Record and brief — John L. Heald, Plaintiff in Error, vs. Harvey W. Rice
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TRANSORIPT RECORD.
SUPREME COURT -D STATES,
JOHN L. HEALD, PLAINTIFF IN ERROR,
VS.
HARVEY W. RICE.
N ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
DISTRICT OF CALIFORNIA. |
FILED JUNE 2, 1879.
Say
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SUPREME COURT OF THE UNITED STATES.
No. 193.
JOHN L. HEALD, PLAINTIFF IN ERROR,
VS.
HARVEY W. RICE.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
DISTRICT OF CALIFORNIA.
INDEX. |
Original.
DITOR bb atlas wain ose eg pike tne a0.09 wpheneonniosen bébd coho bipene ceneee 16
Bill of exceptions (defendant’s)...... i san ahha nose oan eed ake ore 23
NE is caste ae keee eens ccoas cure sete. Ga uuibe teen 1010
Clerk’s certificate... 2.2.22 2. cone ce ccce oe isin Wi ted louesed +acvGane weak - 1013
Complaint..... RECESS SENG SATEEN eS rer ame el ies 4
Certificate to judgment roll... . 2... coce vc ccce cons te ccee cncece soswes oka 22
Commission to take deposition of B. W. Payne and others....-.....----. 991
Cay ON OR INR Gri. noe. oie ctkns vccku cose seseccseksbddbedivecce. Te
Citation ....... ouiasiimania i iia en Aa wreckwe win a Gdneaells bbe ade tink a
Demurrer........ sade Comeel he kane Red G eee sien peeEeeisake buble kewwees« 2
Diagram ..... Pini chee eel Uakews eebNebonehdedehh nbubebdlewsleehdus 841
MO chdk benvcenbecss Sd dd Sb endkeeebanens phhncnendtaade Canes ey 854
Pi daichii hs hha CRKdS CoRR deed Rieenadads noaebehissneemcace: Sl
RIDGE chten nib ena ae No wk ah chads Adds cased besnieatadts chudsncccs .. CO
DO aa is DAs pad he ail nn ods Rawk oc adicw bk tatenuinawdekas dis dkile bbie 872
bcs ehS ei adinia kde a Gi dn aii Wasa adios oo abe ke ale we a go Welds ab di aeae 877
BEL a's Ghai item ik niiee hn nde AUi mlb nd dame cia ein wei keane 895
BOs ccc kdRddabded bhaeawan bis eank:scpceenned ceumhbsddsdtededabeabos 925
ROR ii edd humo gu anaes aa Adnd no ciid Kin bainia Ned bln taKha tbe coke 930
DO Uae ath bails Juke nndud seed ee sidey Maiesdeubeend uacwbalbadbele aka ebico 931
ice cc cyamdnghioke sunk pia eet naa eo dee) Miadbnkneekiedieitds wali 9314
Paki nied ctnahsididko da dedk nada cddbdne onda edecee kid dbbuCros 955
De idencsdckintsAdedbasddeedssendcoas inbndtckhe diet vdepie ode seedbedes 966
SPP this Wk eae cade dad pae bebig Obs saWebé dwtndt nUiodn acc eacde comes 990
Exhibit A (Rice’s patent, 20 January, 1875....... 2.2.22. cccces cece cece 83
Pe ite iidued aebgas ahablaaseeees suiceeUncbes ccan sane 990
INIT Gis suns Chases Sh bGee aude bbe J caw cbiveubeos Gken 841
m tmepem menene, 4 May, 1678) ...0.. ccccce cocccs soveccccnecses &50
aia. pw cie hia baie eeimaia sip crban vader 854
a neaeubee ss re
D (Diagram
Print.
II INDEX.
Original. Print.
NG SCO os eh ate dake EASY. adende tarwnde SeKoa UE Seoues 877. 205
G (Vienna exhibition, straw-burning portable engines).......... 885 207
F. (PRGRORTRI YT. ong cnncoe cbdw 0encse cecwus venues opdes ‘netademes 894 209
pb en cor het Bde Suid a wk ane (apd ties (isa ss taeaees 895 209
oF RPO NI og dn ba tik denn nWs Spine 0250: os ap sc pe gues sees. ew we
K (Heald’s patent, 27 June, 1876).......... -----.....- sie si aoccavace 912 212
L (Heald’s patent, 4 November, 1873).......... -....-...-----.. 926 216
M (Daglish’s patent, 20 August, 1866)...... .... .. aviswwnas eco, OO B19
N (James’ & Napier’s English patent).... ........ ......----. -- 86 2
© Zombies OE Bie FV 5 Er as bw hed 3 ns din ct eens po dcdcccnnpee Ol BB
CD Fm OE i he FU hon 60 oi Sine icine code since nade én 975 227
Deposition of D. W. season eauy baad Rte ns tn ol ig eeee:. Cee
DF SN is baa ba Won 0 68 56 dite cone en ccag cs noes ctneaks CO wan
D SINS 55s tire aT hoof 26 Gh Blos od whinceic aces avis an SOR BM
BAP IIE Do nod cc wieeh ss don c'ks <p woes tvicgass ov od se euecices: (aul: 2a
4 (PROGURIEDE } 6 onion node cn sc theese ccncccce -tecce secs cece bees 1008 =A
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ne a ee ee aus Gb Ghs sbanee pict acavawdinked 14 G
Order that a commission issue, &c...... i ean iis wk chee Unkadiolibeaca meas 999 233
Summons.......... sea init ie enwe bad in kahs bdhsgnbeas cay sans kabeae 1 2
SUUNOD.. <n: «ceo man crew nla Walbadca Wik nawebbd dcasdacedb nes ‘Wadecdéiess 2. 200
PUERCO OE Ti, Tee I ons dws bb od Reed Meks bo Sas ek veuben bese 128, 760 32,178
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Bes Ra orn sas ccsons sates Diesel sombemiknnna aida 271 = «64
WE is BN + hbk wh KK ck che Seba ee ckbss Side Meda aiwwie 487 114
i esis inet tld hy ea bain eaen nga decade sada tian 246 59
Nii t Rt hicks wee eee Abe akbedns cébbnd depen ackeee - 562 132
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Ses MA sis icnk dowd pa waein Geandesugese 64 ohbs pwadai apes! 395 = 9B
A SIUOUORS kui ci ickses EUs kG cdc c hala wide sleke Ppa nen opin 605 142
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UNE Siig siWibs Cain Gis sien ge evened banhebnodeaens 409 96
CRE es sik Eee cd cae cbnteban addi wennuodagaed 510 120
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Cs I ie nti d hin ca bc wekesenecdencedes ww: C1 AR
EE i NN i ene Sob sd Sandee swwoes agvene ooeuseane 183 44
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OR oid. iii cawaedh saeste dened deowes iblacsiicny ik inca 106 27
A oii Keka Rh cks Scawocncddced e<abee~ sates 146, 740 36,173
John Newell............. ee wticud Jtiphcie Cees eskek kweae 752 176
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OT Rien an cinta Sad nse Ane dhe pn ecs-caes sees 27,153, 765 9, 37,179
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Be CE CDR i iintdk nn ne cuccdh eibiierns cohden ene. hbk ahed ees <b add cebeee c I
a.
‘to correct that error what of right and according to the law and cus-
al UNITED STATES OF AMERICA, 88:
To Harvey W. Rice, defendant in error, greeting :
You are hereby cited and admonished to be and appear at the Su-
preme Court of the United States of Ameri a, to be held at the city of
Washington, in the District of Columbia, on the second Monday of Oc- |
tober, A. D. 1879, pursuant to a writ of error filed in the clerk’s office
of the circuit court of the United States for the district of California,
wherein John L. Heald is plaintiff in error and you are defendant in
error, to show cause, if any there be, why the judgment in the said writ
of error mentioned should not be corrected, and speedy justice should
not be done to the parties in that behalf. |
Witness the honorable Morrison R. Waite, Chief Justice of the Su-
preme Court of the United States of America, this 8th day of January,
A. D. 1879, and of the Independence of the United States the 105.
[SEAL. | LORENZO SAWYER,
U. 8. Cireuit Judge, Ninth Judicial Cireutt.
b Service of the within citation admitted by copy this 11th day
of January, A. D. 1579.
H. W. RICE.
M. A. WHEATON,
| Attorney for the Defendant in Error.
(Indorsed:) 1463. United States Supreme Court. John L. Heald,
pit in error, vs. Harvey W. Rice, def’t inerror. Citation. Filed 4th
January, 1879, L. 8. B. Sawyer, clerk, by J. T. O’Beirne, d’p’ty ek.
Cc UNITED STATES OF AMERICA, 88:
* The President of the United States of America to the judges
of the circuit court of the United States of the ninth judicial cireuit,
in and for the district of California, greeting:
Because in the record and proceedings, and also in the rendition of
the judgment, of a plea which is in the said circuit court before you,
between John L. Heald, plaintiff in error, and Harvey W. Rice, defend-
ant in error, a manifest error hath happened, to the great damage of
the said plaintiff in error, as by his complaint appears, and it being fit
that the error, if any there hath been, should be duly corrected, and
full and speedy justice done to the parties aforesaid in this behalf, you
are hereby commanded, if judgment be therein given, that then, under
your seal, distinctly and openly, you send the record and proceedings
aforesaid, with all things concerning the same, to the Supreme Court
of the United States of America, together with this writ, so that you
have the same at the city of Washington, in the District of Columbia,
on the second Monday of October next, in the said Supreme Court, to
be there and then held, that, the record and proceedings aforesaid be’
inspected, the said Supreme Court may cause further to be done therein
tom of the United States should be done. :
Witness the Hon. Morrison R. Waite, Chief Justice of the Supreme
Court of the United States, this 8th day of January, in the year of our
Lord one thousand eight hundred and seventy-nine, and of the Inde-
pendence of the United States the 103d. |
Attest, &e. |
: L. S. B. SAWYER, Clerk,
By J. .F. OBEIRNE, D’p’y Clk.
The above writ of error is hereby allowed.
[SEAL. | | | : LORENZO SAWYER,
me U. S. Cireuit Judge, Ninth Judicial Cireuit.
. : , See
HEALD VS. RICE.
The answer of the judges of the circuit court of the United States
of the ninth judicial circuit in and for the district of California.
The record and all proceedings of the plaint whereof mention is
within made, with all things touching the same, we certify, under the
seal of our said court, to the Supreme Court of the United States of
America within mentioned, at the day and place within contained, in
a certain schedule to this writ annexed, as within we are commanded.
By the court:
[SEAL.| L. S. B. SAWYER, Clerk,
By J. F. OO BEIRNE, Deputy ‘Clerk.
(Indorsed :) 1463. United States Supreme Court. John L. Heald,
pif in error, vs. Harvey W. Rice, def’t inerror. Writ of error. Filed
January 8th, A. D. 1879. L. 8S. B. Sawyer, clerk, by J. F. O’Beirne, .
d’p’y el’k. 7
1 : Summons.
In the circuit court of the United States of the ninth circuit, in and for
the district ef California.
HARVEY W. Rick, PLAINTIFF, )
v8. a
JOHN L. HEALD, DEFENDANT. \
Action brought in the said circuit court, and the complaint filed in the
office of the clerk of said circuit court, in the city of San Francisco.
The President of the United States of America, greeting, to John L.
Heald, defendant:
“You are hereby required to appear in an action brought against you
by the above- named plaintiff in the circuit court of the United States,
ninth circuit, in and for the district of California, and to file your
2 plea, answer, or demurrer to the complaint filed therein (a certi-
fied copy of which accompanies this summons) in the office of the
clerk of said court, in the city and county of San Francisco, within ten
days after the service on you of this summons, if served in this county,
or if served out of this county then within forty days, or judgment by
default will be taken against you.
The said action is brought to obtain a judgment against said defend-
ant for the sum of five thousand dollars actual damages, together with
such further sum, not exceeding in the aggregate three times the amount
of said actual damages, and for such other and further relief as plaint-
iff may be entitled to have for an alleged infringement of patent; also
costs of suit; and if you fail to appear and plead, answer, or demur, as
herein required, judgment by default will be entered against you and
| ach of you.
3 Witness the honorable Morrison R. Waite, Chief Justice of the
Supreme Court of the United States of Americ: 1, this 13th day
of January, in the year of our Lord one thousand eight hundred and
seventy-six, and of our Independence the 100th.
{ SEAL. | . LORENZO 8. B. SAWYER, Clerk,
| By J. F. OBEIRNE, Deputy Clerk.
HEALD VS. RICE.
(Endorsed :}
OFFICE U. S. MARSHAL,
Dist. of Cal ifornia.
I hereby certify that I received the within summons on the 13th day
of January, 1876, and on the same day, at the county of Solano, in this
district, L personally served the same upon John L. ‘Heald, the defend-
ant named herein, by delivering to and leaving with him ‘personally &
true copy of this summons, to which was attached a certified copy of
the complaint.
San Francisco, Jan. 14, 1876. }
| . P. MARSELLUS,
his te Marshal,
By C. H. MEAD, Deputy.
Filed January 14th, 1876. L. 8S. B. Sawyer, clerk, by J. F. O’ Beirne,
dep. cl’k.
4 peor - Complaint.
In the circuit court of the United States in and for the district of Cali-
fornia, ninth elrcuit.
HARVEY W. RIcE, PLAINTIFF, )
vs.
JOHN L. HEALD, DEFENDANT. J
The above-named Harvey W. Rice, as plaintiff, complains of the
above-named John L. Heald, as defendant, and, for cause of action, al-
leges:
That the plaintiff is a citizen and resident of the State of California,
and for more than ten years last past has been a citizen of the United
States of America, and that the defendant is a citizen and resident of
the State of California.
Thatthe plaintiff herein, Harvey W. Rice, was the original and
o firstinventorof a certainnewand usefulinvention onmachines, to
wit, of an improvement in steam-boilers. That the same was a
new and usefulinvention, and consisted of, amony other things, of com-
bining a straw-feeding attachment with the furnace door of a return-
flue steam-boiler, by which combination he succeeded, with the use of
straw alone as fuel, in generating steam ample for the practical opera-
ting of steam- engines. Thatthe same was not known or used by others
before the plaintiff's said invention, and at the time of his application
for a patent therefor had not been in public use or on sale for two
years, nor abandoned, nor was it proved to have been abandoned.
That the said Harvey W. Rice, being so as aforesaid the inventor
thereof, on the 20th day of January, A. D. 1874, upon due application
therefor, did obtain letters patent of the United States for the said in-
vention, granting and securing to him for the full term of seventeen
years from the last- named date the full and exclusive right and
G liberty of making, constructing, using, and vending to others to
be used the said ‘invention and improvement throughout the
United States and the Territories thereof.
Said letters patent were issued in due form of law, under the seal of
the Patent Office of the United States, and were signed by the Seere-
tary of the Interior and countersigned by the Commissioner of Patents
of the United States, and bore date the day and year last aforesaid, a
4 HEALD VS. RICE.
description whereof and of said invention more fully appears in said
letters patent, which said letters patent are in due form of law, andare
ready in court to be produced by the plaintiff, or a duly authenticated
copy thereof.
That afterwards, to wit, on the fourth day of May, A. D. 1875, upon
due application therefor, and upon surrender to the Commissioner of
Patents of the United States of the letters patent last aforesaid, new
letters patent were duly issued to the said Harvey W. Rice for
7 the same invention, for the residue of the period then unexpired
for which the said original patent was granted ; that the letters
patent so reissued were issued i in due form of law, under the seal of
said Patent Office, and were signed by the See retary of the Interior
and countersigned by the Commissioner of Patents of the United
States, and were dated the day and year last aforesaid, and were de-
livered to said Harvey W. Rice, whereby there was secured to him, his
heirs, administrators, or assigns, for the residue of said term of seven-
teen years from the said 20th day of January, A. D. 1874, the full and
exclusive 1 right and liberty of making, constructing, using, and vend-
ing to others to be used the said invention hereinbefore mentioned and
described ; a description whereof of said invention more fully appears
in said reissued letters patent, which said letters patent are in due form
of law, and are ready in court to be produced by the plaintiff, or a duly
authenticated copy thereof. And plaintiff says that he is
8 still the owner and holder of said reissued letters patent, and of
the rights, privileges, and liberties by them granted.
That prior to the issuing of said letters patent all proceedings were
had and taken which were required by law to be had or taken previous
to the issuance or reissuance of letters patent granting special rights
and liberties for new and useful inventions. That from the time of the
granting to him of said letters patent hitherto the said plaintiff has
been constantly manufacturing and using, and selling to others to be
used, the said invention and improvement, to his great advantage and
profit; yet the said defendant, well knowing the premises, but contriv-
ing to injure the plaintiff, has, since the fourth day of May, A, D. 1875,
unlaw fully and wrongfully, and without the consent or allowance and
against the will of the plaintiff, manufactured and used, and sold to others
to use, the said invention and improvements described in and pro-
9 tected by said reissued letters patent, and from thence hitherto hath
continued to manufacture and use, and sell to others to use, the
said improvements and invention within the State of California, "and
within the jurisdiction of this hon. court, in violation and infringe-
ment of the exclusive privileges, rights, and liberties secured to the
plaintiff as aforesaid, and contrary to law and the form of the statutes
of the United States in such cases made and eesigs
And plaintiff says that, on account of the said acts of the defendant,
he, the plaintiff, has been greatly injured and damaged, and deprived
of great profits which he might and otherwise would k ave derived from
the said invention and letters patent, and has sustained actual damages
to the amount of five thousand dollars; and, by force of the statutes
aforesaid, an action has accrued to him to recover the said actual dam-
ages, and such additional amount, not exceeding in the whole
10 three times the amount of such actual damages, as the court may
see fit to order and adjudge.
Wherefore the plaintiff prays judgment against said defendant for
the sum of five thousand dollars, actual damages, together with such
further sum, not exceeding in the aggregate three times the amount of
oo
.
7 7 a
= oder:
~ ee
2
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a
ES
HEALD VS. RICE. | 5
said actual damages, and for such other and further relief as he may be
entitled to have, and for costs of suit.
