and each of them be ainhired to answer

under oath each and every allegation in this bill contained,

and particularly that they answer and disclose the guins

and profits derived by them from the use of such machines;

that they state particularly the number of machines used

by them in the cleaning and purifying the middlings of

flour, and particularly the mauner of the construction of the

same, and each one of them, and if in conformity to any

pretended pate nted: device, state particularly under what

letters-patent it is claimed to be constructed, and the num-

ber of bushels of wheat daily manutact ured by them into

flour.

8d. That an account be taken of such gains and profits,

and that defendants be decreed to pay the same to com-

plainants with such damages as to the court shall seem

meet and proper, and that. a writ of injunction may issue

restraining and enjoining perpetually defendants, their

agents, servants, and workmen from the fnrther use of said

improvements, so described and set forth in said letters-

patent, respectively, and for such other or further relief as

to the court shall seem meet and proper.

And as in duty bound your-orators will ever pray, &e.

ABRAHAM H. HERR,

JAMES 8S. WELCH,

EDWARD P. WELCH,

ROSIA W. WELCH,

JAMES H. WELCH,

JAMES A. MALONEY,

JAMES 8S. WELCH,

Adm’r of Herbert P. Welch, dee'd.

e

Srate oF Missouri, ?

County of St. Louis. §

James A. Maloney, one of the above-named complain-

ants, being duly sworn, says that the foregoing bill is true,

except as the matters therein stated to be on information

and belief, and as to those matters he believes it to be

trne.

JAMES A. MALONEY.

154

Subscribed and sworn to this 17th day of Jan’ry, 1875,

before me, a notary public for and within the county of St. a

Louis, State aforesaid, duly qualified on the 7th day of

January, 1874, and whose term of office will expire ou the

17th day of December, 1877.

[SEAL. | M. J. SULLIVAN,

Notary Public, for St. Louis Co., Mo.

Natuan Frank, ae

Sol’r for Compl ts. (|

'

And afterwards, to wit: on the 20th day of September,

A. D. 1876, at a regular stated term of the circuit court of

the United States, in and for the eastern district of Mis-

souri, begun and held in the said district, at the city of St.

Louis, on Monday, the 18th day of September, A. D. 1876,

the followiug proceedings were had and appear of record

in said cause, to wit:

A. H. Herr e¢ al., Complainants,

v8.

E. O. Sranarp et al., Defendants.

This day came the complainants, by their solicitor, Na-

than Frank, Esquire, and dismiss the bill of complaint

herein.

Untrep Srates oF AMERICA, te

Eastern District of Missouri, z

I, M. M. Price, clerk of the cireuit court of the United

States, in and for the Eastern District of Missouri, do

hereby certify that the foregoing is a true and correct copy

of bill in equity, filed May 27, 1875, in case of A. H. Herr

et al. vs. E.O. Stanard et al., and dismissal of said cause,

as fully as the same remains on file and of record in said

vase, in my Office. |

In witness whereof, I hereunto subscribe my name and

affix the seal of said court, at office in the city of St. Louis,

15

5

in said district, this 27th day of November, 1877, in the

pe year of our Lord eighteen hundred and seventy-seven.

This text is long and has been trimmed here. Open the source document for the complete record.