Record and brief — John Dobson and James Dobson, Appellants, vs. John Dornan, Francis Maybin, Robert Dornan & John Pickens, Trading as Dornan, Maybin & Company

TRANSCRIPT OF RECORD.

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1884.

4 | | No. dow 20)?

JOHN DOBSON AND JAMES DOBSON, APPELLANTS,

1S

JOHN DORNAN, FRANCIS MAYBIN, ROBERT DORNAN |

& JOHN PICKENS, TRADING AS DORNAN, MAYBIN & ;

COMPANY. __ :

‘ APPEAI, FROM THE CIKCUIT COURT OF THE UNITED STATES FOR THE

i EASTERN DISTRICT OF PENNSYLVANIA.

FILED MARCH 9, 18853. .

Sr eo re ee

BG ieee a Re ae

oceania eee ene Pee Sb Re 4 vi aattea PE

SUPREME COURT OF THE UNITED STATES.

: | OCTOBER TER”, 1884.

No. 482.

JOHN DOBSON AND JAMES DOBSON, APPELLANTS.

“Us

JOHN DORNAN, FRANCIS MAYBIN, ROBERT DORNAN

9 & JOHN PICKENS, TRADING AS DORNAN, MAYBIN &

{ COMPANY.

: x

f APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE

EASTERN DISTRICT OF PENNSYLVANIA..

INDEX.

Original. Print.

IONE sy occu Ser oa 2 sani i ea I i

Bill of complaint —_ .- sie dcthiade eaeiaecns 5s eon paca ai 2 I

Answer ap aS se bene eae ak i gear ejancnn 4 9 5

PICMNIOYT . iinw Souk acing 5 ee ee ae sate aeaenuaaen 12 7

Order appointing examiner | ___. ; (aon : score 14 7

Stipulation as to testimony ee ee as Sr Bone Mare 14 8

) Evidence for complainants ... .-.--- oe a itp edn Cee 15 8

; Testimony of Dixon Bean ae Haney pate’, ah! fe 15 8

: Charles A. Righter .--- a cain tae ae ee 18 10

Arthur McMaster ._.. cua Guus aecee 1s 10

John Lorne... .. oe aa tll: aw et aks aslaer ide dees al 19 11

| SOU WO BEN iia ss rc hk a ee : 20 11

George W. Golden fae a iwaace he saat be 26 15

Thomas | lepuy Peer Sw ada gee 5 erases 26 16

Alex. W. Skilton i ciauces iheone aad: ee 27 16

George W. Golden (recalled) ...........- sea ater at 31 1g

John Kothera . Pie Petre, Biol oni tar aoa ee at 31 19

Exhibit No. 4—Letter of J. & J. Dobson to Dornan, Maybin & Co,

May 20, 1874 ae corgi) Ree peer =a 2c

JUDD & DETWEILER, PRINTERS, WASHINGTON.

INDEX.

,

Evidence for defendants.__. ___. __.... _--. he 6a ods eens

Testimony of Thomas Finley -- ~~~. iis ee

irra Fores a,

john T. W costar: 2. NG SPOTS AC ae Senn

Hearing _. sae nee in heer ow ow ee ;

Interlocutory. decree -. aaa SSS : ‘

Master’s report : RET Cae ee He rate ; Diaw

Evidence for complainants before master. _- ee Oe Sa, ees

‘Testimony of James Deamon . 22: gar Oe A

Robert Dornan PEI Lc eae

Allen Cameron ; ea

flartley Knight peace races

‘| homas Depuy as ue

Benjamin ©. Martin op ie Be

George ID). Bromley Pee raee es a

James Dobson (vecatied?) ....

Robert Dornan (recalled) __. coe

Exhibit A—Statement of garpet- made in the pattern infringed -___-.

B—Statement of prices of yarn sold at certain dates

(

1)—Statement of carpet made after pattern No. 408 by Dornan,

Maybin & Co, SO ee ear aoe : eee ie

K—Statement showing cost of making carpet for 1874 and

oe OFS a Bae OLY ene atl

Evidence fur defendants before master _. __. —-. oe ma

Testimony of James Dobson me ee a ee he

_* James Judge -.._.. ae : oe

Exceptions to master’s report (defencdants’ } . coer eS

Supplemental report of master. __- ey. ee

Hiearing on exceptions ca oie, a ee ees

Final decree Ret Ore | Paice costae et oe

Order allowing appeal .__~-. pene ‘ wie fee Aen pao ae

Bond i ew

: Citation aus “oct ;

Proof of service of citation Sepa ene eR NIU ne geen gO ce

Clerk’s certificate .____- : : on

t

"Statement of cost of making ingrain carpet in March, 1875

Original.

te

Print.

CERCA EOS, . &

|

AL. VS. JOHN DORNAN RET AL.

JOHN DOBSON ET

] UNITED. STATES OF AMERICA, as

Eastern District of Pennsylvania,

In the Circuit Court of the United States in and for the Eastern

District of Pennsylvania, in the Third Circuit. No. 2. April

Sess., 1875. In Equity.

JOHN DoRNAN, Francis Maye IN, RopeERT DorNAN, and Joun Pick-

ENS, Trading as Dornan, Maybin and Company,

| v.

JOHN Dopson and JAMES Dopson.

Pleas and proceedings before the honorable the judges of the circuit

court of the United States in and for the eastern district of Penn-

sylvania, in the third circuit, of April session, 1875. No. 2.