M. A. WHEATON,
Plaintiff's mohair de
(Endorsed: :) Filed January 12th, 1876. L. 8. B. Sawyer, clerk, by
J. F. O’ Beirne, deputy clerk.
11. ; Demurrer.
In the cireuit court of the United States in and for the district of Cal-
ifornia, ninth cireuit.
HARVEY W. RICE
08.
JOHN L. HEALD.
Defendant demurs to the complaint filed herein, on the following:
grounds :
-Ist. The complaint does not state facts sufficient to constitute a
cause of action.
2d. It is unintelligible, ambiguous, and uncertain in this, that the
complaint shows that the pretended invention was a combination, with-
out stating all the elements of said combination. |
Wherefore defendants ask te go hence with costs.
ESTEE & BOA LT,
Attys for Def't.
12 (Endorsed :)
Service of the within demurrer admitted this 15th Mareh, 1876.
M. A. WHEATON.
Filed Mareh 15th, 1876. L. S. B. Sawyer, clerk, by J. F. O’Beirne,
dep. ey’ k. ae
15 Affidavit of counsel, accompanying demurrer.
In the cireuit court of the United States in and for the ninth circuit,
district of California.
HARVEY W. RICE, PL’FF, }
WS, >
JOHN L. HEALD, DEF’T. \
I, M. M. Estee. of counsel for the defendant in the above-entitled ac-
tion, do hereby certify that, in my opinion, the demurrer to the com-
plaint this day filed and served herein is well founded in point of law.
M. M. ESTEE.
Dated San Francisco, March 15th, 1876.
(Endorsed :) Filed March 15th, 1876. L. 8. B. Sawyer, clerk, by J.
F. O’ Beirne, dep. cl’k. : ,
6 HEALD VS. RICE.
14 Order overruling demurrer.
At a stated term of the circuit court of the United States of America
for the district of California, held at the court-room, in the city of the
San Francisco, on Monday, the 3rd day of April, in the y year of our Lord
one thousand eight hundred and sev enty- -SIX.
Present, the honorable Lorenzo Sawyer, cireuit judge.
HARVEY W. RICE
0.
JOHN L. HEALD.
This cause coming on to be heard upon the demurrer herein, M.
M. Estee, esq., appearing on behalf of demurrer, and M. A. Wheaton,
esq., in support of bill of complaint, was argued and submitted to the
court for consideration and decision; and the same having been duly |
considered; it is ordered that the demurrer herein be, and
15 the same is hereby, overruied, and that the defendant be granted
20 days to answer herein.
I hereby certify that the foregoing is a full, true, and correct copy of
an ori iginal order made and entered | in the abov e-entitled action.
Attest my hand and seal of said circuit circuit court this 13th day of
July, A. D. 1877. :
[SEAL. | . L. 8S. B. SAWYER, Clerk,
By J. F. OBEIRNE,
Deputy Clerk.
16 Answer,
in the circuit court of the United States for the ninth cireuit, in and for
the district of California.
HARVEY W. RICE, PL’FF,
D8.
JOHN L. HEALD, DEF’T.
Now comes the defendant, John L. Heald, by his attorneys, Estee &
Boalt, and for answer to to plaintiff's complaint filed herein denies,
generally and specifically, each and every, all and singular, the allega-
tions in plaintiffs complaint contained.
Wherefore defendant prays to be dismissed with his costs.
ESTEE & BOALT,
Attys for Defendant.
17 (Endorsed :) |
Service of the within answer admitted this 18th day of April,
1876.
M. A. WHEATON,
Atty for PUF.
Filed 18 April, 1876. L. 8S. B. Sawyer, clerk. |
HEALD VS. RICE. 7
18 Verdict.
HARveEY W. Rice
V8.
JOHN L. HEALD.
We, the jury, find for the plaintiff, and assess the damages at one
dollar. 7 |
NORMAN PORTER, Foreman.
(Endorsed :) Filed 13th January, 1877. L. 5S. B. “aia Bet clerk, by J.
F. O’Beirne, dep. cl’k.
19 ; Judgment. |
In the circuit court of the United States of the ninth judicial cireuit, in
and for the district of California.
HARVEY W. RICE |
VS. , No. 1463.
JOHN L. HEALD. f :
This cause having come on regularly for trial on the 4th day of Jan-
uary, A. D. 1877, being a day in ‘the Nov ember, A. D. 1576, term of said
court, betore the court and a jury of twelve men duly impaneled, M. A.
Wheaton, esq., appearing in behalf of plaintiff, and M. M. Estee and J.
H. Boalt, esq’s, on behalf of defendant, and the trial having been pro-
ceeded with upon the Sth, 6th, 8th, 9th, lith, 12th, and 13th days
of said January, and witnesses ‘on the part of the plaintiff and of the
defendant having been sworn and examined, and the evidence being
20 close, the cause, “after arguments of counsel and the instructions
of the court, having been submitted to the jury, and the jury hav-
ing subsequently rendered the following verdict: ‘* We, the jury find
for the plaintiff, and assesses the damages at one dollar,” and the court
having thereupon ordered that judgment be entered herein in aceord-
ance with said verdict: Now, therefore, by virtue of the law, and by
reason of the premises, it is considered by the court that Harvey W.
lice, plaintiff, do haveand recover of and from John L. Heald, defend-
ant herein, the sum of one dollar, and his (the said plaintiff's) costs in
this behalf expended, taxed at two hundred eighty-eight 3°, dollars.
Judgment entered the 13th day of January, ‘A. D. 1877.
L. Ss. B. SAW YER, Clerk.
A true copy of an original entered in the therein-entitled cause,
21 in judgment register C. L., No. 2, p. 176, 177.
Attest, &ce. : | |
[SEAL. | L. S. B. SAWYER, Clerk.
(Endorsed :) Filed 13 January, 1877. L. 8S. B. Sawyer, clerk.
= es Certificate of olerk to judgment roll.
United States circuit court, district of California.
HARVEY W. RICE l
vs.
JOHN L. HEALD.
I, Lorenzo 8S. B. Siwyer, clerk of the circuit court of the United
8 HEALD VS RICE.
States for the district of California, do hereby certify that the foregoing
papers hereto annexed constitute the judgment roll in the therein-en-
titled action.
Witness my hand and the seal of said cireuit court this 13th day of
January, A. D. 1877.
|SEAL. | L. S. B. SAWYER, Clerk,
By J. F. OBEIRNE, Dep. OVk.
{Endorsed :) Judgment roll. Filed 13th January, 1877. L. S. B.
Sawyer, clerk, by J. I. O’Beirne, dep. clerk.
23 Bill of exceptions.
In the circuit court of the. ninth circuit of the United States of America,
within and for the district of California.
HARVEY W. RICE, ase leila
Us.
JOHN L. HEALD, DEFENDANT. 4
DEFENDANT’S BILL OF EXCEPTIONS.
se it remembered that, at the regular November term of the above-
named court, for the year 1876 A. “D., held at the city and county of
San Francisco, State of California, the above-entitled action on the 4th
day of January, A. D. 1877, came on reguiarly for trial before the court,
and a jury selected and impanelled totry the same, M. A. Whea-
24 ton, esq., appearing as counsel for plaintiff, and M. M. Estee and
John H. Boalt, esq’s, as counsel for defendant.
Whereupon the plaintiff, to sustain the issues onhis part, read inevi-
dence to the court and jury a certified copy of United States letters pat-
ent No. 146614, granted on the 20th day of January, A. D. 1874, to the
plaintiff, Har vey W. Rice, for an alleged new and useful improvement
insteam-boilers, a full, true,and correct copy of which said certified copy
is hereunto attached and marked Exhibit A, and made part hereof.
EXCEPTION No. 1.
Plaintiff next offered in evidence reissued letters patent No. 6422, re-
| issued and granted, upon the surrenderof said letters patent No.
2d 146614, to the said Harvey W. Rice, on the 4th day of May, A. D.
1875, a full, true, and correct copy of which said reissued letters
patent is hereto attached and marked Exhibit B, and made a part
hereof, |
Whereupon counsel for defendant objected to the introduction of said
reissued letters patent on the following grounds :
First. That said reissued letters patent did not describe, set forth, or
claim the same invention described, set forth, and claimed in the said
original letters patent.
Second. That the specifications and claim of said reissued letters pat-
ent contained new matter not contained in the specification or claim of
said original letters patent, and contrary to the statute in such case made
and provided.
26 But the court overruled the objection of defendant, and the said
reissued letters patent No. 6422 was thereupon read in evidence
to the court and jury.
To which ruling of the court counsel for defendant then and there
HEALD VS. RICE. 9
duly excepted, and tendered this his bill of exceptions to the court to
sign and seal, and the court did thereupon sign and. seal the same.
‘During the course of the testimony a model : of the boiler used by de-
fendant was introduced and referred to, correct. photographs of which
said model are hereto attached and marked Exhibit 1, and made part
hereof.
A model of the boiler manufactured by plaintiff was also introduced
and referred to in the evidence, correct photographs of which said
model are hereto attached and marked Exhibit 2, and made part
27 ~—shereof. .
A model of the boiler manufactured by Joseph Enright was
also introduced and referred to, correct photographs of which said
— are hereto attached and markeé Exhibit 3, and made part there-
O
A model of the furnace door used by defendant was also introduced
and refered to in the evidence, correct photographs of which said last-
mentioned model are hereto attached and marked [Exhibit 4, and made
part hereof.
T estimony y of Harvey W. Rice.
Thereupon HARVEY W. RICE was ealled as a witness for plaintiff,
and, being sworn, testified as follows: |
Question by Mr. WHEATON. Are you the plaintiff in this ease?
Answer. I am, sir.
238 Question. Are you the party to whom this patent was issued
that. has just been put in evidence ?
Answer. I am.
Question. What were the difficulties that you overcame, if any, by
your invention ?
Answer. The main difficulty was in preventing air from being ad-
mitted when the straw was admitted into the furnace. |
Question. Prevented it from being admitted where and how ?
Answer. Over the fire or into the place where we put the straw—into
the door or the hole where we put the straw in.
Question: What was the state of the art in regard to these straw-burn-
ing engines at the time that you made your first combination with re-
turn-flue boilers ?
29 Answer. We never had been able to keep up steam with them
sufficient to do the work that was necessary to do.
Question. What had been done up to that time ?~
Answer. We had used wood and coal. We never had succeeded in
using straw up to that time. |
Question. How much traveling have you done to investigate the sub-
ject ? ,
Answer. Well, I was constantly threshing, and was over the country;
was well versed in regard to threshing machinery. I had the first
threshing-machine engine that came on to the coast, | think, or one of the
first. |
~ Question. To what extent have you been through the Eastern and
Western States in connection with this?
30 Answer. IL have traveled over a great Imany of the Eastern
States. :
Question. When, at what time?
Answer. I was over a good portion of the Eastern States last winter.
Question. When before that, if at all ?
16 oo HEALD VS. RICE.
Answer. About 5 years ago. At that time I traveled over a great
many of the States and looked into threshing matters as much as I
could in travelling through. I traveled mostly horseback.
Question. Now, what attempts have been made, if any, to your
knowledge, to utilize straw in steam-boilers for fuel ?
Answer. Well, the most experimenting that I have seen has been in
Alameda County.
ol (Juestion. I mean prior to the time of your invention ?
Answer. Mostlyin Alameda County... What I saw there try-
ing I had tried several times myself and failed.
Question. What is the difference between the return-flue boiler and
the kinds that had been attempted to be used before ?
Answer. This boiler produces a better draft than the old boilers, and |
is more economical with fuel—any kind of fuel.
Question. What is the difference in the construction of them? Just
explain that to the jury.
The Court. Take a model and show to the jury what you mean by
return-tiue boilers, and what the ordinary boiler is.
Answer. (Illustrating with models. ) The ordinary fire- box ¢ or
32 locomotive boiler has the front dropped on this end of it. The
fuel is introduced on to the grates. It passes through. The
smoke-stack is on this end, and after it burns in the furnace and passes
through the tubes it escapes, and a great deal of sparks, and it has a
black ‘smoke; a great deal of the fuel is not consumed. In this style
of boiler the tube passes the whole length of the furnace through this
long space, the whole length of the boiler, passes back through the
whole length ofthe boiler to this end, and consumes the smoke and the
sparks almost entirely—so much so that there is no danger from fire in
the harvest fields.
Question. In passing through here, does it return back in the same
flue ?
Answer. No; it returns back in tubes around this furnace.
33 (Question. Here is where it returns, in this way, and it returns
back through those small tubes; is that what you mean ?
Answer. Yes, sir; and it consumes the fuel, so that there is hardly
any heat at the bae k end of the boiler. In the ordinary boiler we are
compelle d to use a draft; to use the exhausted steam that passes from
the engine into the smoké- stack to make a draft. In this we have al-
most a natural draft, and this, with a tube ora shelf or something of:
the kind to introduce the straw, is a perfect success in burning straw.
it can be done with as light or lighter engine than you can ‘do with
wood or coal.
Question. Whereabouts is the water in that engine ?
Answer. The water is in around the fire and around the tubes ;
ot the tubes pass through the water.
Question. That entire space between those two ends is filled
with water, is it?
Answer. Yes, sir.
Question. You used the expr ession * tube- sheets ;
what they are.
Answer. (Showing.) These are the ditesnianeta that hold the tubes.
This we call the flue or furnace, and these are the tubes, and the tubes
‘are fastened to the tube-sheets—passes through it and are fastened.
The tube-sheets are water-tight, and the fire passes through the tubes
and the water is around the tubes ; ; the fire passes through the furnace-
tubes.
se
show to the jury
HEALD VS. RICE. : 11
| Question. The fire going back and through those return tubes
30 —itis the heat passing through the same body of water that has
received the heat of the fire as it goes through the large flue in
the first instance ? 7
Answer. It is.
Question. The same body of water gets a double supply of heat?
Answer. Yes, sir. In introducing straw we found that my first ex-
periments was with an ordinary boiler, without anything but—or with
. this boiler rather—with this boiler without anything at this end ; with-
out anything but the ordinary door. I found that in introducing the
straw without having something to hold it, it did not work well; it
would not keep up the steam.
Question. Why ?
Answering. In introducing the straw, the straw would not re-
36 main therelong enough for us to get another forkfuil, and the cold
air going in would constantly ; we could always see that
our steam-guage would go down; we could not keep it up.
The Court. Where is the straw burnt ?
Answer. The straw is burnt on the grates. It is introduced here at
this end. There is a door we use, or we did use at first on our first ex-
periments; we used a door similar to this. We used several different
kinds. The first one that I put on was this kind, with a door that re-
volves. This door revolves, lets the fuel in, and then immediately
closes, so as to close off the draft. It was so arranged that as soon as
the straw is introduced the draft of air is immediately cut off;
og that gives time to get more straw. Afterwards we found that a
simple tube like that—this also is patented by Mr. Morey. In
the second case I put this on, and found it did just as well. This door
would shut down after admitting the straw ; this door would shut down
and cut off the draft. Afterwards we found that by having a tube
without any door in it, and by putting the straw into the tube and let-
ting it remain there, that the straw itself would cut off the draft of air
until we could get another forkfull of straw ; the last forkfull crowding
this, and burns on the grates. Others have found since that we could
use just a shelf—a simple sheif—in the place of the tube. Then others
do away with the shelf, and make a door like that (showing), but that
is similar to the shelf. Another manner of making it is, to make the
door so that it opens and. iorms the shelf after itisopen. Any of these
will do, and do well, but my experiments have been
38 The Court. Do you leave the straw on there, or push it
throrgh and close it ? :
Answer. No; we just leave it on there until we get another forkfull,
just the same as we do in the tubes precisely.
Question. The straw itself forms the stopper that excludes the draft ?
Answer. Yes, sir. We put on straw enough to keep this closed in all
the threshing. Sometimes you can leave this open and let in air, as in
burning fire-wood or coal. We open the door to let in cold air when
our steam 1s too high, but we found in crowding the work, or where the
work was extremely heavy, or in times when the atmosphere was bad,
that we were obliged to keep this hole closed most all the time, and it —
is closed by the straw. We would pile on a forkfuill of straw
3 here and push it in; when we start the next forkfull of straw
we put on here to close up the place; the next forkfull takes the
place of that and pushes the other in.
A JUROR. So that the draft is closed with the straw all the time.
Answer. Yes, sir. |
Wear emtd0 <r-sesenen Sopwonrwe by tak
oe Senet AeA ter maa oh 8 vn
12 HEALD VS. RICE.
Question. Then you are not using any of those devices?
Answer. We use all these; all these are used.
Question. If I understand you, the straw is the stoppage to the air?
Answer. Yes, sir; but we are obliged to use something here for the
straw to rest on. If we use an ordinary door like that (showing) there
would be trouble about using one of that kind.
Mr. WHEATON. Is that an ordinary door such as was used .
40 before yours ?
Answer. Yes, sir; different. This is a shelf on the inside. It
could be made that way; but without the shelf on the inside it would
constantly be catching fire here and would be dangerous. We found
it would be dangerous by trying to use it; it can be possibly be used
that way, but it would be very dangerous to use it; and it would not
be allowed in harvest fields. The trouble that I had was in setting fire.
In threshing with wood I burned up one separator and some grain, and
a good many others have been bothered the same way. The trouble
with threshing with steam in a harvest field is the danger of fire. With
these boilers and carrying the flame through with the tubes running
back a great deal of that danger i is obviated.
Question. Is it necessary to have some of those devices you
4] have named to succeed in holding the straw there in order to
make your engine saleable ?
Answer. We could not sell our engines without something of that
kind.
Question. What is the reason you could not? ?
Answer. They would be dangerous and we should not be able either
to keep up steam; not as well probably; could not keep up steam at
ali without them.
Question. | did any return-flue boiler engines made before that have
any device that could be used there and make them a practical success
for burning straw ?
Answer. Other engines? Other boilers?
