# Record and brief — Elijah S. Alvord, Appellant, vs. The United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1877_69%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1877 ## Text a # %, ’ > % : :. . am Pg i ° a ™ Pa % oe Pg re ; a % 4 ig ifm af 4 4 ; : »e fg ~ ; ; ; A F ny ; a 2 a , fr 4 | ‘ : , Lo - és te oe é ie I : = : ¢€ i 7 on . pines ‘ a P ey a of pri 2° , 4 , Pa oe Ye oil . ; " wt :. 4 Fe Go we ¢ % & 4 J * \ 2 “) , x & sz 2 Fa ) : 9 ; ca a * . z : # e . > i * " * TRANSCRIPT OF RECORD. | 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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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 , aaa er te Sa eee ot # ‘i ms ie oe Pane ee eT re) PARA RN 2 Fee OES IR Mr Ra FOP Ne a * ts tmnt ~~ + P 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.” Heya (ME BN Saget es ee Bi Saat fn apt r OER aan SE se tia a Yerb CAE Sea ane PA he ys =n Pe eee Tie > beet ny e: ‘ { SP, é ce anh, sy ra we 4 “fae - Oe Y Xie he ch y y NODA AEE ee soley ae a ee ee | * ay Sy ies Steet fg Mi erat Pare “3 aaa hag eR Saba SKN he wey ri Spc Gin mee pa schasivn bidG cd ae ca ER Sys ee ponte dete AM RES AEOE as a i Pee ah Pe nae a 5 in aeunee a the Un 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 1 ¢*An gress passed on the 21st day of April, 1308, public contracts. irther represents that on And your petitioner | ft 3. at Ws ashingtou aforesaid, he e September, 1358, — o¢ with the United States of America, (t ex d Grand Island C transport and once a “weet t ritory, DY Mo three times 4 week to Monroe, { increased ice, if he should pre- our petitioner the sum nt e United States. creed that said eontract aandili, t of Con- act concerning ~*~. 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 n 4046, from Columbus, Nebraska 4+¢F ity, to Fort Kearney 4 and back, the — in four- -mule Tue Unrrep Srares. \ Findings of faet hry the court. I. In 1858 the Postmaster-Generail entered into five written contracts 2 «i 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. « lait ate GP Ae ashes 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. toa eB. ieee — 8 SOTA SBP RR Nate ot we: . OA ete eC Brig Pe Nae verges Me - Gon sts BSS EraG ra ia os eet tS of Sag tee fi I ti ce , BA RES PE RE Bae RMI SEAY Vi MSMR ESS Saint tet Oe eee Sa serpy SIR ae Gee Meet EDAD: Re Ae ara 2 i . nak : Ta et ta a eal te SS Wii eg : 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. EERE AT Cig Yt, delat Ry BANS i RSS HR cheek ns nee ck "7 sy % 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 ina icin ee baat iy eae ¢ rR baie 2 a ante ah Risse MEP AOS PINS iens- 6 Ce ee Peay EAs EE COIL: DGGE aa eos ye or Ba 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. aaed - Ne ee ee cieiitet et ta leo Git LL See ee ae ter Le fs er ere ES ET ee ah ge, ee DeLee SS Een es “> | Sin. pel Be 2 ew mt — = -_— ~~ aati tala eT eed ’ -* : — + “ | | ° é 4 ’ : | | | , , | : " . 3 | ’ % a ond : me fs 7 | re ; 2 ; j : ; | | 2 ; be ; . f : & : | . . ; | a . ; | : 7 | t " | | > i : t i . | 4 : | : | ‘ a ee , . | E ‘ 'e F : | ; | | : > ” % | | ? POT CR eter er ER Sa, iy | | | y | | | . 1 i : | | . : } | ‘ i ; | | | ; pad ‘ : ‘ | . , i | : - : : ; : | | ES / A J ; me : fe | , A : ! x | oe ee one oe ap TOR TE EY I: “a ie wink ind eae as surt of the Muited States. ALVORD, Avpmutann, > - eo! Us. 2 “a £ ITED ‘ 4 .GUMENT OF THOMAS WILSON FOR APPELLANT. % ener" ¢ ‘ > ‘PHomas Wuson, Cou ie i ehh, Diced paagrtin OE we ath se pep ately ad gate = Le ioe ery 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.’’ | ti } ta TP? ‘ 4 Pind & bad ~ -_ > . al : t * Tt raaa - : »” —- . © r + } > and ; ae * « - ~ ° e 4 a ° ve Lid i > 5s | & j Seecee ry _— r - 3 ; ee 24 s ~ a ~_—— L S j a i '. , Ft gc t ey Yi: os ‘ ti a 2 ice sgt % . >? a ? ., } : 5 3 ) VAS 28S Vriicin @ > t — . % a € 34 \ TE TETETH 7 t Ba py Sis ci (ALS - + : ~ . . e + ~ — BCU IE LeCN ice, 20 & ~ - ad > 3 > a ery 3 at 2 BS a ee Le he ’ > os \é ‘ . ot a moe | re «sh Vv } — oe a - a ow x ~ oat oe 3 Rs ry . S42 “ os *» oo 4 oe ® 4% ro -_=" .: - a Pn 4 2 - . - aged ae ss we | + . J a + —— — — — 7 , 248 ; % ciaim : a ee SS os ~ a — os ° . pt zy ” > aw > re LaF = 4 aa Cw a »* “#2 Vv . . . ; . r — 4 ‘ ‘ —_ =i-4 ry | on rh —_ *» - “ _—- So 2 & : . . : - : — ——— + 5 wey - > 5 —" : i SED EL Cs CEsw 3 tif a y 7. _ b Fi , sad . rt ow coed ‘ _ 4 —— | a a ae . @ ia as . — - ao ry , ” { ‘ si 4 A «wf + a > ~ . ~ Pd - > a R 4 : . a «~ « a = - -_ > > ~ ~te. ow, & a ~ ; oa - : Py wicca > a Bt > 2#t “ os * = i rr te 2 ~. ~ > * > ¢ VeORERER §F72 GA BSC Pe £is— ~~ > > > b P PS £8273 . . 7 Pig ¥" Sa Pe. = 4% ee é A : £ ~ = . ? 3 * + a vy) sc? . f F : ° j 7 at , a / wi £8 se Fer . ; ‘ Y z | eee ¥ ‘ > > SLi (Fi Lilet ViseSiLs0O OO ; * . ’ es r : P 4 pe ' ” ' 7.8 is &i Bt ‘ —> ei LA | - — oe » >. ; i : a] | rekta it) & sta Viichi ~~ Pi. The $14,000 arrane and performance, ente 4, te 2 Fe re ; res — . ~ = 7 '# 4 f 4 ta ~ : -— | ‘- of } ry -—— a i = f ae ol =’ ¥ wes a wo ¥iSs y Le 4 $ > f ~ es iC te, ; f t trio conti i tilereo “thereupon refrai ned . Terres Tey 0 lew sty run a daily mail tee : VO vii consideration of rehy rere ~Z >» Ww si Was permitte:! te Vv ‘eve ys. Von LiP hcg: » » bi _ * Pa - a. vist i ' mr wea: o .eg et efraining from pressing his claim . - d him to continue the receipt of ‘ . - . ” . al bet Vf eg? Fy V LS Yeict » be equivalent se >*% . a4 AS as awh" UNS Fw %. ive tiwVwses ¥ round that “P = i FE SEE : . a a d oO proof stewing that he tad not **thereupon refrained : lis motion was allowed, anda Cls.) the claimant effectually . > > be Uo ~ %. 7 ° = , fo é a al Seu i _i/ a etter. and 2zvhile y him. ial, that ‘* subse- had defeated > the additional a ? ° Lum, was still being rendered, . * * ; ~~ > e ute to prove the justice of Ais a — il, and ofherwuise pressed the Second Assistant officer with whom to this claim had previously b¥ virtue of his office at the Bureau of the Post Office ae il rOuUMETRE . ~ om é S — ‘ RPE OY Fea3ION Of its offer, acceptance, mad became part of the original § 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 Oem: ve cas then Tease Se 5 ae 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. thins? eae te ‘ i is ; } sf ; . i, f > z os 7 . 6 - ; ; i * . 7 he) Voh Nahi Wales Veh Mk Ved MAPA ILNE RI Gd ADSM LT Nt ALANIS PN pA thal . . ‘ st . ‘ > 4 >; -~ je r. ‘ ‘ . ee 4 a” RK . . ocadn ss . . : x ¥ is as ~ J & z = . + - ; 4 ; f : * » ° ’ f re EE te te ACID } * ~ bi % ’ 4 P: * Re; f — a . io- ’ i 4 ti * . : : Nags 7 ? * ¥ © a « - , , a . * { Ay ili on eaiahagaes 59 acon saben cipro so metinaggpatadlgpnr ye ep eer et tertinaine = nig ty s cay te ye eles tele niin re : 7 e * ; if ; 3 = * } \ } f ~ 4 oe A be ; « - ; i k % * . y. ° ¥ « 4 ‘ ; 3 4 , % ” , , 1 ene ee i ~ ‘ » : 4 4% Pee 5. | ve fs t ‘ ge oe : ‘ " on i c P cgens ; 1 ‘ on : a sry ; s | ] : 7 = ‘ * } i 2 ; 7 : \ \ 4 nies & ‘ : | . ‘ ‘ 7 a } My ‘ 4 - %y ; 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 : { ' 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 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 mi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1877_69%3A0. Public record. Not legal advice.