It is thus contained :

Be it remembered that on the 12th day of February, A. D. 1875,

the complainants, by their solicitor, L. C. Cleemann, Esq., comes into

our said court here and file of record their bill of complaint against

John Dobson and James Dobson, which said bill, being read, is as

follows, to wit:

2 In the Circuit Court of the United States for the Eastern Dis-

trict of Pennsylvania. In Equity.

To the honorable the judges of the circuit court of the United States,

eastern district of Pennsylvania :

John Dornan, Francis Maybin, Robert Dornan, and John Pick-

ens, trading as Dornan, Mayvbin & Co., bring this their bill of com-

plaint against John Dobson and James Dobson.

And thereupon your orators complain and say :

That they are informed and believe that one Charles A. Righter

was and is the original and first inventor of a certain new and use-

ful design for a carpet pattern to be inwrought into two-ply ingrain

and other carpeting, fully described in the letters patent hereinafter

mentioned, and which had not been known or used before his said

invention, and which was not, at the time of his application for a

patent, as hereinafter mentioned, in public use, or on sale, with his

consent or allowance.

And your orators, on information and belief, further show unto

vour honors that said Charles A. Righter, being so, as aforesaid, the

first inventor and discoverer of said design for a carpet pat-

a tern, asaforesaid,and being also a citizen of the United States,

did, on the nineteenth day of August, one thousand eight

hundred and seventy-three, upon due application therefor, obtain

letters patent of the United States for said invention and design for

a carpet pattern as aforesaid, which : said letters patent were issued

in accordance with the request of said Charles A. Righter to the said

Dornan, Mavbin & Co., as the assignee of his said inventor's whole

right therein and thereto, before grant of lette rs patent as is by statute

in such ease made and provided, in due form of law, under the seal

of the Patent Office of the United States, signed by B. R. Cohen, the

[—452

treat

et a

cee ae

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

oN

then acting Secretary of the Interior, and countersigned by M. D.

Leggett, Commissioner of Patents of the United States, bearing date

the day and year last aforesaid, and numbered 6822, whereby there

was granted and secured to the said Dornan, Maybin & Co., and

their assigns, or intended so to be, for the term of three and one half

years, from and after the date of said letters patent, the full and ex-

elusive right and liberty of making, weaving, using, and vending to

others to be used, the said invention and design for a carpet pattern

as aforesaid, as set forth in said letters patent here in court, ready to

be produced as your honors may direct, will more fully and at large

appear, and by virtue whereof said Dornan, Maybin & Co. became

and are the sole owners of all the rights and privileges granted and

secured, or intended so to be granted and secured, in and by said

letters patent. |

And your orators further show unto your honors that by virtue

of the premises the said Dornan, May bin & Co. became and now are

the sole and exclusive owners of said letters patent and invention

and design for said carpet pattern, and of all the rights and_ privi-

leges granted and secured, or intended to be so granted and secured

thereby ; and that since said Dornan, Maybin & Co. became the

owners thereof as aforesaid, the said Dornan, Maybin & Co. have in-

vested and expended large sums of money, and have been to great

trouble in and about said invention, and for the purpose of

I carrying on the business and manufacturing and selling said

design for a carpet pattern, and making the same profitable

to said company and useful to the public; and that said invention

and design has been and is of great benefitand advantage, and that

two-ply ingrain and other carpetings have been and are still made

by them according to said design for a carpet pattern in colors simi-

lar to those painted on the dr: aWwihgs accompanying the specification,

and in other colors substituted in their place and sold by said Dor-

nan, Maybin & Co. to great advantage to the public, and that the

public have generally ac ‘knowledge d and ac quiesced in the aforesaid

rights of your orators. And your orators believe that they will

realize and receive large gains and profits therefrom if infringements

by said defendant and their confederates shall be prevented.

Yet the said defendants, well knowing the premises and rights

secured) to your orators aforesaid, but contriving to injure your

orators aforesaid, and to deprive them, vour orators, of the benefits

‘and advantages which might, and otherwise would, accrue unto

vour orators from said invention and design for a carpet pattern,

and trem the sole m: king and selling carpets made in accordance

therewith, alter the issuing of the letters patent as aforesaid, and before

the commencement of this suit, did, as your orators are informed and

believe, without the license or allowance, and against the will of

vour orators, and In violation of their rights, and in infringement of

the aforesaid letters patent, and the rights secured the reby, unlaw-

fully and wrongfully, and‘in defiance of the rights of vour orators,

make, construct, weave, use, and vend to others to be used, two-ply

ingrain and other carpeting in ide according to, and employing and

containing, suid Invention and design for a carpet pattern ; ‘and that

ET

JOHN DOBSON

AL. VS. JOHN DORNAN ET AL. 3

the said John Dobson and James Dobson, and each of them, still

continue so to do, and that they threaten to make the aforesaid two-

ply ingrain and other carpeting in large quantities, and to supply

the market therewith, and to sell the same for the best prices that

they can obtain, to the manifest injurv of vour orators, and all in defi-

ance of the rights acquired by and secured to your orators as

5 aforesaid, and to their great and irreparable loss and injury,

and by which thev have been, and still vour orators are be-

ing, de prived of great gains and profits, which your orators might

and otherwise would have obtained, but which have been received

_and enjoyed, and are still being received and enjoved, by the said de-

féndants by and through their aforesaid unlawful acts and doings.