Question. Were there any of these return-flue boilers prior to the
time that you made that combination so arranged that straw could suc-
cesstully be used as fuel for keeping up steam ?
42 Answer. Never were, no, sir; there was never but two of them
built on this coast, those I built about 13 years ago, but I did not
know how to arrange the straw feeding device.
Question. How long have you been a practical engineer ?
Answer. About 15 years, I think.
Question. Were you acquainted with the return-flue boilers made
throughout the world and exported—all the different kinds
Answer. I think so; yes, sir. I have always taken nae Scientific
American and other scientific papers, and kept tolerably well posted.
Question. And there were none of them ever made that you could
successfully utilize straw in without making some changes as to
fuel? ages
3 Auswer. I have never known of any to work successfully. I
have examined the English straw- burners and find they are not
a& SUCCESS.
Question. Now, in feeding the straw into the boiler, is the door 1 usu-
ally kept open or is it closed a part of the time ?
Answer. When we are feeding we usually keep the door open.
There is no use then there of a door, so far as burning the straw is
concerned, is there? :
Answer. Not when you are feeding; not when you are working. You
ed
HEALD VS. RICE. 13
slone the door when you get through or when you stop for any purpose,
or when your steam is too high.
Question. You close the door when you don’t want to burn straw ?
Answer. Yes, sir.
Question. But leave it open when you do not want to make
steam ?
44 Answer. You close it when you want to make steam in order
to introduce the straw and keep it going in a constant stream.
Question. You have to keep it going in norigtantty 4
Answer. Yes, sir; to close the door.
Question. To afford any time for shutting the door?
Answer. Yes, sir.
A JUROR. What is the main principle in your patent ?
Answer. It was in combining the straw-burner with this patented
arrangement of Mr. Morey’s with this boiler. This return-flue boiler I —
had supposed when I made the boiler that it was a new invention of
my own. Afterwards I found that these were nothing but the
45 old Cornish boiler.
Question. Return-flue boiler ?
Answer. Yes, sir.
Question. Then your patent consists of applying the tube ?
Answer. Of applying this tube or any device to aid in keeping the
straw; a Shelf or any arrangement whereby the straw can be kept on
there and made to exclude the air while the straw is being admitted.
Another JUROR. It is a constant feed all the time? _
Answer. Yes, sir; very near constant. We have some places on the
coast where it is damp, where it is as much as we can do with the ordi-
nary sized boiler to feed it.
Mr. WHEATON. Is there any chance to shut the door while
46. you are feeding straw?
Answer. No, sir; we never have time. There are a great many
places where we don’t have time to turn around or look.
Question. What is the result of your invention in practice ?
Answer. After I introduced the first two the first season, the next
season they became used throughout the State. The next season there
was nothing else used, or hardly anything else. Nearly all of the old
style of boilers were exchanged or sold.
Question. Have you been travelling g and selling straw-burning boilers
throughout the State ?
Answer. I have for pretty near three years.
: Question. I will ask you whether it would be possible to sell
47 to anv grain thresher a boiler for burning straw unless it was a
3 returning- -flue boiler? :
Answer. We don’t find any one that wants them unless they can be
obtained for a good ~— less, probably a third less, than what they would
cost; very few cases even where they would. They won’t use them ;
fuel is so much handier, being near the work.
Question. You spoke awhile ago of sinders and black smoke com-
ing through. Is there a substance to that black smoke that will make
a flame ?. |
Answer. Yes, sir.
Question. If that is kept in the boiler long enough and hot enough,
will it all consume ?
Answer. Yes, sir; in case of burning wood in one of these boilers,
you never see any black smoke come from it. In the erdinary
48: _— boiler you would see black smoke coming out.
RICE.
HEALD VS.
Question. What do you mean by the ordinary boiler ?
Answer. The locomotive or fire-box boiler.
Question. That is, where the fire only goes through it one way ?
Answer. Yes, sir.
Question. What means have you of knowing, if any, what the de-
fendant made prior to January 12th, 1876, and after the issuing of your
patent? |
Answer. I saw some of his boilers.
Mr. ESTEE. Speak a little louder, please.
Answer. I saw some of his engines.
Mr. WHEATON. Has he informed you what he made?
49 Answer. He has. |
— Question. How many did he make after the 4th day fo May,
1875, and before the 12th of January, 1862
Answer. He made six.
Question. How were those made? 7
Answer. He made the boiler the same as this one (showing), or the
same as those that I made, substantially the same thing; some little
different proportions.
Question. What did he put in for a mouth- -piece for the straw, if any-
thing 4
Answer. He put a tube similar to this (show ing), with a door inside
of the tube; door or valve. |
Question. Did those engines have the return- flue boilers ?
Answer. Yes, sir.
50 Question. Have one large flue as shown in that?
Answer. Substantially the same as this.
Question. Well, just tell, as near as you possibly can, how they
were; not as a matter of opinion, but if there is any difference tell
where it was.
Answer. There is no difference except as tolength. I believe he
made his boilers a trifle shorter and the tubes smaller.
Question. Made his boilers shorter and tubes smaller ? .
Answer. The return tubes, I think, he put in two-and- one- fourth- inch
tubes, and I put in two- and- one-half-inch tubes. I think that is the
case; [ am not positive. It was substantially the same boiler.
51 Question. Did it have one large flue in the center, that the
flame went through in the first instance ? |
Answer. Yes, sir.
Question. And then returned back ?
Answer. And then returned the same as this.
Question. His mouth-piece for feeding in the straw was a tube?
Answer. Yes, sir.
Question. Do you know whether he disposed of those boilers; did
he tell you; has he them yet?
Answer. Yes; he told me that he sold the boilers.’
Question. Have you seen any of them in the country in use since?
Answer. I have.
52 Question. They were disposed of and went into use. Were
they good boilers; did they work well?
Answer They did. They were highly recommended by the farmer
that has them.
Question. Have you been engaged in the manufactory and sale of
these boilers? :
Answer. I have.
Question. How were they sold for use? Is the engine attached to them
or not? What shape were they put up in?
HEALD VS. RICE. | 15
Answer. With the engine attached. They were all sold with a port-
able engine or a a-threshing engine fastened to them.
Question. How are those removed from one place to another ?
Answer. By means of horses or mules. F
Question. On wheels?
53 Answer. On wheels; yes, sir.
| Question. The boiler is put up on wheels?
Answer. Yes, sir.
Question. A regular wagon of itself ? }
Answ er. Yes, sir.
Question. And the e1 gine is on the boiler
Answer. Yes, six.
Question. Now, in your making and selling of those boilers, what
was your profit for e: wh one, if anything ?
Answer. I did not sell it separ: itely.
Mr. BOoALT.. What. is the answer?
Auswer. I did not sell any boilers icmeiin from the engines, |
54 think, unless it may haye been one.
Mr. WHEATON. We have got to get atit somehow. Make it up
the best you ean.
Answer. The profit on the whole machine is from $700 to $800.
Mr. Ester. I did not get that answer.
Answer. The .! rofit on the machine—the boiler and engine complete—
would be from $700 to 800. There have been changes on the material.
The Court. What we want to get at is the value of your invention
not the whole machine, because anybody can make the engine.
Your improvement here is this combination of the boiler with the feed-
ing apparatus; that is your machine. What is the profit on your in-
vention ? ioe
Answer. The boiler costs me now $290.
Mr. WHEATON. How?
Answer. $290, the mere boiler alone.
Mr. ESTEE. | did not understand you.
Answer. The boilers now cost me $290, to take them. When we sell
a boiler alone we sell it for $700. They have been sold at that this
summer, the boilers that I had built last vear by M. C. Hawley & Co.
Mr. WHEATON. The profit on the boiler, with that connection, is how
much ?
Answer. $410, I think.
Question. What species of money, if any?
Answer. It was in gold coin.
6 Question. Does this combination of this feeding dle ‘vice to the
return-flue boiler control the sale of the entire machine, engine
and all, or not?
Answer. It does.
Question. Whatdid the defendant sell, this boiler and feeding device ?
Answer, The engine that was attached to the boiler and the wheels
that carry it; what we call the running gear.
Question. It was an entire machine made of the same as. yours was?
Answer. Yes, sir. 7
Question. And they were sold univer really in that shape when sold,
the machine and boiler together? _
Answer. Yes, sir. Itisa threshing engine comple te.
D4 Question. It is a portable engine, as it is called ?
Answer. Yes, sir, a portable threshing engine.
16 7 HEALD VS. RICE.
Question. Would there be any sale among the grain threshers for the
engines alone without the boiler? |
Answer. No, sir, we could not sell any engine.
Cross-examination : :
Mr. ESTEE. How long have you been in California ?
Answer. I came to California in 1852.
Question. Have you been here ever since?
Answer. Excepting two years.
Question. Those two years you were East?
Answer. Yes, sir.
Question. What two years were those ?
Answer. 1857 and 1858, I think.
Question. What has been your business here?
Answer. I have been a farmer and thresher.
Question. How long have you been engaged in engineering ?
Answer. 15 years, T think—it is 18 years; I will correct the state-
ment—18 years that Ihave been using portable engines.
@uestion. Lunderstand you have been using por table engines, but
have you been engaged regularly inengineering as a business for
59 18 years, or have you been farming and engaged in other pur-
suits ?
Answer. A part of this time I have been farming tn connection with
my business, and a part of the time I have been taking charge ofa saw-
mill that I had. 7
Question. Whereabouts was that?
Answer. In Lake County.
Question. When was it you first saw a return-flue boiler?
Cr
Answer. The first one I ever saw was, I think, 14 years ago; the one
that I first made.
(uestion. Was it just like these?
Answer. Y es, sir, just like this one.
Question. W hat do you mean by return-flue boilers; the whole ap-
paratus? We will take of’ the feeding but everything else.
GO Just take that feeder right out (show ing). Is there anything about
the return-fiue boiler ?
Answer. Not in the invention, I think. :
Question. Or in the manufacture, or anything about it ? Is there any-
thing new about that boiler?
Answer. I don’t think there is. I don’t think there is anything vatent-
able. 7
(@uestion. I am not speaking howeven patentable. Isthere anything
new about it at all, except possibly it may be this feeder?
Answer. With this off you mean (showing) ?
Question. With this off. 7
Answer. And an ordinary door? Yes, there is this
Question. | understand. But a return-flue boiler is a boiler well
| known in mechanics. :
61 Answer. Yes, sir.
Question. It is an old mac hine, an old invention, is it not?
Answer. Yes, sir. .
Question. Then all that business about big tubes and little tubes, and
about there gvoing to one end of the boiler : and coming clear back, all
that is old, is it?
Answer. Yes.
Question. You did not invent any of them, did you?
Ans"
previo
jn exis
Que
62
suital
have
suita
AY
simil
‘
e
17
d it but 1 foun d some one had invented it
+ that there Wa* such a thing 19
ade 1 that t
ame sea-
‘RICE.
HEALD V8.
pswer. YeS, iv; Limv vente
+ know when 1 m
vious. | did no
xistence:
yuestion. You do not claim? |
Answet. No, sit: ee
Questi Then a rewurh -flue bol jer is old? Now Mr. Rice, I | others,
yead from your original patent, Ge” d November 373; ‘ANY
itable feeder May b employed to supply the straw the erate, put L ortables
ive found the device patent ad by Morey, dune 20, 187 3, to be very
Litable. Vhat was that device’ wx to 15
Answer. It was @ tude with a box door. Here (showing) is the fac-
‘mile of the first one put on te
Question hat is the grst one? m1?
Answer. +©*) gir; the same year, afkerwal ds, 1 ee on this one-
Questiol ow about that? >6 ors
Answer. That (showing) one; that s5 the same as that.
Question. That 1s ag gills u are using DOW
‘ Answer. No, t you?
63 Question. We aM, t ‘that is the — e you did use originally 7
Answer: Yes, sed that and this— 3 —those two.
uestion Well, that was the } » Morey syvention, was it
Answer. Yes, sit. ad he
Question. You call that, 100 ‘ a return-fiue poiler ?
Answer. Yes, sit.
Question And you did that at the time and prior to your getting
your paten :
Answer. YS; sir. | a IDES 5
Question. And that +3 what you refer to in JY our orig ‘inal letters pat-
ent, is it? y was
uaa Answer Yes, :
64 Question Mr. Mor ey sald sntroduced that tube into the boilers, ' did
yad he?
Answer. He haa. as a
Question. For purnings straw ?
Answe e told m ad.
Question. We 1, hee hibited it to you ‘in the presence of other per
sons in this city rid he not! pat-
Answer. Yes, sit.
uestion- And showed you how it W orked ?
Answer. es, Sil. you
Question. Then you applied it to this return: Aue poiler ?
Answer. 18; sir. red
Question t+, was pefore you got ¥ r atent ? Now, then, t that at-
includes the yeturn-fiue poiler and the tube. OW, what else is ter
g5 _—sthere 1 machin hat you I tented that ‘5 different from ny
the return-fiue poilers ? ae it
Answer. Well, it is the device by which you can take out— re
Questi What have you got that you put in the return-filue poiler
that were not in the nal fue boilers that are old, except the orey |
atraw-fee er? m
Answer. A ring put around thi poiler-hea _this tube sheet—making p-
this smaller, * at furnace 4 ubes can be taken out rs
or the purpose of cleanitg; ig it uot! ‘a
l-
18 HEALD YS. BICE.
Question. Now I will read the second claim in the reissuel patent,
and see if that is it. (Reads.) That is it, is it not?
Answer. That is it; yes, sir. |
66 Question. That is the head there,.if you will show it to the
jury. There is a ring goes in here.
Answer. Yes, sir.
Question. And the head will come out so you can clean these two.
Do you claim that Mr. Heald, the defendant in this suit, has infiringed
that part. of your patent; that ring and adjustable head ? :
Answer. I do not think he has. I donot know that he has. You
refer to the ring, do you not?
Question. Yes, sir; the second claim in the reissued patent. Then
you do not claim then, as I understand you, that you invented that
tube for burning straw ?
Answer. I did not.
7 @. You don’t claim that you first applied it to a boiler. Morey
67 first applied it to a boiler ;. Morey first appiied it to a boiler; did
ee he not? | 3
Answer. To the ordinary boiler; yes, sir.
Question. Now, will you please tell the jury what you invented, in
your own language ? ¢ |
Answer. I took the Cornish boiler, this return-flue boiler—sometimes
called the Cornish boiler; took this tube and box door of Mr. Morey
and put it on to it in different forms, and found that it was a success.
There is no other change I made except making the grates different ;
nothing else. 3 |
A Juror. Did not change the tubes, only the grates ?
Answer. Nothing but the grates. No, I did not change Mr. Morey’s
tube, not until afterwards. I put on a different kind of a tube without
any box door in it.
68 Mr. BOALT. Without any box door in it?
Answer. Yes, sir.
Question. That was a peculiar idea of the first tube, was it not?
Answer. Yes, Mr. Morey’s tube had the door in it. |
(juestion. That is the one he patented ?
Answer. One of them; one had the revolving door.
Mr. ESTREE. Mr. Rice, then, as I understand you, what you invented,
if you invented anything, was to attach Morey’s tube for burning straw
to a return-fiue boiler ? 7
Answer. Yes, sir.
Question. Was there any part of that return-flue boiler originally in’
you—did you invent it? | :
69 Answer. I believe I answered you before, that I invented it
but I had no right to patent it. | 3
Question. Was there any part of that straw-tube yours ?
Answer. It was not; no. 3
Question. Had not the return-flue boilers been used for all purposes
known to mechanics from the time they were first made, a great many
years ago, and vacated and used for every purpose for moving ma-
chinery ? wees :
Answer. No, sir; I don’t think they were ever used for portable en-
gines. . om
Question. Well, you saw one, a portable engine, 15 years ago that
' you made yourself? | . |
Answer. Yes, sir.
Question. Then there is one?
HEALD V8. RICF, 19
70 Answer. Yes, there is one and one more I made the same sea-
son.
Question. Well, you have since found out that there were others,
have you not?
Answer. Yes, sir; no, not portable. I had never seen any portables
until——
Question. (Int’g. ) Don't you ‘know of portables existing prior to 15
or 16 years ago? |
Answer. Not made that way; no, sir, ! don’t.
Question. Well, they had been used anyway; you had nsed Ziiem ?
Answer. Yes, sir.
Question. And had not patented them and used them for 5 or 6 or 8
years without patenting them?
Answer. Yes, sir.
“i Question. And introduced them into publie use, had not you?
Answer. Yes, sir; for burning wood and coal.
~ Question. You burnt wood and coal in them, did not you?
Answer... Yes, sir.
(Question. Now, this pipe or tube of money's he had used too, had he
not, for burning straw? |
Answer. He had-experimented with it.
Question. He had practically and actually used it, had he not?
Answer. Not:to do work with; I think not; no, sir.
Question. Don’t you know that he had used it on several engines ;
several boilers ?
Answer. I know that he had experimented with it, but he was
72 ~~ ~=unsuecessful.
Question. Now, what did you do? Tell the jury what you did
that was invention in making g it a success.
Answer. I took his tube and attached it to this boiler, and it was a
success.
Question. What part of that act was invention? Tell the jury.
Answer. Combining the two together.
Question. What act in adjusting Mr. Morey’s tube that he had pat-
ented to an old return flue tube was invention ?
Answer. The combining the tube and box door to the boiler.
Question. Just show the jury what was done, how you did it, how you
rivetted.
Answer. In one case, the first. case, I took this and attached
73 it to the door (showing) ; took off the door of the boiler and at-
tached this to it with bolts and bolted iton. In the next case, after
I found this worked, I took the other one that Mr. Morey had left at my
place, carried it out to the fields and attached this one, Which made it
a success. These two engines were used during that season, and were
a perfect success ; the first that ever had been used.
A JUROR. Mr. Morey left these ?
Answer. Yes, sir; he left both of them with me. He brought them
‘tomy place. I applied this one first. Il afterwards took this and ap-
plied it, the first that straw has ever been used as a success in boilers
that I know of.
Mr. ESTREE. Mr. Rice, did not Mr. Mor ey come to you and
74 did not he, Mr. Morey, adjust that pipe to those engines him-
self ?
Answer. He did not.
Question. It was done in his presence, was it not?»
moe Pt S.A AEM dp eg Re pak rosaries me sone S ppt eS
~ Pe tae pee en Sea ewer ates Soot J F ee
20 HEALD VS. RICE.
Answer. I think not; no, sir. I think he was there a part of the
time. I do not think—no it was not put on in his presence.
Question. It was not put in his presence ?
Answer. No, sir; the trial of the engine was in the field; in 1 the
harvest field.
Question. Now, if a skilled mechanic had one of those return-flue
- boilers, and knew that it worked just as you know that it worked, just
as any skilled mechanic must know that it works; and if he had
75 one of Morey’s tube’ that Morey had invented, and knew that that
worked for feeding straw, I want to know of you if it would be
the exercise of more than ordinary skill, that is, if a person skilled in
this particular art, to adjust one to the other ?
Answer. It is an easy matter to put on the tube, but to understand
what kind of a boiler to put it on to, I think, requires more than ordi-
nary skill.
Question. Well, what invention is there in finding out what boiler to
put that on? Now explain that to the jury.
Answer. When Mr. Morey came to my place he was very anxious to
put it on to another boiler, a common boiler. I took it and put it on
this boiler. If he had put it on the other boiler it would not have been
a success any more than when he put the others on.
76 Question. Would it have been an invention, or was it an in-
vention, to put it on an upright boiler or a square-box boiler, fire-
box boiler ?
Answer. If it had been been a success it would.
Question. I am not speaking of success.
Answer. Yes, sir; itis an invention to put it on to any boiler.
Question. It is? That is your idea of invention, Mr. Rice ?
Answer. I should judge so.
Question. We will suppose you have an ordinary fire-box boiler. This
is a return-flue boiler, but where the fire is put in at one end like this
end built here and the smoke and fire taiesaiae at the other, would it be
an invention to put that in there?
._Answer. I put this tube in?
Question. Yes, sir.
77 Answer. It would.
Question. It would ?
Answer. Most assuredly.
Mr. ESTEE. Mr. Rice, then you regard it as an invention adjusting
that tube to any boiler, that Morey tube ?
Answer. Yes, sir.
Question. Any different kind of a boiler ?
Answer. Yes, sir.
Question. Now, will you tell the jury what kind of an invention Morey
made that he invented ? |
Answer. Mr. Morey first invented the tube with the valve door and
the tube itself without a door.
Question. What for? What did he do it for ?
738 Answer. For the purpose of burning straw ina portable en-
gine.
Question. That was before you used it, was it not?
Answer. Yes, sir.
Question. Return-flue boilers were in use at that time, were they
not?
Answer. These two were in use; that is all that I know of.
HEALD VS. RICE. 21
Question. You know they were in use; you have since he: ed that
they were in use elsewhere ?
Answer. Not portables.
Question. But, then, they were in use, were they not ?
Answer. I think they were ; I know they were. |
Question. Now, that was the invention of Morey ; he invented
79 that. Did he do anything with it after he. invented that tube
and that door, &e.? Did he do anything with it? Did he just
leave it out on the street, or did he adjust it to ‘something ?
Answer. He adjusted it to boilers and tried it. I found it would not
work, and took them off.
Question. What kind of boilers did he adjust it to?
Answer. Common locomotive boilers—five-box boilers.
Question. And it did not work? Where wasthat? Whereabouts in
this State ?
Answer. That Mr. Morey tried it?
Question. Yes, sir.
Answer. Well, that is hearsay. I heard that from Mr. Morey when
he tried it. He tried it at Hollister and near Waterville,
SO and other places.
Question. How many patents did Mr. Morey takeout? Do you:
know? i
Answer. Three—two and had one reissued. :
Question. Do you know what they were for?) Could youdeseribe them
without reading them? i
Answer. Well, I read his patents; they were for preventing a draft
of air while feeding straw in the boilers.
Question. Do you know whether Mr. Morey limits theuseof his straw
attachments or straw burner to a door, to a fire-box boiler! :
Answer. In a patent?
Question. Yes, sir.
Answer. You have the patent before you. Ido not remember about
that.
$1 Question. Well, Iw ant to ask you if y ou know w hether he does.
Answer. I don’t think he does.
Question. Then if he does not limit it to any boiler or to a fire-box
boiler, would not he use it in a return-flue boiler?
Answer. I don’t know, [ am sure. Perhaps I do not understand the
question. If you are questioning on a matter of law, I know nothing in
regard to that.
Question. Mr. Rice, I will read you the specifications forming a part
of letters patent 155569, dated February 11th, 1873, issued to David
Morey, of Watsonville, and then I will ask you W hat you have in your
patent that you invented that was not in Mr. Morey’s patent. (Reads
from Exhibit ©. ) Now, Mr. Rice, tell the jury what there is in your so-
called invention that is not in Morey’s patent; this patent that I
82 have read—his only one—one of February 11th, 1873. I can give
it to you, and you can look at it if you desire.
Answer. This is a patent that has been reissued; has it not?
Question. That is before the reissue.
Answer. Yes, before a reissue. This is the first patent.
Question. That is the first patent.
Answer. This apparatus when applied to the common fire-box boiler
will not work.
Question. That is not an answer to the question. What is there
what you have invented in your so-called invention that is not in that
22 : HEALD VS. RICE.
patent, except the ring there—I admit the adjustable ring, the end of
those tubes for fastening tubes—sheets—what is it?
83 Answer. In putting this 6n so, this return- boiler (showing).
Question. What is it?
Answer. The putting of this on to the return-boiler.
Question. Is not that the same combination that Morey patented ?
Answer. Never, because Morey had put them on to a common boiler
—a common fire- box boiler.
Question. But it does not say so. He says on to any steam-boiler ;
does not he?
Answer. It would not work. He has not made it work, nor has any-
body else.
Question. He says in combination with a steam-boiler furnace.
Mr. WHEATON. That does not include return-flues.
Mr. ESTEE. Isnot the return-fiue boiler a steam- boiler fernace' }
84 Answer. Yes,sir; itisasteam-boiler. A wash-boilerisasteam-
boiler.
Question. Then, why is it not like yours ! ?
Answer. Well, it is very different from this boiler.
Question. Were they not in use at the time, both of them?
Answer. You will find it is very different, if you go out and attempt
to fire one.
Question. Well, is not the combination exactly the same?
Answer. I never put but one, I think, on to a common boiler.
Question. No, but is not the combination exactly the same as de-
seribed in Morey’s patent, and that you claim in your patent ?
85 Answer. They go on the same. We put them on the same, or
about the same way.
Question. Is it not the same combination with the exception of the
means of fastening the tube-sheets ? |
Answer. I should judge it was the same. It won’t work.
Question. Now I wish to read you the second Morey patent. Judge
Boalt will read it.
Mr. Boat. I will read simply the claim.. The patent is the reissue
number 6420 of letters patent, number .135559, dated May 4th, 1875, to
David Morey, Watsonville. (Reads from Exhibit E.)
Mr. ESTEE. Now, Mr. Rice, is not that your combination exactly that
you have adjusted ?
Answer. No, sir. |
86 Question. Well, let me read the other. (Reads from Exhibit
E.) I will ask youif that is not afac-simile, so far, as it has gone,
of yours.
Answer. The straw-feeding attachment is the same.
Question. Sir? : |
Answer. Yes; the straw-feeding device is the same.
Question. Well, in connection with the furnace the whole thing—the
combination—is it not the same? |
Answer. With this or any other boiler, do you mean ?
Question. Yes, sir; this or any other boiler in the world.
Answer. Combination is the same, but it won’t work.
Question. Now we will read the second; second in combination with
the furnace A. Show the jury what the furnace is: “Of a
Sis threshing engine, the box ortube B * * * * having the par-
tition or door C.”. Whereisthe door? There used to be a door
in there. :
Answer. Yes, sir.
HEALD VS. RICE. | 23
Question. You sometimes have a door, don’t you; or you used to have
a door in yours, didn’t you?
Answer. I did in the first patent.
Question. “Substantially as and for purposes set forth.” Well, that
covered your first doors, did not it?
Answer. Yes, sir. The first tubes we had—the Morey straw-burner,
just as he makes them.
Question. Now tell the jury, in your own way, if there is anything
in the world in your combination that is not in Morey’ 8s, excepting only
the means of fastening those tube sheets, which we said we did not in-
fringe on. |
83 Answer. Very different, sir. Mr. Morey attached his to a com-
mon locomotive fire-box boiler. I attached the Morey straw-
burner to this particular boiler, and’ it was a success.
Question. Does Morey say he attaches it to a common fire-box boiler,
_ or any other kind?
Answer. He don’t say. Youhaveread that. You have that informa-
tion there without my giving it.
Question. How can you limit Mr. Morey to a fire-box boiler, as long
as he says to all boilers ?
Answer. Mr. Morey never attached it to all boilers.
Question. I am speaking of his patent; what he describes in his
patent.
Answer. Mr. Morey never attached it to a boiler
89 Question (Int’g). 1 am speaking of what he describes in his
patent. . |
Mr. WHEATON. The patent shows for itself.
Mr. ESTEE. I am examining the witness and not the patent.
The Court. I think you have spent time enough on that. It is a
matter of construction what patents are.
Mr. ESTEE. All right.
Question. What is the difference between the Morey patent of May
20, 1873, and February 17, 1873, and the Morey patent of April 8, 1875,
if ‘you know any difference between those two patents?
Answer. If I understand it, the first patent was this revolving
90 door with the cams, and the last patent was just the tube alone : :
on the tube with the door, if I understand it correctly.
Question. Well, what was the object of that? |
Answer. Of the tube; of the invention, you mean? The object was
to keep air from entering with the straw; to prevent-a draft of air.
Question. How many of the Heald boilers did you ever see, Mr. Rice,
and where were they?
Answer. I have seen 4 or 4h 6, I think.
Question. Where were they ?
Answer. I saw one at Heald’s shop, and I saw more; I saw some at
Mr. Heald’s shop more than a year ago; the first lot that he made, the
year that he made the six, the first season.
91 Question. You saw them at his shop?
Answer. I don’t think I saw them all. I saw three at Dan
McCreary’s, at Bridgeport, near Suisun. I saw
~ Question. Describe those you saw at Heald’s shop.
Answer. They were this same boiler. The boiler was made like this;
similar to that one you have there, I think.
Question. (Showing.) Is that it? And if it is not, tell the jury
wherein it is not. — |
Answer. This is different from the ones that I saw; I never saw one
24 HEALD VS. RICE.
like this. The boiler is the same, but the straw device is very different.
Mr. Heald, on the boilers he made, put a tube on.
Question. Do you say you saw any at Mr. Heald’s? Where did |
2 you see one with a tube on, of Heald’s?
Answer. I saw one at the farm of Dan McCreary; ; that I saw
the tube lying by the boiler; it was taken off. Mr. Heald told me that
he put on tubes. I think he said onto both of Dan McCreary’s boilers.
He told me that he put‘it onto one, that I am certain of. I saw the
tube lying there that he had taken off, and he had substituted for that
another kind of door, a door that opened upwards. It made a shelf
when it
Question. Did you ever see one of Mr. Heald’s boilers with a tube
on it?
Answer. I did—no, sir, I never saw one with a tube on it.
Question. Did you eversee oneof McNeal’s boilers with a device
93 that was the equivalent of a tube, such as that Morey patented ?
Answer. I saw them with this shelf door; that is equivalent to
the tube. :
Question. I want to ask you if that identical door has not been in
use in that kind of engine from the time that engines was first made;
to your personal knowledge, so far as you know, so far as you can re-
member back ? |
Answer. No; I don’t think that that door has been used.
Question. Well, did Morey use it?
Answer. I think that is an inv ention of Mr. Heald’s; some features
about that door. 3 |
Question. That is a vibéaceiet door; but the door that you referred
to, wasn’t it a common fire-box door, such as is used ? :
Answer. No, sir; it is not common.
94 Question. It was not common?
Answer. No, sir.
Question. Haven’t you seen it before ?
Answer. No, si
Question. What were the features about it that was different from
an ordinary door to an ordinary engine ?
Answer. (Showing.) This door has all the appliances
Question. (Interrupting.) No, that ain’t the one. I want the one that
you saw on Mr. Heald’s engine.
Answer. This is it. This is the one I saw on his engines. I saw one
of these in San Ramon Valley, and I saw that one working. No, sir;
the one that I saw in Ramon Valley was like this (showing). It was
just a shelf alone.
95 Question. Now, with that door, just as it is there ?
Answer. Similar to that ; substantially the same.
Question. Isn't that door a common device used in engines?
Answer. No, sir; never, except a straw-burner engine, that I know’
of.
Question. Never, except it is a straw-burning engine ?
Answer. No, sir; that shelf would be in the way in a common engine.
It is used for the express purpose of using straw.
Question. How many did you see that in of Heald’s ?
Answer. I saw that in one; a machine owned by Mr. Bent.
Question. Did you ever patent that, or any other device for
96 burning straw ?
Answer. The only patent is this one patent; that is all I have
patented, sir.
len
_ ~~
«
HEALD VS. RICE. a
Question. Did you ever patent any door or any device at all for put-
ting straw into a boiler ?
Answer. No, sir; this is the only patent I have.
Question. You never saw one of Heald’s engines with a tube in it,
‘did you?
Answer. No, sir; I know he had a tube in.
Question. In how many, and. where?
Answer. I know that he had a tube in two.
Question. Where were they ?
Answer. One of them was at Dan. W. Crearey’s; I think two.
97 Mr. Heald told me himself that he put the tube on to two. I
was under the impression he put the tube on to the first six he.
made. |
Question. What tube was that?
Answer. (Showing). That is the tube. The one that I saw had the
valve-door.
Question. It was the tube iuiieeabial by Morey, was it?
Answer. Yes, sir. |
Question. Was there anything else about that? Was there any-
thing that you invented about the. engines that you ran, ordinary
boilers ?
Answer. Yes, sir; the applying of the tube to the boiler was my in-
vention. |
Question. Applying a tube to what boiler?
98 Answer. To the return-flue boiler; this kind of boiler.
Question. Now tell the jury what you mean by applying that;
just fastening that tube to that?
Answer. Yes, sir; when I attach this tube there and make it a sue-
cess, and make it burn straw, the patent laws entitle me to a patent on
this, and I have that patent.
Question. You saw the boiler to which the Morey tube was attached,
| didn’t you ?
Answer. } No, sir, not the boiler that was first; no, sir, I did not.
Question. You saw the boiler, the return-flue boiler, the first that
you attached; you saw it?
Answer. Y es, sir; that is the first one that was ever attached that I
know of.
OY Question. Describe to the jury the door there was to that
boiler before you put it in the tube.
Answer. There was a door similar to this for burning wood (show-
ing).
Question. A door to what?
Answer. The door was similar to that for burning wood, except this
shelf. This shelf was not in, and the grates were differ ent. It was for
burning wood. This (showing) was not in.
Question. You just took that door out, and just put this on (show-
ing)?
Answer. Yes, sir. .
Question. The door was there; you just nibiaaed that door, did
you? |
Answer. Yes, sir.
Question. And then put Morey’s tube into it?
100 Answer. Yes, sir; I put a tube here, and attached this to it
(showing). |
Question. That is all you did?
Answer. Yes, sir.
26 HEALD VS. RICE.
Question. Have you sold any reyalties for your patent?
Answer. Yes; I have.
Question. Have you received any royalties, or made any arrange-
ment or contract to receive roy alties ?
Answer. Yes; I have.
Question. With parties other than the defendants in these suits?
Answer. Yes, sir.
Question. Did you make any arrangement with Ames & Co:?
Answer. Yes, sir.
Question. What was the royalty you charged them ?
Mr. EsteEx. You had entered into an arrangement with Ames
101. & Co. to sell them the royalty for scenmeieaaiteen your ma-
chine ?
Answer. Yes, sir.
Question. What was the amount per machine that you were to re-
ceive ?
Mr. WHEATON. Was that in writing ! ?
Answer. Yes, sir.
Mr. WHEATON. We object to oral evidence, then.
(Objection sustained; defendant excepts.)
Mr. ESTER. Well, Mr. Rice, you state that you have been selling
these machines in this State. I will ask you if you received profit for
the sale of these machines in this State, or if you have not sold
102. your patent and all the rights under it to Hawley & Co., of this
city ?
Answer. Heretofore I have recei ived profits, but I have sold the right
to Messrs. Hawley & Co.
Question. I w ill ask you when you made that sale?
Answer. I think it was nearly a year ago. I have means of finding
out, and I can tell you the exact date.
Question. How long was it before the commencement of this suit ?
Answer. I do not remember exactly. oon
Mr. WHEATON. Let him bring his assignment, and that will tell.
Witness. | could not give you the positive dates. I can find them
for you.
103 ‘this suit? |
Answer. I sold before the commencement of the suit.
Question. I will ask you if that contract was made in writing ?
Answer. It was. :
Question. Have you a copy of that writing ?
Answer. I have.
Question. The original copy made by you to Hawley ?
Answer. I have.
Question. Will you produce it at-the next session of the court?
-Answer. I will. |
Question. Have you it with you?
Answer. No, sir; I have not.
Mr. WHEATON. Mr. Hawley has his. We will have them
104 here in a little while. Be
Redirect examination :
Mr. WHEATON. As to those two return-flue boiler engines to which
you attached these tubes or devices, what became of then
Answer. The two boilers ?
Question. Yes,
Mr. ESTEE. Was it before or after the commencement of
HRALD VS. RICE : 27
Answer. The.first is in Hayward’s at my place; the one that has been
used 14 years. The other one has been used 13. That is at Half-moon
Bay, near Blanco.
Question. That is, the boilers themselves were used this great length
of time?
Answer. Yes, sir.
105 Question. But after these attachments were put on, what was
done with the second boiler? The first one you say is still at
your place.