And your orators further show unto vour honors, on information

and belief, that said defendants have sold large quantities of said

two-ply ingrain and other carpetings made in accordance with and

in imitation of the said design for a carpet pattern of your orators,

and have a large quantity on hand, which they are offering for sale,

and have made and realized large profits and advantages therefrom,

but to what extent and how much exactly vour orators do not know,

and pray a discovery thereof.

And your orators say that the use of said invention and design for

a carpet pattern by said defendants and their preparation for and

avowed determination to continue the same, and their other afore-

said unlawful acts in disregard and defiance of the rights of your

orators have the effect to encourage and induce others to venture to

infringe said patent in disregard of the rights of your orators.

And your orators further show unto your honors that your orators

have always firmly affixed and now firmly affix to each roll of car-

peting, bearing the design for a carpet patte rn aforesaid, so made

and sold by them as ‘aforesaid, a certain label, containing, in words

and figures, due notice that the same was and is patented, and of the

date and number of the letters patent granted therefor.

And vour orators further show unto vour honors, on information

and belief, that the defendants in this suit are engaged in the In-

fringements and unlawful acts above complained of in the city of

Philadelphia, in the State of Pennsylvania, but whether said defend-

ants are so engaged in the manufacture, use, and sale of said design

for a carpet pattern in two-ply ingrain and other carpeting,

6 as principals, or in what other way are concerned therein,

vour orators do not know and cannot state,and pray a discov-

ery thereof by said defendants, and that said de fendants may fully

and particularly set forth how they are engaged as aforesaid in said

manufacture, use, and sale, and how long they have been engaged

or concerned therein, and in what wav and to what extent; and

forasmuch as your orators can have no adequate relief except in

this court. | .

To the end therefore that the said defendants may, if they can,

show why your orators should not have the relief hereby prayed,

‘and may upon their best and utmost knowledge, remembrance, in-

formation, and belief, full, true, direct, and perfect answers mi ake to

the premises, and to all the several matters hereinbefore stated and

<a. oe

4. JOHN DOBSON ET AL. VS. JOHN DORNAN

ET AT.

charged as fully and particularly as if ceparat >and severally inter-

-rogated as to each and every of said matters, aa miav be compelled

to account for and pay to your orators the profits by them acquired,

and the damages suffered by your orators from the aforesaid un-

lawful acts.

And your orators pray ‘that the said defendants, John Dobson and

James Dobson, and each and eve ry of them, their servants, agents,

attorneys, and workmen, and eac +) and every of them, may be re-

strained and enjoined by the order and injunction of this honorable

court, from direetly or indirectly making, constructing, weaving,

using, vending, dé Jivering, working, or putting into practice, opera-

tion, or use, Or In anywise Ccounte He iting or imitating the said in-

vention or design for a carpet pattern, to. be sols In two-ply

ingrain or other carpeting, or any part thereof, or any two- ply In-

grain or other carpetings made in accordance therew ith, im imitation

thereof, or like or similar to those which your orators have hereto-

fore made, and that the said defendant may be decreed to pay the

costs of this suit, and that your orators may have such other and

such further relief as to this honorable court shall seem meet, and

as shall be agreeable to equity.

May it please your honors to grant unto your orators the writ of

Injunction, Issuing out of and under the seal of this honorable

mn due form of law, comm: nding, enjoming, and re-

7 court,

straining the said defendants, and each of them, their ser-

vants, agents, attorneys, confederates, and workmen, and each and

eyery of them, as is hereinbefore in that behalf prayed.

May it please vour honors to grant unto your orators the writ e

subpoena, issuing out of and under the seal of this honorable court,

directed to the said defendants, commanding them by a certain day,

and under a certain penalty, to be and appear in this honorable

eourt, then and there fo answer the premises, and to stand to, and

abide such order and decree as may be made against them.

And your orators will ever pray, &e. :

| JOLIN DORNAN.

RRANCIS MAYBIN.

ROBERT DORNAN,

: JOLIN PICKENS,

-L. C. CLEEMAN,

Solicitor and of Counsel for Coniplainants.

UNITED STATES OF AMERICA, }

Eastern District of Pennsylvania, j

On this sixth day of February, [S75, before me personally ap-

peared Robert Dornan, one of the oho complainants, who being

by me duly sworn, did depose and sa

He has read the foregoing bill of ai aint subscribed by him,

and knows the contents thereof, and that the same is true of his own

knowledge, except as to the matters therein stated on information

| and belief, and as to those matters he believes it to be true.

ROBERT DORNAN.,

N N e Pe

SA RE AS A NURIA ERE ET SOC RRM MRED: Ainge LAE ie ABE 52 CR NS

VS. JOHN DORNAN ET. AL.

ET AU.

JOHN DOBSON

Affirmed to and subscribed before me, the day and year first above

written. ge

SAMUL KL BELL,

U. S. Commissioner.

5S (Endorsed:) No.2.) April sess., 1875. United States circuit

court, eastern district of Pennsylvania. In equity. John

Dornan ef al. vs. John Dobson and James Dobson. Bill of com-

plaint. Sir: Issue subpcena, returnable to the first Monday of April

next. L. C. Cleemann, sol’r & of counsel for compl'ts. Filed Feb-

ruary 12th, 1875.

9). And afterwards, to wit, on the 15th day of March, A.D.1878,

the defendants, by their solicitor, Richard P. White, Esq., came

into our said court bere and file- of record their answer to the com-

plainants’ bill of complaint, which, being read, is as follows, to wit:

Answer to Bill of Complaint.

In the Cireuit Court of the U.S. for the Eastern District of Pennsyl-

vania. April Sessions, 1875. No. 2.

Jounx DorNAN, FRANCIS MAybin, Ropert Dornan, and JOHN

Pickens, Trading as Dornan, Maybin «& Co.,

Us,

JoHN Dopson and James Dopson..

These defendants, now and at all times hereafter, saving and _ re-

serving to themselves, and each of them, all benefit’ and advantage

of exce ption which can or may be had or taken to the many errors,

uneertainties, and other iniperfections in the said complainants’ bill

of complaint contained, for answer thereunto, or unto so much and

such facts thereof as these defendants are advised is or are material

or necessary for them, or any of them, to make answer unto, they,

these defendants, seve rally answering, say:

That these defendants have been informed, and believe, that one

Charles A. Righter was and is the original and first inventor of a

certain design for a carpet pattern, as set forth in the bill of com-

plaint; but these defendants do not know the same of their own

knowledge.

And these defendants, further answering, say they. have heii in-

formed. and believe it to be true, that the said Charles A. Righter

did, on the 19th dav of August, 1573, obtain letters patent of the

United States for said invention and design for a carpet pattern as

aforesaid, which letters patent were issued to the said Dornan, May-

bin & Co., as the assignee of said inventor’s whole right therein and

thereto, bearing date, signed, countersigned, and numbered as set

forth in the bill of complaint, whereby there was granted and _ se-

cured to the said Dornan, Mavbin & Co., and their, assigns, for the

term of three and one-half vears, the full and exclusive right

10 of making, weaving, using, and vending to others to be used,

the said invention and design for a carpet pattern as afore-

free as

GH JOHN DOBSON ET AL. V3. JOHN DORNAN ET AL.

said, as set forth in the bill of complaint; but these defendants, for

greater certainty therein, crave leave to refer to the said letters pat-

ent when the same shall be produced.

And these defendants, further answering, say that they have

never heard or been informed, save by the bill of complaint, whether

the said Dornan, Maybin & Co. became and now are the sole and

exclusive owners of said letters patent and invention and design for

said carpet pattern, or whether the said Dornan, Maybin & Co. have,

since becoming the owners thereof as aforesaid, invested and ex-

pended large sums of money, and been to great trouble in and about

said invention, or wasps two-ply ingrain or other carpetings have

been and are still made by them, ac cording to said design for a car-

pet pattern in colors, and sold by said Dornan, M: ivbin & Co. tothe pub-

lic,or whetherthe public have generally ae knowledge dand acquiesced

in the rights of the complainants, as alleged in the bill of complaint ;

and these defendants cannot set forth as to their belief or other-

wise in the aforesaid allegations in the bill of complaint.

And these defendants further severally say that they did not, nor

did either of them, to the knowledge or belief of the other of them,

after the issuing of the letters patent as aforesaid, and betore the

commencement of this suit, without the lcense or allowance, and

vains? the will of the complainants, and in violation of their rights,

and in infringement of the aforesaid letters patent, and the rights se-

cured thereby, make, construct, weave, use, or vend to others to be

used, two-ply ingrain or other carpeting, made according to and em-

ployingand containing said invention and design fora carpet pattern ;

nor do the said defendants, or either of them, still continue so to do,

or threaten to make the aforesaid two-ply ingrain or other carpet-

ing in large quantities, as alleged in the bill of complaint.

And these defendants, further answering, sav that it may be true,

for anything these defendants know to the contrary, that

1] the complainants have always firmly affixed, and now firmly

aflix, to each roll of carpeting, bearing the design aforesaid,

so made and sold by them as aforesaid, a certain label containing

due notice that the same was and is patented, &e., as set forth in the

bill of complaint, but these defendants are utter strangers to all and

every such matters, and cannot form any belief concerning the same.

All which matters and things these defendants are ready and will-

ing to aver, maintain, and prove, as this honorable court shall direct,

and humbly pray to be hence dismissed with their reasonable costs

and charges in this behalf wrongfully sustained.

JOHN DOBSON.

JAMES DOBSON.

This twelfth day of Mareh, A. D. 1875, personally appeared before

me the above-named defendants, John Dobson and James Dobson.

and, being duly sworn, did declare and say that the statements con-

tained in the above answer were correct and true to the best of their

knowledge, information, and belief.

te AL. | . CHARLES H. WHITE,

| Notary Public.

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. ee

(Endorsed :) CC. U.S. 2 unl sess., 1875. . Dornan et al. vs.

Dobson et al. In equity. Answer to bill of complaint. Filed 13

March, 1875. R. P. White. ;

12 And afterwards, to wit, on. the 19th day of April, A. D.

1875, the compl: inants, by their solicitor, L. C.Cleemann, Esq.,

come into our said court here and file of record their replie ation to

the answer of the reapers, which, being read, is as follows, to

wit:

- a =

U.S.C. C., E. D. of Penna. April Sess., 1875. No.2. In Equity.

JOHN DoRNAN, FRANcIS MAaysin, Ropert Donnan, and Jonn Picxk-

ENS, Trading as Dornan, Maybin & Co.,

vs.

JoHN Dopson and JAMES Dopson.