Answer. The second one was ened in Livermore Valley and went to
the Salinas after that and was used there.
Question. Who took it to the Salinas?
Answer. Mr. Anway.
Question. Now, in in this Morey patent, is there a word in that about
using this device with return-flue boilers ?
Answer. No, sir. |
Question. When did you first have a conversation with Mr. Heald
about these straw-boilers ?
Answer. I think it was in the spring of 1875.
Question. Was that before or after he had made them ?
106 Answer. It was before he had made ; it was at the time
he was starting in to build his boilers. He came to my shop
twice and questioned us about the boilers and about the suecess of
straw-burners and how we were building ours, and looked at the boiler
and looked at our machinery and examined the whole affair ov er, and
said he was going to make straw-burning boilers also, and engines.
Question. At what place was that?
Answer, Hayward.
Thereupon DAVID MOREY was e¢alled and sworn as a witness for
plaintiff, and testified as follows:
107 By Mr. WHEATON: Are you the David Morey named in United
States letters patent number 139075, dated May 20th, 1873, and
in the letters patent number 135659, dated February 11, 1873, and re-
issued May 4, 1875? .
Answer. I am.
Question. Please state to the jury fully how far you had gone towards |
making those straw-burning boilers a practical success.
Answer. Well, I had commenced to experiment in 1872, and I worked
with one boiler—what they call a fire-box.
Mr. WHEATON. Speak louder.
Answer. In 1872 I commenced to experiment with it and worked
along; in the first place I had a machine, a device. I was under the
impression that I would have to twist straw up in the shape of
108 =a coil to burn it, make it in the shape of wood, and [ had made
quite a machine to accomplish that point, and when I came to
try it I found that straw was too dry in this country to twist it; it
would just grind up into small bits like chaff. I laid that one oneside
or at least T took it home and I reduced it, that is, I made the aperture
tor the straw to come out about ten inches then, so it would not break
it up so fine, and I took it out again and tried it. I found that I could
generate a very. good head providing I would keep the hopper full of
straw. so that the wind should not draw in over the top of the fire.
Sometimes I stopped feeding and thought “Now let it burn awhile,”
but found out that this machine would be running around and strew-
OP ace ane tenes
28. HEALD VS RICE.
ing the straw and get empty, and the moment the straw was out
109 of the hopper the steam would begin to fallon me. Well, I took
ithome. I was satisfied that I had then discovered that straw
7 heat enough in it. My object in experimenting, in the first place,
as I was in the saw-mill business and we make s: iw -<lust do our burn-
ing, that is, generating of steam, and the idea struck me that straw
ought to do the thrashing. So I commenced my experiments. Well,
then I had to go to work and simplify it. That is my device. I had
quite a cumbersome, heavy thing, and running with cog-wheels. I laid
that one aside and I studied over the matter, and I struck on this plan
next: to use this (showing) to put the straw through; let that revolv-
_ ing portion fly around every time making a ‘half revolution and
110 drop down on the fork and pull the fork out and it shuts ; ; thatis
to cut off the draft when you put itin. Well, | made me a ma-
chine of this kind and I put on to a boiler. It was a Wood & Mann
boiler that we had there in town. I bought a couple of bales of straw,
and in using it I found it answered a very nice purpose, and as I thought
it was quite a grand success, and there was quite a number of people
around to see how the machine would work and they put a brake on
the fly-wheel. We were not thrashing; it was after the thrashing sea-
son; late in the fall or forepart of the winter, and we took and attached
a scantling and tied it with a chain and brought it down on the top of
the fly-wheel and held on‘and got a pressure on it; what we thought
was about equal to a thrasher or separator, driving the separator.
Well, it seemed to do nicely. I felt delighted with it. So I ap-
111 plied for a patent and I got the first patent. After I had made
application for the first patent I studied over it a little and I
concluded I had better perhaps get a second patent to keep them from
going around me and using it. This was then becoming to be quite ¢
simple machine. The first was quite a complicated machine, but by
the use of this and my experimenting and finding what was really nec-
essary was to obstruct that draft of air from passing In as you intro-
duce the fuel. So I got the two patents. One was issued February,
1873; the other May 20, 1873, I believe. So those were the two pat-
ents. , :
Question. Well, what did you do next?
Answer. W ell, I then came here to this e itv, and I thought I
112. would have some made and show them to the agricultural dealers
here—show them how they would work. I got one of each kind
made—one like this (showing) and one similar to this, that with the fiat
door on the inside, and I took it over across the bay, or I started to go
over across the bay. I put it on the ferry-boat, or the freight-boat, to
go across to Oakland. I expected to find threshing engines over there
near to the city as [ could get where I could dare to have a fire, and for the
purpose of putting them on, and then invite the people here to come
over and settle it. Well, I went over there and I hunted around. Fi-
nally, | went to a machime-shop, and the gentleman told me that they
had no straw-burning engines, and said that I better go to Hayward,
there was a man there that had engines and plenty of straw; so
113. I eame back and intercepted the ferry-boat that had the freight
on it—had my steam-burners onit. It had not left yet; but I got
back in time to stop them, take them off, and put them on the Alameda
_ boat, and I sent them over to Hayward.
Question. Was that the next thing you did after trying the engine ?
Was that the first thing you did after try ing your engines below ? y
Answer. After trying my engine there ?
_—— “oe,”
HEALD VS. RICE. | 29
Question. Yes, sir.
Answer. All the trial I had made there up to that time was that trial,
and I felt satisfied; I felt as though it was a perfect success the way it
worked there ; and when I got over to Hayward I enquired around for
a man, Rice, that I was recommended to go to. I had never seen
114. him and had never been to the place before, and the people there
told me where he lived, and I went.up to him and told him that
I had a device there that I had got up for the purpose of utilizing straw
as a fuel on thrashing machines, and I asked him if he had any engines
that it could be used on. He showed me three. I think it was three
engines that he had; he had a Wood & Mann, and [ think he had two
of those return-flue boiler engines mounted, and I looked at them. I
had never seen one of them before. I thought it looked like a big log
enawagon. I did not fancy it a bit; but Mr. Rice insisted on putting
it on one he had in the shop to drive his machine shop, I tried to beg
_ off. The one I experimented on was a Wood & Mann, and I was posi-
tive of its being a success on that, and this thing I did not know ;
115 =I had rather try some other time on that; but he insisted on
putting it on to this (showing). Well, in order to get it on—
there was a recess; it. set back in there, and I told him; Says I, **]
don’t think that you can get that on there very well.” ‘“ Yes,” said he,
‘7 will put it on,” and he weit to work and had a sleeve made; I think
it was something about that long (showing), so it would come out to
the end pretty near flush; on account of this, around here it could not
go inside, and he had to have a sleeve made that would reach into the
door, and fastened it on. After he had it on I put in some straw and
fired up on it to see how it would act, and he got up steam in a very
reasonably short time. I don’t know that time now, but he seemed
to be pleased with the thing, and I went off. I told him,
116 =“ Now,” says I, “‘I am going over to the city, and I will inform
the agricultural people, Baker and Hamilton, Treadwell & Co.,
Hawley & Co., to come over and see it,” and I did so. I don’t know the
day, but this was in March, 1873; I think it was along about the 17th,
1! 5th or 17th, along there, I am not certain. After I invited them over |!
appointed a ’ day that we would fire up. They came over; that is, Mr.
Baker drove over himself in person. Mr.‘ ‘eadwell said he could not 20,
but he would send one of his men, a practical man, Mr. Laffenberger ; he
went over, and those were all that went. There were some other gentle.
men there, and I went to work firing up. They held their watch to see
how long it would take to get up steam. And after I had commenced to
fire up, getting up steam, and the engine commenced to run,
117 driving the machinery in the shop, they put on the pump to see
if it would not stop coming up, but it did not; it kept coming on
vet, and in an hour, I think, we had seventy pounds of steam, I think
something like that, and driving the machine shop ooo the pump on
full force. They. got in water pretty high on it, so it was more than
was needed.
Question. If this Wood & Mann engine that you speak of, are those
engine return-flue boilers or not?
Answer. No, sir; they are a fire- box boiler, it is called, on wood-
burning engine with the largest tubes of any thrashing- -engine boiler
that is made that I know of. The flues, I think, are three inches or
two and a half; they are larger than the Hoadley. There is the the
Hoadley and Wood & ae different patterns of those fire-box
boilers.
30 HEALD VS. RICE.
118 Question. Now, to what extent have you proved the success of
what you had done? }
Answer. Where? . by,
Question. At Rice’s; in the application of this to the Wood & Mann
boiler; that is all that you applied it to yourself, was it? ;
Answer. That was all that I tried it on up to that time, and when I got
home from there I tried it. again, and I felt satisfied that I had—well,
had it all right. I was satisfied in my own mind that it was all right
on the Wood & Mann, and so was the man that owned the engine, and
when the time came to go to thrashing he went out, but he could not
make it go, and when it came to thrashing he could not keep up steam;
it would run down on him.
119 Question. About what time did that thrashing commence ?
Answer. Thrashing over there ?
Question. Yes. |
Answer. Well, I think, thrashing over there is a little than—well, it
is not much later than it is over about the bay here; about the last of
June, first of July, along there. I don’t knew exactly what time.
Question. Let me see, who owned that engine? |
Answer. A man by the name of White.
Question. Now, go on and give the remaining history of that.
Answer. How?
Question. Give the remaining history of that engine.
120 Answer. Well, the result was that when they came—let me see,
before I made my last trial on that engine I was called off to Hol-
lister, and to go on the San Joaquin. There was a party over there that
had bought a straw-burner from Mr. Treadwell, he was the agent then
for it, and they had bought one and put iton, and went over on the San
Joaquin to commence thrashing. It was what is called Enright’s
short fire-box engine on the side; that is, not return-flue, but short fire-
box boiler. Well, in the mean time, I got a letter stating that they
could not make it go, and if I felt an interest in the straw-burner, that
I had better come over and start it up—make it go. I had every con-
fidence that the thing wasasuccess. I got mea team and started
121 i off, and went over there. It was some, I guess, 70 miles where
I had to go, and when I got there I worked with it until I was
pretty near exhausted, and I could not make it go. I did not. know
what the trouble was and it plagued me. It annoyed me so much that
I told the gentlemen—they bought this straw-burner on time from Mr.
Treadwell—and I told them, said I, gentlemen, I cannot make this thing
work for one thing or other; and I will take the straw-burner off your
hands, and take it off from here. They said “all right,” and they went
on thrashing. I had a double team and a little express wagon, and I
took it in the wagon and took it out. : ,
Question. Had Treadwell sold it as your agent ?
Answer. Yes, sir. | :
Mr. WHEATON. Go on.
122 Answer. I then came back and I started on the Bridgewall prin-
ciple; that is, on this Wood & Mann engine, and I putin a boiler
plate for a Bridgewall. It was put in the furnace and pitched forward.
Well, they used them in locomotives; perhaps the gentleman here are
posted on those things. It is a brick wall that is put on the grate-bars,
and is pitched forward and the fuel is thrown in. It is to prevent the
fine part of the fuel from rising too fast and going direct through the
flues, and it generates heat and works better where there is a very strong
draft. I went to work and I put in a boiler-plate. I gota piece of boiler-
\
“r
«
Ay
“HEALD V3. RICE. | 31
plate, it was about half an inch thick, and I put in for a Bridgewall.
Well, then I felt pleased again. Thinks I, “Well, that works
123 first rate, ” and I tried it, and I thrashed a lot of grain with it;
that is, they hauled a lot of grain into town; had it there. |
got up steam and I thrashed that with it, and there was quite a number
of people there. to see how it would work, Felt interested in it, and
they found it a grand success. Well, I felt as though it positively was
a suecess. So when they started out in the field to thrash they got up
steam in the morning:; it started in and they ran well on tow ards noon
and they burned this plate down; that is, it melted and collapsed ; fell
in, and. then the straw went ov er the top of it. This (showing) was
standing forward where the straw came in through would strike, as you
understand it. But when it melted and caved down it bagged down
and made a hollow. The straw ran in over the top of it, and that
124 ‘stopped the game, because it would shove the dirt to the end of
the flues of the boiler. They could not use it any longer. They
throwed it out and went off and in the mean time I got a letter; that
is, when I came back from Hollister and San Joaquin. I received a
letter from Mr. Rice that he had made the same.a success on the other
boiler, on the return-flue. That letter I had from him a long time, show-
ing it to the people, that it was not b failure; that it was a success on
a certain class of boilers.
Mr. WHEATON. Well, what kind of boilers to which you applied it
did you ever make it a success ?
Answer. I cannot say that I have. I don’t know of one that is using
it—a short furnace boiler; that I have never been sucessful in
125 making it asuccess. Messrs. Treadwell & Co. then wrote to me
finally, by the way, and asked me if I was going to experiment any
ee the short furnaces. I wrote to him that I did not think that I
wou
The Court. I don’t that : is worth while.
Mr. WHEATON. Well, can you state positively as to whether or not
the appliance is a great deal better when attached to a retur n-flue boiler
than it is when attached to a short boiler ?—
Answer. Yes. I could not make it a success on the short boiler; but
it has proved a success on the return-flue.
Cross-examination by Mr. EstEE:
Question. Where do you reside now
126 Answer. I reside in Watsonville, Santa Cruz County, Califor-
nia.
Question. What is your relation to this suit? Have you any interest
in it one way or another ?
Answer. I am indirectly interested in it.
Question. You have entered into a combination with Mr. sanidtinins and
Mr. Rice in this mater, have you not?
Answer. I have sold out to Mr. Hawley and Mr. Rice; yes.
Question. Is that sale conditioned upon the success of this suit ?
Answer. It is a conditional sale; yes. ) |
Question. Upon the success of this litigation ?
Answer. Yes, sir.
127 ~—— Redirect examination by Mr. WHEATON:
Question. Did you ever cony ey to Mr. Hawley, or did you con-
vey to Mr. Rice, and he to Mr. Hawley ?
Answer. I conv eyed to Mr. Rice.
Question. And he to Mr. Hawley?
32 HEALD VS. RICE.
Answer. He to Mr. Hawley.
Mr. EsTE£. And itis all conditional upon the success of this liti eaten,
is it not?
Answer. It is.
Mr. WHEATON. What is it that is conditioned on the success of this
suit, the sale you have made or your pay for it?
128 Answer. What is it?
Question. What is it that is conditioned on the result of this
litigation ; is the sale contingent, or is it your compensation for the con-
veyance of your patent contingent ?
Answer. The compensation for the convey ance of the patent is con-
tingent.
Testimony of L. B. Anway.
L. Bb. ANWAY called for plaintiff; sworn; examined.
By Mr. WHEATON:
Question. Where do you reside?
Answer. Near Hayward, Alameda County.
Question. What is your occupation ! ?
129 Answer. Farmer.
<a
Question. Do you know anything about these straw-burning |
engines and boilers?
Answer. Y es, sir; I have ased them.
Question. What do you know about these two straw- burning boilers
and engines made by Mr. Rice in 1873? Did you have anything to do
with either of them? :
Answer. Made in 1873?
Question. Well, the straw-burning devices were attached in 18731
Answer. Yes, sir.
Question. The boilers were old ones ?
Answer. I used one of them.
Question. First state your connection with it, giving all the principal
facts, as short as you can.
130 Answer. I bought one of Mr. Rice’s engines—one of those tubu-
lar boilers. In a few days after I bought it and was using it he
had put one of those attachments on of Mr. Rice, and I used it with
that on.
Question. When was that put on?
Answer. About the 12th of July, 1873. 3
Question. Just go right. on and give a history of it.
Answer. Well, I used it that season from that, and through the bal-
ance of the thr ashing season, and I have used it every season since, in-
cluding the last.
Question. Where did you first use it?
Answer. [ used it at Livermore Valley.
Quastion. Where next?
131 Answer. Salinas Valley, Monterey County.
Question. How do you know what had been stated as to the
straw-burning engines prior to the use of that engine by you?
Answer. That is the first one I ever saw used. 7
Question. What class of people use these straw-burning enginés ?
Answer. Well, they are generally used in thrashing grain on a farm
by farmers.
Question. They are for farmers’ use, are they?
Answer. Yes, sir.
!
HEALD VS. RICE. | 33
Question. Do yeu know whether there had been any like that in
Salinas Valley before or not?
Answer. I think that was the first that was ever there. They
132 told me so, those that were residing there.
Question. What was done with it there when you got there
first? Just talk freely, and go right on and make a statement.
Answer. Well, when I first arrived there with the engine there was
a good deal of prejudice against it, and it was a number of days before
' Leould get any work to do, on account of people believing it to be a
humbug—that it could not be used, that they could not thrash with it,
and after 2 or 3 days I received an ‘invitation from a man to attach my
engine to his separator, as he was thrashing at home, and we done so
and made a success of it. From that time on I could get all the work
that I wanted to do.
Question. Do you know how the use of these return-flue boilers
133 with that feeding device compares with the use of the short fire-
box boilers with - the same device ?
Answer. I knew of some that I have tried it, and would not make a
success of it, throwed them aside.
Question. "Tried which ?
Answer. Tried the attachment on the fire-box boilers.
Question. How extensively have those experiments been made to
your knowledge with the short fire-box boiler ?
Answer. I think I know of 4 or 5 different ones.
Cross-examination by Mr. ESTEE:
134 ° Question. Who experimented, Mr. Anway, on short fire-box
boilers? You say yeu know 4 or 5 who did it.
Answer. One man, by the name of Harrington, in Livermore Valley,
experimented.
Question. Did you. see it ?
Answer. Yes, sir. I saw him when he was taking it off, cleaning his
engine. |
Question. Well, did you see it at its work ?
Answer. No, sir.
Question. Who was the second man ?
Answer. There was another man in Salinas Valley, by the name of
Wyse Carver. |
Question. W ell, he put on one of the M orey tubes, did he?
Answer. T did not see it. He told me so himself.
135 . Question. You don’t know it then, except what he told you?