The replication of John Dornan, Francis Maybin, Robert Dornan,

and John Pickens, trading as Dorn: an, Maybin & Co., complain-

ants, to the answer of ‘Sohn Dobson and James Dobson, defendants

These repliants, saving and reserving unto themselves all manner

of advantage of exception to the manifold insufficiencies of the said

answer, for replication thereunto say that they will aver and prove

their said bill to be true, certain, and sufficient in the law to be an-

C4 swered unto, and that the said answer of the said defendants is un-

certain, untrue, and insufficient to be replied unto by these repli-

- ants; without this, that any other matter or thing whatsoever in the

said answer contained, material or ineffectual in the law to be re-

plied unto, confessed and avoided, traversed or denied, is true; all

which matters and things these repliants are, and will be ready to

aver and prove as this honorable court shall direct, and humbly

pray as in and by, their said bill they have ~~ prayed,

L. C. CLEEMANN,

PPro for € omplainants.

13 (Endorsed :) 2 April sess. 1875. U.S.C. C., E. D. of Pa.

Dornan et a/.vs. Dobson et al. In equity. Replication. Cleemann.

Filed April 19, 1875.

14 And afterwards, to wit,on the 25th davof June, A. D. 1875,

| the complainants, by their counsel, appear in open court and

; move the court for the ap pone nt of an examiner, whereupon the

court made the following order, to wit :

U.S:C.C. Oct. Sess., 1874. No. 2.

DorRNAN ef al. vs. Dopson et al.

And now, to wit, June 25, 1875, on motion of ¢ gage solicitor for

comple Linants, the court appoint 3 Sussex D. Davis, rag xaminer, to

take the proofs in the above case, and report the same to the court.

ee

See ee

z ”

’ Ey:

~ : ‘

JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL.

U.S. C.C., E. D. of Penna. «In Equity. April Sess., 1875. No. 2.

JoHN Dornan, Francis Maypin, Ropert Dornan, and JoHn

court examiner in the said case to take the |

PickENs, Trading as Dornan, Maybin & Co.,

iene us,

Jounx Dopson and JAMES Dopson.

It is hereby agreed that the testimony taken in the above

~case before Thomas I. Merchant, Esq., have the same force and

15.

: effect as though Mr’ Merchant had been appoimted by the

roots and report the

same to the court. 2

: 3 RICHARD P. WHITE,

bor Defendants.

L. C. CLEEMANN,

For Coraplainants.

Juny 6, 1875.

Present: L. C. Cleeman, solicitor for plaintiffs; R. P. White, solici-

tor for defendants.

Dixon BEAN. sworn:

$i ¢

Tam thirty-nine vears of age, and reside in Chicago, Hhnois; |

-am in carpet business, in firm of Field, taghter & Co.; I have been

-* Exhibit marked

in this business eighteen years.

r tf M.. No: ft. July 6, IS75.” offered in eyi-

dence. ( Patent.) : ;

[exhibit marked * Exhibit No. 2, T. E. M., July 6, 1875,” offered -

In evidence. : 3

[am familiar with exhibit No. 2; I first saw it two or three years

ago; | think I first saw it at Dornan & Maybin’s; I know the de-

fendants in this suit: usually when I came to the market I cut off

some clippings or cuttings, more particularly to get colorings for

different patterns; Thad selected a quantity of them at home, and

directed my porters to put them up, and among them was [exhibit

No. PA In the second quality, and - had these samples directed to

the care of Mr. Dobson, or to the hotel; they reached the mill—a

portion of them—this piece amongst the number; after I had given

out orders for what carpets [ wished made, this piece was thrown

out one side, and | spoke to some one there, IT cannot say who

it was, and asked whether they could not get one up something

similar in color that complexion of carpet: there was no mention of

copying the patent; afterwards T received a carpet from the

16 defendants, which was similar to Exhibit No. 3, T. Ek. M.,

: July 6, 1875; TP think IT could distinguish the different manu-

factures; T should think that Exhibit No. 5 was made by Dobson,

the defendants; Exhibit No. 2 is, T think, the most artistic pattern ;

[ see a great number of different patterns in the carpet line in the

i

course of my business.

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 9

Q. From your know ledge of designs of carpet patterns, do you think

a designer could have produced E mpecau No. 3 without having first

seen Exhibit No. 2?

(Objected to by Mr. White.)

A. I could not say; I am not well enough posted in the art of de-

signing to give an opinion. Ido not know what access they have

to ; objec ts such as are produced in the design. These objects may be

very common, for ought I know; they may have design works con-

taining these different designs or objects.

(). Do you remember ever having seen a carpet bearing the design

of Exhibit No. 2 before you saw Exhibit No. 2?

A. I do not remember that I ever did; I have seen the Brussels

with a medallion figure in it about the size of the largest medallion,

but nothing in wool like it.

Cross-examined by Mr. WHITE:

My business in visiting the defendants was to order carpets made.

My purpose in producing samples to the defendants was to give them

an idea of the coloring that I wanted in the carpets. My idea was in

bringing on the pieces of carpet to give the manufacturer an idea of

‘the colorings I wanted in the carpets I might select; that is, in or-

dering from their patterns I could order them to make the carpets

with such colorings as I gave them. When I showed them Exhibit

No. 2, I asked thei if they could produce me something of that style

of color, and subsequently carpet (Exhibit No. 3) came from the de-

fendants. I should say the design of No. 3 is not the same as that

of No. 2. I have looked them over very carefully, and cannot find

one object in one which is like any object in the.other; every part of

the pattern of No. 5 is different, I think, from No. 2

7 Q). Leaving out similarity of color and similarity of position

of the medallions, is there any resemblance which you can

point out between the two patterns ?

A. Taking a glance or look at them, they have something of a

similar appearance; they wouldn’t bear to be criticized though.

Q. Be good enough to point out wherein they resemble each

other, e xcept in the general coloring and the size and position of the

medallions.

A. I don’t know as I could.

(. Can you say that the. two designs are substantially the same,

taken as a whole or taken in detail?

A. I think I answered that by saying that they are not alike in

design; but taking a glancing look at them they have a similar ap-

pearance.

Q. It is no uncommon thing, Is it, for ¢ carpets made by different

makers, and of ele arly different designs, where the obje ets are nearly

the same size, and be longing. to the same general class, and the col-

orings being the same, to have the sé same kind of similarity that you

observe in these?

A. I have seen cases of that kind.

2—452

ree

pier

le ans

i th Ha

oe

ee

eit

mee ee

meena oe - .

10 JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL,

(). Is have any difficulty in perceiving that these two exhibits are

of different designs whatever general similarity such as you have

3

alluded to there may be between them.

; A. No, Sir.

‘ he similarity of which you spe ak, then,is not such a similar-

@

ity as would lead you to mistake one pattern for the other?

“A. No.-sir.

DIXON BE AN.

Sworn and subscribed before me, this July 6, 1875.

SUSSEX D. DAVIS, Evaminer.

RIGHTER being duly sworn:

Tam twenty-two years old; my name is Charles A. W Tighter;

[ reside at No. 321 Richmond strect. Philade Tphia.

Exhibit No. 1 shown witness.

Jam familiar with that design; I am_ the

| invented it about 28th of July, 1875;

18 CHARLES A.

original inventor of

this design ; I assigned it to

the plaintills.

Cross-examined by Mr. WHire:

Every part of this design is original with me; I mean that every

sprig and leaf is my own composition, :

Q. And no part of the design suggested by any other design or

pattern seen by you?

A. No, sir. 7 .

: 3 CHARLES A. RIGHTER.

Sworn and subseribed, this 6th day of July, A. D, 1875.

SUSSEX D. DAVIS, Examiner.

ArtuurR McMaster, being duly sworn, says:

My name is Arthur McMaster; [am thirty years of age; I reside

at No. 24 Columbia avenue; Tam foreman of the plaintiffs; I am

familiar with Exhibit No. 2: it is made after the design contained

in Exhibit 1: it is correct: there is no difference at all: I ean’t

tell exactly when it was invented; I saw it when it was making,

but ] eannot give the exact time; Charles A. Righter invented it,

the last witness: | have been foreman of the defendants ever since

that was invented, and a yood while before; we have turned out at

one time on this pattern fourteen pieces per week ; this pattern has

been very successful; we have patterns that we only turned out one

piece per week ; with carpets of equal quality everything is

Hp In the design; the plaintiff’ have made large quantities of

carpets bearing this design.

Cross-examined by Mr. Wirre:

No questions. oo |

ARTHUR McMASTER.

Sworn and subscribed before me, this 6th day of July, A. D. 1875.

: SUSSEN D. DAV IS. Eacamener.

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 11

JouNn Dornan, being duly sworn, says:

My name is John Dérnan; I am one of the plaintiffs; I am

thirty-eight vears of age; I reside at No. 1424 Franklin street, in

the city of Philadelphia; I attend to the manufacturing, designing,

and machinery part of our business; I have been connected with

the carpet trade for twenty-eight years as carpet stamper, designer,

manufacturer, and weaver; I have got up great numbers of designs,

hundreds, perhaps thousands; No. 2 is more artistic than No. 3;

it is more artistic and more graceful.

Q. Do vou think, from your knowledge as designer, that any one

could have produced No. 3 without having first seen No. 2?

_A. In my estimation it would have been an utter impossibility ;

I can see that they have attempted and have transposed the figures

of the one in the other, but left the configuration the same; I never

saw No. 3 before I saw No. 2: I never saw anything like No. 2 until

Mr. Righter invented and produced it in our place; I think I saw

No. 3 first last summer; a party came into our place on Chestnut

street and wanted a piece of our No. 408; this is Exhibit No. 2; we

were ordered ahead upon it and could not let him have it.

(¢ jected to by Mr. White, to all conversation not in the presence

of the defendant.)

He said he could get it at Riegel’s, on Market street: I

20 told him I did not think so, as it was a patented carpet of

-ours; he said he could, and would’ bet his money on it; 1m-

mediately after he left, 1] went around to Mr. Riegel’s store, and

knowing the manager of the department, had a conversation with

him, and saw Exhibit No. 3 in Mr. Riegel’s place; that was the first

time I saw it. |

No cross-examination.

JOHN DORNAN.

Subscribed and sworn to before me, this 8th day of July, A. D.

1875. ! |

SUSSEX D. DAVIS, Examiner.

| Juty 9TH, 1875.

Present: Mr. Cleemann for complainants ; Mr. White for defend-

ants. |

Joux Witmer MartTIN, a witness called by complainants, being

duly sworn, says:

Examined by Mr. CLEEMANN :

| am twenty-eight years old; my name is John Wilmer Martin ;

[ am a salesman of carpeting ; I reside at No. 1609 Franklin street,

Philadelphia ; T have been in carpets exclusively for four years and

a half: I have sold them for nine years ;.I am familiar, very famil-

lar, with pattern on Exhibit No. 2; I have sold a great deal of it, as

12 _ JOHN DOBSON ET AL.