The Court. You need not state what you heard, only what
you know yourself,
Mr. ESTEE. Now, from what you know of your own knowledge,
whom do you know actually ever experimenting ?
Answer. I have never seen any other except Mr. Harrington’s my-
self.
Question. And he, you say, took it off ? —
Answer. Yes, sir; I saw it after he had experimented with it.
Question. You don’t know whether these straw-burning attachments,
or any other, cornstalk, or any other burning attachments, have been
used in other countries or places, do you, connected with these boilers,
for thrashing or other purposes ?
136 Answer. I have never been in any other country.
Question. All you know is the first one you saw was the one
you saw over at Hayward’s ?
REc. 193—3
¢
34 HEALD VS. RICE;
Answer. The first one I saw was the one I used.
Question. That was that Morey attachment to one of those old return-
flue boilers was it? ?
Answer. Morey’s attachment to one of Mr. Rice’s boilers that he built.
Question. Was it one of those old boilers or the new ones?
A. Two old ones.
Question. What kind of door was there to that when he made that
attachment, or don’t you know ?
Answer. W ell, I don’t know as I understand your question.
137 Question. Well, before he put the Morey attachment to his
boiler, what kind of a door was there to that boiler—that return-
flue boiler ?
Answer. A common ordinary door used in - burning wood, turned at
one side. 2
Question. Have you had any experience in burning straw except with
this particular engine ?
Answer. Yes, sir.
Question. State to the jury whether or not you can burn straw in one
of these return-fiue boilers just with one of those common doors where
you burn wood or burn coal ?
Answer. I never tried it with one of those.
Question. You don’t know whether it can be done or not ?
138 <Answer. No, sir.
Question. Now, if it should appear that it could be done just
as well, why then it would be just as good, wouldn’t it?
Answer I don’t know.
Question. You don’t know ?
Answer. No, sir.
Redirect examination by Mr. WHEATON:
Question. Do you know to what extent the straw-burning engines
have displaced all other engines for thrashing purposes ?
Answer. Well, where I have been thrashing there is a demand
139 for the straw- burning engines. Parties having wood burners
or parties wanting thrashing done, employ the wood burners
when they cannot get the straw burners.
Question. How old a man are you, Mr. Anway ?
Answer. Nearly 50.
Question. How long have you resided in the country—California ?
Answer. I have been in California most of the time since 1852.
Question. And where did you reside before that ?
Answer. Ohio.
Question. Is that a State where they raised a good deal of grain while
you were there ? | : 7
Answer. Well, they raised some; considerable.
140 Question. How did they do their thrashing there ?
Answer. They did it with thrashing machines principally.
Mr. EstTEE. That is in the State of Ohio? :
Answer. In the State of Ohio. I have seen them thrash there with
the flail, with horses and with thrashing machines.
Mr. WHEATON. What power did ~~ use with their thrashing ma-
chines ?
Answer. Principally horse- -power.
Question. Did you ever see them use anything else pind ides -power
with the thrashing machines ?
Answer. Not in Ohio.
~
a gee
te eed
- A
HEALD YS. RICE. —S«s 3B
141 Recross-examination Mr, ESTEE:
Question. You are exactly 50 years old, you say ?
Answer. Yes, sir.
Question. You are acquainted with Ohio, and know the small farms
that existed there, and the value that is placed upon straw for manure
and other purposes. Do you believe, if you take a straw-burner there
to-day, you could do any threshing in Yhio with a straw-burner ?
Answer. Yes, sir.
Question. Do you believe it would displace a coal or wood burner ?
Answer. I could not tell you, sir.
142 Question. From your knowledge, do you believe they burn straw
instead of wood as fuel ?
Answer. I don’t know.
Question. Don’t you know str? is the cheapest fuel in California,
and that is the reason it has value—the straw- burner ?
Answer. Yes, sir.
Question. If it was not so the straw-burner would not have value,
would it ?
Answer. I presume not.
Question. That is the proposition in the case, as to the ,introduction
and use of these machines, 1 isn’t it ?
Answer. Well, it is more available, I think straw is, than wood.
Question. You can get up as much steam or fire with straw as
143 ~=with wood ?
Answer. I had rather use straw. |
Question. If straw was more expensive than wood and coal, it would
not be used by the people generally, would it?
Answer. I don’t think it would, i7 it was more expensive.
Redirect examination by Mr. WHEATON:
Question. Is there any difference in the length of time that a boiler
will last as to whether straw is used or wood ?
Answer. I think there is; that is I think a boiler that is suit-
144 able for burning straw will last longer than fire-box boilers that
they usually use wood in.
Question. Do you think that the same boiler where straw is used for
fuel will last any longer than if the same boiler was used for wood or
coal ?
Answer. Well, I should have to consider that question before I could
answer it. :
Recross-examination by Mr. ESTEE:
Question. Have you ever handled any of their boilers but this par-
ticular one ? :
Answer. Yes, sir.
Question. You have handled other return-flue boilers, have you?
145 Answer. Yes, sir.
Question. How many of them
Answer. Three others, I think.
Question. Now have you ever used any one of them till they were
worn out?
Answer. No, sir.
Question. Did you ever use one of these return-fine boilers and burn
wood or coal ? |
Answer. Yes, sir.
Question. Did they wear out?
Answer. No, sir; not while I had them in use.
36 HEALD VS. RICE. _
Question. Do you know whether a return-flue boiler would last any
longer to use either wood or coal or straw, in either event?
146 #Answer. I would have to consider that question before I could
answer.
Question. You would not know then, would you? You have not ex-
amined the subject sufficiently to tell, have you? a
Answer. No, sir. :
Testimony of W. R. Michener.
W. R. MICHENER called for plaintiff; sworn; examined.
By Mr. WHEATON: | ——
Question. What is your occupation ? &
Answer. My occupation is a machinist. a
Question. Do . su know the parties to this suit, Mr. Rice and Mr.
Heald ? | 3
Answer. Yes, sir; I am acquainted with them. :
147 Question. Have you worked at the manufactory of the return-
flue boilers, with the attachment for burning straw ?
Answer. I have not worked at boilers, I have simply put the engines |
on them—mounted them. :
Question. Are you well acquainted with their construction, and do
vou know what they are ?
Answer. Yes, sir.
Question. W hen was the first time, if ever, that you heard thedefend- - _;
ant Mr. Heald say anything about them ? : ¥
Answer. I don’t recollect exactly when it was. I think it was near 4
years ago, perhaps 3 or 4 years ago. He came to Mr. Rice’s shop when
I was there. :
Question. What then passed betw een him and Mr. Rice concerning '
them ?
148 Answer. Well, [ don’t know that I can tell anything about
what passed between him and Mr. Rice.
Question. What did Mr, Heald say about them ?
Answer. Mr. Heald enquired about them, whether they were a suc-
cess or not, and he looked them over to see how they were made and he
said he w as going to make some. That was about the sum and sub-
stance of the conversation between him and I, as near as I can recol-
r
;
lect. Paes 2d ,
Question. Do you think it was anywhere near 4 years ago?
‘ } ‘
b
r
Answer. No; I don’t think it was 4 years ago, probably about 3. I
‘ant recollect the time, it was after the first season we built them.
149 We built the first year and between that time and the next year’s
season he was there.
Question. Mr. Rice has testified he built his first two in 1873.
Answer. Well, between that and the next season, sometime between :
that and the next season. 1 cannot tell exactly the cate. I paid no : (
attention to the date whatever; I simply recollect the fact of hisbeing ~ 7
there after we had built the first lot. ye
Cross-examination by Mr. ESTEE:
Question. What position do you occupv with Mr. Rice and Mr. Haw-
ley ? ’
150 Answer. I have nothing to do with Mr. Hawley whatever. aa 2
Question. Are you the foreman of their shops 2 2
Answer. I am foreman of Mr. Rice’s shop. : |
_ eee -
HEALD VS. RICE. 37
Question. You have been the foreman of his shop for years ?
Answer. Yes, sir.
Question. Were you foreman in Mr. Rice’s shop at the time that he
got this straw attachment, as you call it, from Morey?
Answer. No, sir; I was not there at that time.
Question. But you came there immediately after?
Answer. I came there sometime after; | camein the winter. I think:
next.
151 Question. You immediately commenced attaching those Morey’s
. straw-tubes to these return-flue boilers, did you? |
Answer. Yes.
Question.” Who did it ?
Answer. Well, I don’t recollect.
Question. Did you do it? 5 te
Answer. I did not do itindividually. I presume I had help to do it.
Question. Well, did all the different hands do it ?
Answer. Yes, sir, different hands.
Question. How did you do it ?
Answer. We had them built in San Francisco, all the boilers. Mr.
Rice had them built in San Francisco, all complete, and we simply
bolted them in when they came there. They come there all fitted
152 ~=and taken apart. |
Question. Then you put in the tubes ?
Answer. Then we put in the tubes.
Question. Did it require any invention of a skilled mechanic in his
art to put those tubes in?
Answer. After they had been made, it did not.
Question. After they had been made, did it require any adjustment
to adjust it to a return-flue boiler ?
Answer. No, sir, not after they made them; it did not require a skilled
mechanic. |
- Question. You know return-flue boilers are made. Thereis no patent
on return-flue boilers, is there ?
Answer. Not that | know of. I don’t know of any.
153 Harvey W. Rice recalled for plaintiff.
Mr. WHEATON: |
Question. Have you ascertained the exact date now, when you con-
veyed these patents to Mr. Morey ?
Answer. Yes, sir. I find it was the 12th day of May, 1576.
Question. Have you the original pereument there with you?
Answer. I have ; yes, sir.
Question. Did you own the patents up to the date of that assign-
ment ?
Answer. I did.
Cross-examination Mr. ESTEE:
154 Question. Mr. Rice, is that the only agreement or assignment
that you have entered into with Mr. Hawley ?
Answer. Yes; that is the only assignment.
Question. Is that the only agreement you ever entered into w ith ref-
erence to the sale of this patent to M r. Haw ley, or Hawley & Co,?
Answer. It is not.
Question. What is the other one?
Answer. I have two or three agreements; three, perhaps four.
Question. What was the first agreement, ‘and when was it made?
Answer. I don’t remember the dates.
38 HEALD VS_ RICE.
Question. What was the first agreement that you made with
155 Mr. Hawley relative to the assignment of these patents, and
when was it made? : |
Answer. Well, | have the agreement in writing. I think I have
never looked it over since we made the agreement. .
Question. When was it made?
Answer. I don’t even remember the date:
Question. Well, was it-made at the time when you testified yester-
day, in January 18, 1876?
Answer. W ell, I think I made a mistake in dates.
Question. When was the first agreement made ?
Answer. I don’t know the date of it.
Question. Was this the first agreement made ?
156 Answer. (Int.) That is the assignment; tliat is the time I made
the assignment. .
Question. Is that the first agreement or sale or assignment of those
patents made by you to Hawley, or to Hawley & Co.? |
Answer. I think not. I think the agreement was dated before that.
Question. Now, when was the first one made ?
Answer. I don’t remember the date without referring to it. Ican tell
by referring.
Question. Can you produce the first one ?
Answer. I can, sir.
Question. 1 will ask to have you produe e it.
157 Answer. I did not go out of the city last night, and they are at
my place in Haywood. I can bring them over, if you choose, or
I can ascertain here. (Mr. Wheaton shows witness a paper.) There.
Gs an agreement dated Dec. 8th, 1875—agreement'that I signed.
Question. Well, but that is made long subsequent to this one. I refer
to one made prior to the one that you have just introduced, dated May,
1875.
Answer. 1876 it was made. We did nothing in 1875.
Question. (Showing.) Is this the first agreement you made with
Hawley & Co.? :
Answer. I think it is. I have all the papers at home. I ought to
have brought it. |
3 Question. Just look at it and tell the jury whether or not it
158 is the first agreement. : |
Answer. I think it is; I think this is the first.
A JUROR. What is the date of that ?
Mr. ESTEE. This is Dee. 8th, 1875. |
Question. This is dated the day of its execution, is it?
Answer. Yes, sir.
Question. Was there any other assignment made between the Sth
day of Dec., 1875, and the 12th day of May, 1876?
Answer. No other assignment but that by me,
Question. There has been none but these two entered into?
Mr. WHEATON. The first is not an assignment.
159 Mr. ESTEE. Well, agreement; call it whatever you please.
Answer. That (showing) is the only assignment I ever signed;
the other is an agreement. There are other agreements.
Mr. ESTEE. We would ask to have it placed in as an exhibit. It is
an agreement to sell; it is not exactly an assignment.
Mr. WHEATON. I object to that as irrelevant.
(Objection sustained.) ;
Mr. ESTEE. Mr. Rice, do you manufacturethese machines? Have you
a factory that you manufacture these machines at now?
HEALD VS. RICE. | 39
ee 3 Answer. I have; yes, sir.
160 Question. Whom did you manufacture them for?
Answer. I am making some now for M. ©. Hawley & Co.
7 Question. You are not making them for your self 2
| ? Answer. No, sir; not directly.
4 Question. And you have not been since that assignment ?
te Answer. No, sir.
i oe Question. Except the one referred to in that agreement?
Be _ Answer. Except those that were under way at the time,
Question. Does M. C. Hawley & Co. obtain all their mae hines trom
| you?
Answer. They do not, or did not last season.
“sr Question. Where were they made?
Cj) * 161 Answer. I had them made, a part of them— |
; Question. (Int’r’t’g.) Well, were they all made in this State?
’ Answer. No, sir.
\ Question. A part of them were made East?
Answer. I had a part of them made East.
Question. Have you ‘that agreement made with Ames Company with
you?
Answer. Ihave not; no, sir. The assignment can be procured. It
cannot be produeed, L think. 3
Question. It can?
ie Answer. It cannot, I think; not at present.
Question. Where is it?
162 Answer. I think it is on its way from the East—I think it is.
I don’t think it has arrived yet. T have not seen it.
Mr. ESTEE. Well, if that be true, we ask to prove by this witness
what its contents are so far as the royalty that he was to receive by —
that agreement made with Ames & Company, an iron company in the
Kast, is concerned, |
WITNESS. I think I have a copy of the agreement.
Mr. ESTEE. We don’t care about prying into his private affairs. We
just want to ask him the simple question what royalty he gets under
that contract.
v (Mr. Wheaton says he has no objection.)
} 163 Mr. ESTEE. Mr. Rice, with whom is the agreement made?
Answer. The Ames Iron Works, Oswego, ‘New York,
J Question. How many does it give them the right to manuf vcture of
: these machines—that is, boilers, &e.? |
' | Answer. AS many as they choose to make.
¥: Question. What is the amount of royalty they are to pay?
ih Answer. They pay me a certain sum of money down and seventy-five
dollars royalty on each machine.
b Question, Is not the money down that you receive to be paid out of
: the seventy-five dollars royalty?
. : 164 Answer. It is in advance of the royalty. ?
( Question. Then the regular royalty is seventy-five dollars,
r isn’t it?
me Answer. It is. Those are to be made east of the ae of the Rocky
Mountains.
Question. There is another arrangement in it, is there » riot. that should
they make any and ship to this coast, that they were to pay Hawley
~— & Co. seventy-five dollars royalty?
, Answer. No, sir.
Question. Is there not such a provision in it?
40 HEALD VS. RICE.
Answer. No, sir. They are only to pay me.
Question. And you are to pay it to Hawley & Co., ain’t you?
Answer. No, sir; there is no such agreement with the Ames’ Com-
pany at all.
165 Question. Well, is there any sucha greement between you and
Hawley ?
Answer. W ell, L would ask the judge whether this has anything to _
do with that.
Mr. ESTEE. Well, before we get through we shall see that it has a
great deal to do with it, Mr. Rice. What I want to know is, if the court
please, if the supposed. inventor here, Mr. Rice, entred into a contract
with Mr. Hawley, that should Ames Co., with whom he, Rice, con-
tracted in the East, send any of those machines here, then that he, Mr.
Rice, was to pay Hawley & Co. the seventy-five dollars that he was to
get from the Ames Co. in the East. I do that for the purpose of fixing
the royalty here. |
Witness. I have all those agreements betwixt Hawley and my self
that | can bring in; they are in writing.
166 The Court. You can answer that question.
Answer. There is an agreement betwixt me and Mr. Hawley
in writing.
Mr. EsTEE. That you are to pay him in case any of the Ames ma-
chines come here—that you are to pay Hawley?
Answer. Providing there is a provision m that, that is, providing I
receive the money, I pay it to M. C. Hawley & Co.
Question. That is, seventy-five dollars?
Answer. Yes, sir.
Question. Between May 4, 1875, and January 12, 1876, I wish to ask
if you know, of your own knowledge, acne Mr. Hex ld,.in the first place,
made or sold any return-fiue boilers ?
Answer. I do.
167 Question. Well, how many ?
Answer. He made six.
Question. Did you see him make them, or did somebody tell you he
made them ?
Answer. Mr. Heald told me. 3
Question. That he made them between those dates—between May
the 4th, 1875, and Jan. 12, 1876?
Answer. Mr. Heald told me that he made six engines in 1875 and 11
complete in 1876.
Question. My question is, Mr. Rice, whether you know from anything
Mr. Heald told you, or from your own knowledge, that Heald made
any of these return- flue boilers during the year commencing May 4,
1875, and ending Jan. 12th, 1876?
Answer. There was no dates spoken of when we talked about it.
168 Question. Do you know that fact
Answer. I know that he did make engines.
Question. How is that?
Answer. I did not understand the question as you have got it. May
4, 1875, until what time? .
Question. Yes, sir; to Jan. 12, 1876. | |
Answer. Yes, sir; he made six. He commenced those engines be-
fore May 4. but they were all finished after May 4.
Question. Well, do you know that?
Answer. I do.
Question. Did you see them?
€
*
HEALD VS. RICE. | 4}
Answer. I saw some of them.
Question. Where ? |
169 Answer. I saw one in San Ramon Valley; I saw one in Solano
County. |
Question. Well, I understand; but do you know, and can you swear,
that any one of those you saw was made or sold subsequent to May
4, 1875, and before Jan. 12, 1876?