VS. JOHN DORNAN ET AL.

much so as any pattern we have got, I guess; it has been avery suc-

cessful pattern, indeed ;.1 am familiar with the pattern of Exhibit

No. 5. - |

Q. From your experience as a seller of carpets, do you think an

ordinary purchaser would be apt to mistake Exhibit No. 3 for Ex-

hibit No. 2? 2

A. I think it would be almost impossible for any one to tell them

7 apart that had not them together.

21. = Q. -~ Do you know of any instances where Exhibit No. 5 has

been purchased, instead of Exhibit No. 2, by mistake?

I know of quite a number, wlrere they bought No. 5 to

A. Yes;

take the place of No. 2.

Q. Can you state, from your experience im selling It xhibit No. ye

2 has been injured by the competi-

whether the sale of Exhibit No. 2

tion of Exhibit No. 3”

(Objected to by Mr. White.)

A. Yes; the sale has been injured in a number of instances

-Cross-examined by Mr. Wurtte:

a I sell goods for

Dornan, Maybin & Co. and other parties on commission; | have no

store or place of business; I do not sell _— erade of, goods for any

one except Dornan, Maybin & Co.

-*Q. Will you state vour means of knowle a that apy one bought

No. 5 in place of No. 2?

A. I can tell you of one instance; the party told me himself that

he bought it.

(). Did that a te H you he bought No. 3 to take the place of

No. 2?

A. Yes, sir. ,

Q. Was that the expression he used? If not, state what he said.

A. Just as near as [ can recollect it, he had bought No. 2 of Dor-

nan, Maybin & Co., but could not-get it as fast as he wanted it, and

ordered No. 3 to take its place.

Q. Then he was not deceived by the pattern, and did not mistake

Tam not engaged positively in any house now

the: one for the other

A. My recollection is he did not know the diffe ‘rence until he got

them together.

Q. Do you mean your recollection is he told vou that 4 7

A. Yes, sir.

(Objected to by Mr. White, to so much as is hearsay.)

Q. Be good enough to give me the name and address of that per-

son. :

22 A. J. HW. Wyman, Burlington, Iowa.

: Q. When did this take place, sir?

| couldn't sav positively ; that

A. I think it was in seventy-fonr ;

is as near as I ean fix the di ate, as I have been there frequently, and

couldn't say on which occasion it was.

JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL. 15

Q. Is it unusual in your business, when a man cannot get a par-

ticular pattern which he wishes, to order a different pattern as near

the same general stvle as he can get it ?

A. No, sir. | |

M. It is not unusual, is it, for merchants to send orders for car-

pets, giving a general description of the sort of patterns they would

like to have, such as with medallions of a certain size, and with

flowers wreathed, set, or running designs?

A. ‘It is the exeeption more than the rule.

(). The rule, | suppose, is, that a man comes and selects the pat-

tern himself, or orders from a sample; but where he cannot do this,

is the other course not frequently taken ?

A. Where parties have bought from seeing the sample, and want

more goods, they are apt to duplicate the patterns they have by

number. | :

Q. That is not the question which I asked you, and I now repeat

it. |

A. Yes. | |

Q. A large carpet house will generally have a large number of

patterns which will answer a general description, such as I have in-

dicated above, will they not ? ,

A. Some houses run all their patterns of the same general design ;

some have a greater variety, more or less.

(). Some make wreaths, some flowers, and so on: Is that what

you mean ? : ;

A. Some houses Mav have a trade for scroll patterns and small

figures, and some for other designs.

(. The most striking feature to an ordinary purchaser of those

cheap carpets as that part of them which is in the solid color, is it

not? I mean the centre pieces of the medallions.

A. I don’t understand your question.

23 (). What I mean to ask you is, whether an ordinary pur-

chaser, in looking at either of those carpets, would not observe

most prominently, at the first glance, the solid scarlet centre pieces

of the medallions?

A. The searlet, being bright, would naturally attract his eye first;

a man buving goods would naturally look at the whole figure; no

particular color would attract him. -

(Objection made to the latter part of the answer by Mr. White, as

not responsive.) | }

Q. The next thing that would be likely to strike an ordinary pur-

chaser would be the general coloring, would it not ?

A. That [and] the figure together.

Q. The design of the solid scarlet centres of these carpets is not

peculiar to this design, Is it?

A. No; the shape of No. 3 is like that of No. 2; the solid scarlet

centre is made in other figures.

(Q. That is common to a large class of designs, is it not?

A. Yes, sir. |

5 ee JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

The peculiarity of the design of No. 2 is in the flower, sprig,

Q.

and leaf part of the pattern, is it not?

A. I think the peculiarity of the pattern is the pattern itself—the

work of it.

Q. Leaving out the solid part of which you have spoken, what

else is there in the pattern, except the flower, sprig, and leaf, of which

I have spoken?

A. The cornucopia holding the flowers in the jewel part of the

Q. Any thing e ‘Ise, except the cornucopia and the flower, leaf, and

sprig part ° t

A. I don’t know as there ts.

Q. Now, is there any cornucopia, or anything resembling the

cormmucopia, in anything but color, in pattern No. 3?