’ Answer. No further than this: Heald told me about the selling. I
don’t know otherwise of any being sold..
Question. Did he tell you he made or sold any during that period? ?
Answer. He told me he made 6 enginés in 1875.
Question. Well, did he tell you that he had made or sold 6 engines—
return-flue boiler engines—during that period ?
Answer. There was no date spoken of—only 1875.
170 Question. You don’t know anything about that, then, as a
matter of fact?
Answer. Yes; I know he made them at that time. I know he made
them in 1876. :
The Court. How do you know he made them after May 4, 1875, and
before Jan. 12, 1876?
Answer. I know they were all completed after May 4, because L-was
at his shop and saw him working at them.
Question. After May 47
Answer. Yes, sir.
Mr. EstEE. After May 4?
Answer. Yes, sir.
Question. When were you at Mr. Heald’s shop?
171 Answer. I was there, I think, about the middle of last May.
Question. In what year?
Answer. 1875.
Question. Whereabouts ?.
Answer. At Vallejo.
Question. Whom did you see there ?
Answer. I saw his workmen, the foreman of his shop. Mr. Heald
was in the city at that time. I don’t know the names of any of his
workmen.
Question. Would you recognize any of them if you should see them ?
Answer. | don’t know that I would.
Question. Are you sure that it was before or after May 4, 18752
Answer. I am quite sure that it was after May 4.
172 Question. You are quite sure? ,
Answer. I am quite sure it was.
Question. How is it, then, you made this mistake a few minutes ago,
that you said Mr, Heald had told you that he had made them, and
that was the extent of vour knowledge? ?
Answer. Mr. Heald did tell me that he had made engines in 1875,
but they were not completed ‘until after May 4. | am certain that they
were not completed until after May 4, as I said.
Question. What is that?
Answer. I am certain that they were not completed until after May
4,as I said. I passed Vallejo many times after that—after May 4—
and saw the engines standing out as they were building them—out in
front of the shop.
173 Question. Saw what engines ?
Answer. These same straw-burning engines,
42 HEALD VS. RICE.
Question. Do you know whether they were completed or not, or
whether they were his or not?
Answer. I do. I know they were his engines. Nobody builds an
engine like Mr. Heald.
Question. No; I know they don’t. Now, Mr. Rice, do you know that
they were his, that he had not sold them? 2”
Answer. I do not.
Question. Or that he had sold them ?
Answer. I do not.
Question. Do you know that they were completed or not completed ?
Answer. I know some were not completed, as I saw them in
174 passing. The railroad is very close to his shop.
Question. Near enough Heald’s foundry in Vallejo to tell
whether one of those machines is completed or not as it stands up?
Answer. Oh, yes, sir; yes, sir. You see men working on a machine,
and you can tell by the ‘looks of the machine.
Question. Did you see any men working on a machine?
Answer. Yes, sir.
Question. What date ?
Answer. I don’t remember the date. I passed through a great many
times in going up to Lake County.
Question. What date ?
Answer. I pass there from April till August—September.
175 Question. Now, Mr. Rice, do you know of your own knowledge,
or from any other source, that Mr. Heald put a tube—any kind
of a tube—in any engine, an engine with a tube m, between May 4,
1875, and Jan. 12, 1876? |
Answer. I know there was tubes in them after May 4th.
Question. What is it?
Answer. I know there was tubes in his engines after May 4. I don’t
know when he put them in.
Question. Where were the engines ?
Answer. There was one at MeCreary’s ranch, in Solano Co.
Question. Did you see it there ? |
Answer. I saw the engine.
Question. Did you see the tube in it ? :
176 Answer. No, sir; the tube had been taken out. I saw the
tube lying by the side of the engine, and I made a model of it.
Question. Do you know who put the tube in it?
Answer. Yes, sir.
Question. Who did?
Answer. Mr. Heald or his workmen.
Question. How do you know ?_
Answer. He told me so.
Question. Who did?
Answer. Mr, Heald.
Question. When did he tell you he had put it in?
Answer. He told me yesterday, and once before.
177 Question. No, what time did he tell you he had put it in ?
Answer. He did not tell me when he had put it in. Hetold me
that he put tubes in two of his engines vesterday ; but I was under the
impression that he put tubes into all those 6, and was told so by Mr.
MeCreary and others.
Question. But let me ask yon, did he tell you anything about when
he put in those tubes ? 2
.
2
3
HEALD. VS. RICE. | 43°
Answer. He did not tell me when he put them in. He said he had
put them in in 1875; in the engines that he had built in 1875.
Question. He told you so when ?
Answer. Yesterday.
Question. Where ?
Answer. In the court-room.
Question. In this court-room ? :
178 Answer. Yes, sir; he told me that he put 2 tubes into the en-
gines that he built in 1875.
Question. What kind of tubes were they ?
Answer. A tube with a box-door, similar toa little door.or valve in
it, similar to the model I showed yesterday.
Question. A model of what ?
Answer. Well, I made the model from the tubes that I saw.
Question. W as it the Rice tube ?
Answer. It was the imorey tube—Morey’s patent. This (showing) is
the tube. |
Question. Did you have any patent for the tube?
Answer. I had not, sir.
179 Redirect: examination :
Mr. WHEATON. Mr. Rice, what is the last thing done in build-
ing these engines and boilers, or rather at what time in the course of
the construction is the attachment of the straw-feeding device made?
Answer. Well, it can be done at any time. The first engine that we
built it is the last thing that we put on. |
Question. Isn’t it usual to put them on the last thing?
Answer. Not always; no. It is the last thing that we put on the
boiler when we make the boiler. It is the last thing we put on gen-
erally ; it is the last thing; it is the very last thing we put on when we
make the boiler. .
180 Question. Were these boilers of Mr. Heald finished before
May 4, 1875—those 6 boilers ?
Answer. No, sir; they were not. |
Question. Then was this attachment put on to them prior to May 4,
1875—the straw-feeding attachment ? |
Answer. I don’t think they were.
Question. They were put on by him prior to Jan. 12, 1876?
Answer. I think they were; yes, sir. j
Recross-examination :
Mr. ESTEE: |
Question. What is it?
181 Answer. I think they were. I think they were put on after
that time. They may have been put on before.
Question You say you thmk they were. Well, do you know any-
thing about it?
Answer. I don’t know anything positive about the time we put these
tubes on; nothing positive about it.
Question. Do you know anything positive about the time any of
these machines were done in 1875?
Answer. Not the day they were finished, any of them.
Question. Well, the month, even?
Answer. Yes, sir.
Question. Well, what month were they finished ?
Answer. Well, they were finished in May and June.
= “. HEALD VS. RICE. | oN
a 182 Question. Well, how do you know that ? <é
| Answer. Well, thrashing engines have to be Suiahed about
aa that time to be sold.
Question. Oh, well, but how do you know these 6 were ?
Answer. The one that I saw in San Ramon Valley was finished in
June; that one that I saw running.
Question. How do you know that it was finished in June?
Answer. By the men that were working on it. : Pat. See
Question. They told you so? i 2
Answer. Yes, sir.
Question. That is all you know about it 7
Answer. Yes, sir. I was not at the shop at all. |
183 Mr. ESTEE. You need not tell what you were told. You are — 9
here to testify to what you know, Mr. Rice. ;
Saya ay
Testimony of Walter N. Harley.
WALTER N. HAWLEY called for plaintiff, sworn, examined:
Mr. WHEATON:
Question. What is your occupation ?
Answer. Hardware and agricultural merchant.
Question. Are you one of the assignees of Mr. Rice of these patents?
Answer. I am.
Question. The party named in the assignment that is in evidence ? ?
Answer. Yes, sir.
154 Question. How long havé you been dealing in- agricultural in-
plements ?
Answer. About 18 years.
Question. To what extent have you dealt in thrashing REPASPENS 5
that is, for how many years?
Answer. About 15 years.
Question. When did these straw- hernine g engines first come into use ?
Answer. About three years ago; may “have been 4; one or two of
them may have been 4 years ago; principally 2 years ago. |
Question. Have your business relations made you intimately ac-
quainted with the history of straw-burning engines for thrashing- '
machines ? | )
Answer. I think it is. | :
(uestion. Don’t you know whether it: is or not ? i
138d Answer. Well, when you say the entire history, I could not say '
about that. There may have been something done that I know
nothing about. IJ think I know the whole history of the straw-burning
engines. | |
Question. When were they first introduced ? .
Answ er. Three years ago; that is as far back as my know ledge of
them extends.
Question. What were the first efforts that you know of that were
made to introduce them, and what were theresults? Please give a pretty
full statement of it. |
Answer. Well, I know of Mr. Rice’s experiments. I am quite sure it
was 3 vears ago; and within the last 2 years I know of Mr. King’s
experiments, and Benson’s experiments, and Treadwell & Co.’s experi-
ments, Mr. Laughfenburgh’s exper’ments, Baker & Hamilton’s exper’-
ments. | | | ‘
186 Question. Did you make any yourself?
se aol _— = Set pig Wh age. TP 8 et nanan
EEE LIAO OE
a —_
ns ey, Ow ~ —~ -
HEALD VS. RICE. 45
Answer. Yes, sir; that is, we had them made for us. We experi-
mented ourselves.
Question. Now, what were those experiments? First state the extent
of the experiments with boilers other than return-fiue boilers.
Answer. I did not hear the question.
Question. State the efforts that were made, to your knowledge, to
make the ordinary boiler successful for that purpose ; that is, any other
boiler other than return-flue boilers.
Answer. Weexperimented under the Benson patent, and found in
trying to attach a tube similar to this to the wood-burner boilers or the —
fire-box boilers. We also experimented on the King patent, to attach
this Morey tube to the wood-burner boiler.
187 Question. About what time did you first make those experi-
ments ? i
Answer. Two years ago this coming summer.
Question. That was subsequent, then, to Morey’s patent ?
Answer. Yes, sir.
Question. Now, state fully the experiments that you made, and the
result of them.
Answer. Well, we experimented for two or three months under the
Benson patent. Benson used a tube——
Question. (Int’r’pt.) Well, what were those experiments ? What did
you do?
Answer. We attached a tube to the fire-box boiler of the wood-burner
engine and tried to raise steam by feeding straw in through this
188 tube into the ordinary fire-box engine of wood-burner boiler.
Question. How many boilers did you apply the tube to?
Answer. I cannot say as we tried it on more than one boiler.
Question. How long did you work with that?
Answer. Well, some two ‘months. |
Question. Whereabouts did you try?
Answer. In Sacramento. :
Mr. Boat. We object to all this tieistinnoniy as irrelevant and imma-
terial. It is in evidence here that Mr. Morey did not limit the applica-
tion of his straw-burning apparatus to the fire-box boiler alone, It
don’t make the remotest difference in the world whether the fire-box
boiler with Morey’s device was a success or not.
189 The Court. That will be a question on the construction of
these patents, and on the evidence when he gets his testimony all
in. I think, as we are gone so far with it, we had better take the testi-
mony. -
ayaa excepts.)
* WHEATON. What was the results of all those experiments ?
Answer. They proved a failure. Wespent quite a large sum of money
and considered it lost and no result gained that was profitable in any
way. We abandoned the attempt.
Question. What do.you mean by a large sum of money? Give us the
amount as near as you can.
Answer. Well, 5 or 6 or 800 dollars.
Mr. EstEE. What?
190 Answer. 5 or 5 or 800 dollars, and I don’t know but 1,000
dollars, and we spent a great deal of time.
Mr. WHEATON. When you say it was a failure, did you ever succeed
in getting up steam?
Answer. Yes, sir; we could get up steam and run along very well for
an hour or two hours, but we could not keep up steam so as to run a
46 | HEALD VS. RICE.
thrashing machine st tendily all through the day. The steam would run
right down, and then we would have to stop for an hour or two hours to
get up steam again. It was pronounced a failure on that ground—that
it was impossible to keep up steam long enough to do-a day’s work.
Question. They could not be used in competition; that is, the
191 same boiler was better for burning coal or wood than it was for
burning straw ?
Answer. Yes, sir.
Mr. EsTEx. I wish to interpose this objection ; that is, that he has
not shown by this witness that he is a mechanic. Beige
The Court. He is showing actual experiments. What he actually
did and what the result was.
Mr. ESTEE. He said he had it done, and the party making the experi-
ments ought to be called.
The Court. He is not asking him as an expert; he is asking what
he did and what the result was. Those are facts which anybody can
testify to that knows them. . 7
192 Mr. WHEATON. W ell, what kind of men did you employ to
make those experiments ?
Answer. Well, when I say I did it, I did not personally attend to it.
It was done by our firm. I don’t mean to say that I did the work or
attended to it. :
Question. Well, I say what kind of men did you employ to actually
attend to it and superintend it ?
Answer. Competent engineers and men ne had had pEpemence in
the business,
Question, Thoroughly skilled mechanics ?
Answer. Yes, sir.
Question. Now, as to the experiments of other parties that you know
of. You have mentioned Treadwell & Co. and Baker & Hamilton.
193 Answer. Well, Mr. Treadwell told me——
The Court (Inter’pt’g.) You need not give any hearsay.
State only what you know of your own knowledge.
Answer. I know that he has taken his straw-burner dttachments off
and thrown them one side. That I know, and it is not a success. He
has returned. He sold them for straw-burner boilers, and has thrown
them aside and used them for wood-burners.
Mr. WHEATON. How general was the attempt made to convert those
wood-burning engines into str aw-burning engines prior to the use o7 the
return-fiue boiler ?
Answer. It was made by a number of parties.
Question. Were the wood-burning and coal-burning engines in pretty
extensive use before this invention was made?
194 Answer. Pretty near al/together in this State.
Question. What kind of boilers were used in them ?
Answer. The fire-box or locomotive boilers.
Question. That is not return flue?
Answer. Not return fiue.
Question Well, was there a gener al attempt made by owners of those
engines to put on the tube and use straw ?
‘Answer. There was in spme sections of the State. I only know in
San Joaquin Valley quite largely. At Sacramento parties tried it.
Question. Now, what was the result of that generai attempt?
Answer. It is pronounced a failure.
195 Question. Did they keep on using them for straw or go back
to wood and coal ?
ve
ey
HEALD VS. RICE. 47
Answer. A great many went back to wood and coal.
Question. Well, do you know whether that was generally done or not;
that is, so far as those particular boilers are concerned? I have not refer.
ence to them applying them to return-flue boilers.
Answer. I only know from hearsay. I have not seen the boilers and
haven’t seen the tubes taken off; but that is what I get from letters.
Mr. ESTEE. You need not state from letters.
Answer. No; I don’t know from seeing the boilers and knowing the
tubes have been taken off and replaced ; I don’t know.
196 Mr. WHEATON. How long have you been in the business of
selling these return-flue boilers for straw-burners ?
Answer. For two years. The last year was the first year; only one
vear really.
Question. One year besides the present year ?
Answer. One year; yes, sir.
Question. What position now do these return-flue boilers occupy with
regard to others?
‘Answer. About two years ago there was probably 150 wood-burner
engines sold for threshing purposes. The last year there was probably
not 30 sold that way, and there was not more than 2 straw-burners with
a return-flue burner sold ; ; well, there might have been a half a dozen
of them. Last year there was over 100 straw-burner boilers sold
197 = and probably not more than 20 wood-burner boilers.
Question. Which year was it there were only two straw-burners
sold—return- flue boilers ?
Answer. Well, two to a half a dozen. I could not state positively
there was only two sold.
Question. Well, which year do you refer to?
Auswer. Three ‘years ago. :
Question. Well, have these return-flue boilers superceded everything
else now in the market ? :
Answer. To a very large extent, yes, sir. We probably sell 16 to one
of the other kind.
Question. Now, what is the profit made upon this invention of Mr.
hice’s, that is, the attachment or the feeding device to a return-flue
boiler, in selling the machines ?
198 Answer. 8 to 900 dollars apiece.
Question. You have heard the last witness examined with re-
gard to the royalty which the Ames Iron Works was paying them ?
Answer. Yes, sir.
Question. What offers, if any, have they made you for the privilege
of selling on this coast that invention ?
Mr. ESTEE. Who is that ?
Mr. WHEATON. The Ames Iron Works. i
Mr. ESTEE. We object to that; they are nota party. An offer is not
testimony.
The Court. It is competent evidence to ascertain what he could ob-
tain for it.
(Defendant excepts.)
199 Answer. They offered me what was equal to 12,000 dollars for
the privilege of sending 30 straw-burner engines to the firm of
Baker & Hamilton, to be sold on this coast.
Mr. WHEATON. How long ago was that offer made ?
Answer. Within 2 or 3 days of Thanksgiving Day, which was in No-
vember, the 25th of Nov.; within a day or two of that. date.
Question. Of last year, 1876?
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48 HEALD VS. RICE.
Answer. Yes, sir.
Question. Well, did you accept that offer or not?
Answer. I did not.
Question. Why?
200 Answer. They then wanted to know what would be the dam-
ages for the 32 that they had sold prior to this.
Question. Now, what injury is it, or was it, to the business of Mr.
Rice, in 1875, the selling of these engines by J Mr. Heald, if you know?
Answer. Through him personally, in 1875 ?
Question. In 1875, what was the—yes—how much damages?
The Court. For each engine ¢
Mr. WHEATON. Yes, sir. .
Answer. If Mr. Heald had not sold them, and Mr. Rice had made and
sold them, it would have resulted in a profit to him of 6 to 800 dollars
on an engine.
201 Mr. BoOALT. We object to this last testimony in regard to the
damage which the witness declares had been done to Mr. Rice
by the fact of Mr. ‘Heald’s making engines and selling them, as totally
irrelevant and immaterial.
(The objection is overruled and defendant excepts.)
Cross-examilnation:
Mr. ESTEE:
Question. Mr. Hawley, this proposition made from Ames Co. was for
30 engines, was it?
Answer. 25 or 30; I think it was 30; I am quite sure it was 30.
Question. Thirty engines and no more?
Answer. No more. |
202 Question. Now, Mr. Hawley, wasn’t the proposition that they
should make thirty engines that year and 100 the next, making
130 engines, and also that this 12,000 dollars should settle the present
difficulty that existed between you and the Ames Co.?
Answer. It was not.
Question. Threatened litigation ?
Answer. What is the last remark ?
The Court. Threatened litigation.
Answer. No, sir; it was not. I understand your question now.
Mr. ESTEE. Simply and solely for thirty engines ?
2 Answer. Yes, sir.
203 Question. ‘hat was all there was in the proposition ?
Answer. That was all there was in the proposition.
Question. And that you sw ear to?
Answer. I do.
Question. Who made the proposition ?
Answer. Mr. Ames himself.
Question. Which Mr. Ames; what is his name ? 7
Answer. I could not tell you. Mr. Baker knows. I am not well
enough acquainted to know his name. He said that he had authority
from the Ames Iron Works.
Question. The young man, isn’t he ?
Answer. Yes, sir; you know him well.
204 Question. Didn’t he tell you m words that he hadn’t any au-
thority, but he wanted to know what your views would be?
Answer. He told me he had authority.
Question. Had authority ? |
Answer. Yes, sir. He told me that he wouldn’t like to assume the
oe
HEALD VS. RICE. : 49
authority, but he would consult with his partners at the East; and he
afterwards told me he had authority to do the whole thing, but he
preferred in a matter of that kind—a large amount—to consult with
them.
Question. Now, Mr. Hawley, you say the profit is 8 or 900 dollars?
Answer. I did state that.
Question. What is that on?
Answer. On a straw-burner engine.
Question. Is there any part of the engine about this concern—
205 ~=s this boiler (showing)? How much does that cost? We will
suppose that this is one of your return-flue boilers, with a Morey
feeder in perfect condition; what does that cost?
Answer. Well, I couldn’t say.
Mr. Boar. Just as you build them ?
Answer. If it was built just as we build them, and stopped there,
and not attach anything to them, we could get up something of that
kind for the actual cost of making.
Question. I am not asking what you could get us up one for, for we
are not buying them, sir. I want to know what you pay for these ma-
chines just as they are.
Answer. We never bought any thing of that kind.
206 Question. Or made them ? :
Answer. We have never made them exactly like that; but if
you want to know what that cost to make I can give you an idea” what
they would cost to make in the market.
Question. One of your own?
Answer. One of our own, or one of Mr. Heald’s.
Question. Well.
Answer. Not over 600 dollars.
Question. How much is the profit on it?
Answer. Never been sold that way.
Question. Well, I know, but what would be the profit on it—that
machine just as perfect as it is?
207 Answer. If they were sold for 2,000 dollars, and they would cost
. 600 dollars, the profit would be 1 400 dollars.
Question. No, sir. But what is the profit in this ?
Answer. They never have been sold that way. How can I tell the
profit? There is no price for them exactly.
Question. Well, what is it you sell in addition to these ?
Answer. We sell the engine portion of It.
Question. Oh, an engine ?
Answer. Yes, sir. |
Question. Is this suit for an engine? Is there anything in this suit
about an engine ? |
Answer. The papers will show.
208 Question. Well, | want to know. You have been testifying
about the profit of an engine. Now, is there anything in this ac-
tion pending before the jury relative to an engine, or any attachment
to an engine? |
Answer. It may read that it is a suit for straw-burner boilers. | If
you will hand me the papers, I will tell you how it reads.
Question. Then you don’t know what you have been testifying, do
you, Mr. Hawley ?
Answer. I think I do.
Question. Well, sir, will you tell the jury what the profit is, if you
REC. 193—4
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48 HEALD VS. RICE.
Answer. Yes, sir.
Question. Well, did you accept that offer or not?
Answer. I did not.
Question. Why ?
200 Answer. They then wanted to know what would be the dam-
ages for the 32 that they had sold prior to this.
Question. Now, what injury is it, or was it,to the business of Mr.
Rice, in 1875, the selling ot these engines by Mr. Heald, if you know | ? ;
Answer. Through him personally, in 1875 ? :
Question. In 1875, what was the—y es—how much dama ges? ’
The Court. For each engine ¢
Mr. WHEATON. Yes, sir. =
Answer. If Mr. Heald had not sold them, and Mr. Rice had made and
sold them, it would have resulted in a profit to him of 6 to 800 dollars r
| on an engine. |
201 Mr. BoALT. We object to this last testimony in regard to the
damage which the witness declares had been done to Mr. Rice
by the fact of Mr. Heald’s making engines and selling them, as totally
irrelevant and immaterial.
(The objection is overruled and defendant excepts.)
Cross-examination :
Mr. ESTEE: |
Question. Mr. Hawley, this proposition made from Ames Co. was for
30 engines, was it?
Answer. 25 or 30; I think it was 30; I am quite sure it was 30. ,
Question. Thirty engines and no more ? }
Answer. No more.
202 Question. Now, Mr. Hawley, wasn’t the proposition that they x
should make thirty engines that year and 100 the next, making |
130 engines, and also that this 12 ,000 dollars should settle the —
difficulty that existed between you and the Ames Co. ?
Answer. It was not.
Question. Threatened litigation ?
Answer. What is the last remark ?
The Court. Threatened litigation.
Answer. No, sir; it was not. I understand your question now.
Mr. ESTEE. Simply and solely for thirty engines ?
Answer. Yes, sir.
203 Question. ‘Chat was all there was in the proposition ?
Answer. That was all there was in the proposition.
Question. And that you swear to?
Answer. I do.
(juestion. Who made the proposition ?
Answer. Mr. Ames himself.
Question. Which Mr. Ames; what is his name? eo
Answer. I could not tell you. Mr. Baker knows. I am not well
enough acquainted to know his name. He said that he had authority
from the Ames Iron Works. | |
Question, The young man, isn’t he? i ee
Answer. Yes, sir; you know ‘him well.
204 Question. Didn't he tell you in words that he hadn’t any au-
_ thority, but he wanted to know what your views would be?
Answer. He told me he had authorit y. .
| Question. Had authority ? ,
Answer. Yes, sir. He told me that he wouldn’t like to assume the
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HEALD VS. RICE. a 49
authority, but he would consult with his partners at the East; and he
after wards told me he had authority to do the whole thing, but he
preferred in a matter of that kind—a large amount—to consult with
them. | |
Question. Now, Mr. Hawley, you say the profit is 8 or 900 dollars?
Answer. I did state that. |
Question. What is that on?
Answer. On a straw-burner engine.
Question. Is there any part of the engine about this concern—
205 ~=this boiler (showing)? How much does that cost? We will
suppose that this is one of your return-flue boilers, with a Morey
feeder in perfect condition; what does that cost?
Answer. Well, I couldn't Say.
Mr. BOAT. Just as you build them ?-
Answer. If it was built just as we build them, and stopped there,
and not attach anything to them, we could get up something of that
kind for the actual cost of making.
Question. I am not asking what you could get us up one for, for we
are not buying them, sir. I want to know what you pay for these ma-
chines just as they are.
Answer. We never bought anything of that kind.
206 Question. Or made them?
Answer. We have never made them exactly like that; but if
you want to know what that cost to make I can give you an idea what
they would cost to make in the market.
Question. One of your own?
Answer. One of our own, or one of Mr. He ld Ss.
Question. Well. |
Answer. Not over 600 dollars.
Question. How much is the profit on it?
Answer. Never been sold that way. —
Question. Well, I know, but what would be the profit on it—that
machine—just as perfect as it is?
207 Answer. If they were sold for 2,000 dollars, and they would cost
600 dollars, the profit would be 1 ,400 dollars.
Question. No,-sir. But what is the }.ofit in this?
Answer. They never have been sold that way. How can I tell the
protit? There is no price for them exactly. |
Question. Well, what is it you sell in addition to these ?
Answer. We sell the engine portion of it.
Question. Oh, an engine ?
Answer. Yes, sir.
Question. Is this suit for an engine? Is there anything in this suit
about an engine ? |
Answer. The papers 3 will show.
208 Question. Well, | want to know. You have been testifying
about the profit of an engine. Now, is there anything in this ac-
tion pending before the jury relative to an engine, or any attachment
to an engine?
Answer. It may read that it is a suit for straw-burner boilers. If
you will hand me the papers, I will tell you how it reads.
Question. Then you don’t know what you have been testifying, do
you, Mr. Hawley ?
Answer. I think I do.
Question. Well, sir, will you tell the jury what the profit is, if you
REc. 193—4
ew
ae HEALD VS. RICE.
know, on one of those boilers—return- flue boilers, with the Morey straw
attachment, just as Rice makes them?
209 Answer. Well, we have sold the boiler without that running-
gear and without some other portions of that—we have sold
them for 700 dollars.
Question. Without any engine?
Answer. 750 and 650 dollars.
Question. Now, what is the profit on those ?
Answer. They can be made for 300 dollars.
Question. Do you make them ?
Answer. We contract to have them made.
Question. How much do you say?
Answer. We have paid as high as 400 dollars laid down in San Fran-
cisco; that is, they have cost us $400 laid down in San Francisco.
Question. What does that cover?
Answer. Mr. Rice is making them
210 Question. (Int’g.) What does that cover?
Answer. It covers the boiler, without the smoke-stack and
without the running-gear. .
Question. What do you mean by running-gear ?
Answer. Well, the wagon that is underneath that boiler there.
Question. N ow, add the smoke-stack and wagon in—how much
would it cost? : | :
Answer. The wagon is worth 150—a good one. The smoke-stack,
say, 15 or 20 dollars.
Question. Does that include the feeder?
Answer. Yes, sir.
Question. That would be 520 dollars just, a mathine like that, ready
to go out in the fields. Now, how much would you sell that for without
the engine?
211 Answ er. We should sell it for 950 dollars.
Question. Have you sold anybody one of these for 950 dollars?
Answer. No, sir. ;
Question. You have not? | .
Answer. No, sir.
Question. Didn’t you sell Mr. Farmer one for 425 dollars ?
Answer. No, sir. | |
Question. How much did he pay you for it ?
Answer. We did not sell him one. I will explain, if you wish me to,
and tell you just what I did. I told you a little while ago that we had -
sold the boiler without the smoke-stack. Now, you want to know how
much the smoke-stack and running-gear and all cost, and whether we
sold the whole thing, and I say we have not.
212 Question. I did not understand you to say about the smoke-
stack.
Answer. Yes, sir; you asked me the price of the smoke-stack and the
running-gear, and how much it all amounted to. We have sold Mr.
Farmer one of those boilers, with the tube, without the smoke-stack—
that is, I think, without the smoke-stack and without the running-gear—
for 600 or 650 dollars.
Question. What was the profit on that?
Answer. It cost 400. The profit was 200 or 250 dollars.
Question. But you state that the boiler cost 400 put down, and the
running-gear 150. You: said 150 for the running-gear, didn’t you?
Answer. I did.
Mr. BoALT. And how much for the smoke-stack ?
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HEALD VS RICE. oe
213 = Answer. 15 or 20 dollars.
Mr. ESTEE. Then, when you testify that the profits were from
8 to 900 dollars on these machines, you meant. the boiler and the straw-
feeding arrangement for getting up steam, and you meant the engines
that went with it, didn’t you? |
Answer. That is what is generally solid. In 9 cases out of ten they
are sold as complete engines. There is very few parties want to buy a
boiler separate.
Question. Now, what is the profit in making the tube; what does the
tube cost?
Answer. That feeding device there ?
Question. Yes, sir. |
Answer. I don’t know. I should say 10 or 15 dollars.
214 . Question. Can any of these boilers that you have been selling
be used for burning wood or coal ?
Answer. Yes, sir.
Question. What changes have to be made, if any ?
Answer. Simply the erate- bar changed. WwW ell, I would say that if
they have that tube on them, they would naturé lly take off that tube.
They would not feed through that; they would take that off and feed
through the open door. |
Question. Do you use that same device in your straw-burners now
that Rice adopted—the regular Morey patent ; ; do you use the same
device now ?
Answer. Yes, sir; except that I think his door is on the inside, which
goes up with a spring, and the door is now put on the outside of the
tube.
215 Question. Now, Mr. Hawley, suppose a man should come to
you to buy one of those return- fiue boilers, without the straw-
burning device at all, just the doors in and grate, what would you ask
him for it, the running- gear all on, just as this i is?
Answer. Without any door ?
Question. Just ready for burning wood.
Answer. Ready for burning wood, without any attachments at all
in front?
Question. Without any straw-attachment at all.
Answer. With the running-gear and all?
Question. | mean the wagon part; no engine, but just the wagon
part.
‘The Court. Just take a return-flue boiler alone, without the
216 = straw-burning attachment, you mean?
Mr. ESTEE. The return-flue boiler; yes.
Mr. Boat. To go into a neighborhood where ther re is no straw, to
burn wood.
Answer. Sell them for 750 dollars or 800 dollars.
Mr. ESTEE. Now, put on the straw-attachment, how much is it?
Answer. With the running-gear ?
Question. Just the same machine.
Answer. From 950 to 1,000 dollars.
Question. (Showing.) What I mean is to take one of these all set up,
on which, with just this pulled out so it would burn wood—say
217 = it is going to Oregon, or any other place—a return-flue boiler,
you would ask how much?
Answer. Just the boiler, without any engine to it at all, with the
running-gear ?
Question. With a running-gear.
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Answer. And with the tube ?
Question. The tube out.
Answer. The tube out; we should probably sell it for 950 to 1,000
dollars.
Question. Now, put the tube in and the straw-burner, and how much |
would it be?
Answer. That is what I say, with the tube i in, $950,
Question. Now take the tube out ? |
Answer. Well, we would probably sell it for 150 dollars less.
Question. That is, you charge $150 for this tube?
218 Answer. We nev er have sold them that w vay; no, sir; we
wouldnt sell them :
Question. (Interr’pt’g.) That is what you mean ?
Answer. If we should seli them, that would be, perhaps, the price we
should put on them. We have never sold them; we would not sell a
tube separate. :
Question. But if a man should come here and want a return-flue
boiler engine to take to Oregon, or any other place where wood is
cheaper than straw, you would sell it to him, wouldn’t you ?
Answer. We would sell him that thing as it is, with the running-gear
complete. I should judge from what we did last year that we would
sell it for from 950 to 1,000 dollars. We might not be willing to sell
it for any price, but trom what we have done I should think we
would,
219 Question. The same without the straw-burner attachment ?
Answer. Probably 150 less, judging from what we did last
year; yes, sir.
Question. That straw-attachment there is the Morey attachment, is
it not ? |
Answer. Yes, sir.
Question. (Showing diagram.) Mr. Hawley, I will ask you to look at
that diagram. I will ask if you ever saw one of those; and, if so, when
and where ? }
Answer. I don’t think I have ever seen one like that before.
Question. You don’t think you have?
Answer. No, sir; I have seen something very similar to that, but —
any thing made exactly like that I do. not think I have seen.
220 (A full, true, and correct copy of the diagram shown witness is
hereunto ‘attached, and marked Exhibit C.)
WITNESS. (C ontinuing.) There is something down on First street
which I do not think is made by that party. They are very similar to
that straw-burning engine.
Question. In your testimony, when you spoke of the state of the art,
and straw -burning, NC., we don’t under stand you to say you know
all that has been going on in the whole world, or the whole of the United
States, about straw -burners. |
Answer. I don’t think you understand me in that way.
Question. What you pretend to say is, so far as your knowledge and
experience goes, that you testify to such and such facts ?
Answer. Yes, sir; that is so.
221 Question. You have.not been East and examined matters there ?
| Answer. I have not.
Question. And you have not been in Europe and examined matters
there ? :
Answer, No, sir.
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HEALD VS. RICE. 58
Question. You have heard of straw-burners, though, in the East and
in Europe, have you?
Answer. I have heard of straw-burners in Europe. I don’t know
that I have heard of a straw-burner being used in the Eastern States,
except what was there manufactured, and tested there, to go to this
coast. |
Question. But this burning of straw and burning of wood depends
largely on the proposition, doesn’ t it, whether straw is cheaper than
wood ?
Answer. It does.
222 Question. In countries, then, where straw is cheaper than wood
it is a great point to burn str: aw, is it not?
Answer. It i is. |
/ Question. But where the straw is more expensive than wood, the ‘nthe
reverse would be the case, wouldn’t it ?
Answer. That is so. |
Question. Then, in burning straw in California it was accomplished
more by overcoming prejudice than the introduction of new machinery,
wasn’t it? When you attempted to introduce straw-burners here, the.
great mass of the farmers were opposed to them, were they not, from
prejudice ? |
Answer. We were not the first to introduce them.
223 Question. But when they were first introduced, don’t you know
that was so?
Answer. That is my impression that it was so.
Question. On account of fire and for other reasons ?
Answer. Yes, sir; when we took hold of it there was a large demand
for them; they had come into successful use.
Question. Did all your return-flue boilers that you sent out work well
the first time with the straw-burners? |
Answer. The boiler worked well; the engine did not in all cases,
Question. Didn’t you have trouble with your feeder sometimes ?
Answer. With the feeding attachment or the man that fed the en-
gine ?
234 Question. With the general working of the boiler ?
Answer. No, sir.
Question. And the machine ?
Answer. No, sir.
Question. You never sent men out to fix them for the reason that
they did not work ? |
Answer. No, sir; none went. I told you we had trouble with the en-
vines connected with our straw-burner boilers. We did send men out
to remedy that.
~ Question. That is, as to the engine ?
Answer. Yes, sir.
Question. But not with the boiler ?
Answer. Not with the boiler. We had no troubie with that or the
feeding attachment.
Question. Do you know, as a question of fact, whether straw
225 will not burn and do just as good work in those boilers without
any kind of tube or attachment at all, just the ordinary old com-
mon door?
Answer. It may do well; I have never tested it that way; I only
know what parties have told me.
Question. Do you know of straw-burning engines being in use, or en-
gines where they burn straw being in use, where they can burn wood,
sage ren
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