A. | ~~ those roses are like the — part of the cornpenyes,

‘rather the cornucopia itself 1

'Q Do I understand you to say that the cornucopia in No.

¢) %)

: ? appears anywhere in the pattern No. 5 4

ns I think it does.

Where?

4 I think it is in the j jewel of No. 3.

Then vou consider those two figures the same, in seit or

4

ante so far as the cornucopia Is concerned ?

A. I do not say they are exactly the same, but the cornucopia in

No. 21s reproduced in No. 3.

°Q. Will vou look at the figure in No. 3, and say whether it is not

a seroll pattern known to the trade as the letter “S’ ’ pattern, and

used in many of Dobson’s best known i patterns ?

A. | never heard it spoken of as the “ S” pattern in my life before.

Q. Have vou seen it before in other patte rms?

A. I don’t think | recollect of ever seeing the

saw it in that.

(). Medallion patterns, with wreaths of flowers, leaves, and vines,

same thing, until I

are very common, are the y not?

A. They have got to be sinee this has come out.

QQ. Do vou mean to be understood, that such patterns were not in

use until No. 2 was put on the market ?

A. There had been medallion patterns made before that, with

leaves and flowers in them.

@. Such patterns were made, both running and in wreaths in

great variety, were they not, more especially in brussels carpets ?

A. I don’t think they were at the time this carpet was designed ;

since that they have been making more of that class of figures.

Q. Can you point out. any similarity between those two patterns,

independent of the coloring and the cornucopia, of which you have

spoken, other than the general feature, that both have solid medal-

lion centers, surrounded by flowers and leaves ?

A. I think that’ the wreath of No. 3 produces the same effect as

the wreath of No. 2.

Q. You are now speaking of the medallion with the sprig

and leaf pattern in the centre in No. 2, and the medallion

with the star or el ght- pointed figure in No. 3?

1 EE NUS Rien Spa eta

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 15

A. I refer to the wreaths surrounding the medallions.

(. Now, will you be kind enough to confine your attention to

those two patterns, and say whether. you mean to be understood that

the design surrounding the medallion of No. 0, above referred to,

resembles .the wreath you have indicated in No. 2 in any respect,

except in similarity of coloring?

A. I think the general effect produced 1 in that is the same as the

general effect produced i in this.

Q. Can you point out similarity in the two patterns in detail

which would produce the similarity of effect of which you have

spoken ?

A. I don’t understand the question altogether.

@. I wish to know wherein you can detect any similarity in those

two patterns; vour words “ general effect” are too indefinite to my

mind. ; :

A. Iwill show you. The sprigs around the outer edge of the

medallion are the same; there are sixteen of them.

(. Anything else?

(Objected to by Mr. Cleeman, as irrelevant.)

A. The inner wreath of leaves in No. 2 around the searlet is

brought out in effect in the same place in No.3. I can specify

nothing more than the general effect of the whole thing.

Redirect examination by Mr. CLEEMAN:

(). Is it not the almost universal custom for carpet dealers to pur-

chase by sample or inspection of the goods?

gouge to by Mr. White, as irrelevant and not re-examination.)

A. Yes, s]

7 | oe J. W. MARTIN.

Subscribed and sworn to before me, this’ 9th day of July, A. D.

1875.

26 GEORGE W. GoLDEN, being duly sworn, says:

Examined by Mr. CLEEMANN :

My name is George W. Golden; I am twenty-four years of age ;

I reside at No. 1020 Randolph street, Philadelphia; I am book-keeper

for the complainants.

Q. What is your duty in reference to ticketing the goods?

A. My duty is to see that every piece of goods i is ticketed properly,

and where a pattern is patented to place a ticket on bearing the date

and number of the patent, with the word “ patented. " The ticket

on No. 2 is such a ticket.

Q. Has every piece of goods bearing the pattern Exhibit No. 2

that has gone from the complainants’ mills since you, have been

with them passed your inspection ; have they all been ticketed with

a ticket similar to that on Exhibit 2?

1875.

16 JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

A. Yes, they have: it have been with complainants more than two

years and a half.

GEORGE W. GOLDEN.

Sworn and subseribed before me, this 9th day of July, A. D.

SUSSEX D. DAVIS, Examiner.

Juty 14raH, 1875.

Present: L. C. Cleemann, Esq., for complainants; R. P. White,

usq., for defendants. | |

THomas Drepvuy, being duly sworn, says:

My name is Thomas Depuy ; [am forty vears of age; I reside at

No. 1814 Park avenue; my store is No. 87 South Second street; I

am a Wholesale and retail carpet dealer, principally retail; I went

into that business in 1850, and was in it until 1857, and out of it

until 1870, and been in it from that time until the present.

ot Exhibit No. 2 shown witness.

(. Are you familiar with that pattern ?

A. I am. |

exhibit No. 3 shown witness.

Q. From your expericnee as a dealer in carpets, state whether or

not an ordinary purchaser In buying a carpet would be lkely to

mistake Ie xhibit No. 3-for E x hibit No. at

A. In my opinion it is sate to say that not one customer in twenty-

tive would know the difference.

(). Do you know of any instances in which the mistake has been

made ?

A. Mr. Golden, the book-keeper for the house of Dornan, Maybin

& Co.,stopped in at my store to get a carpet for his own use; wish-

ing one ot the pattern of Exhibit No. 2, he walked up to the imita-

tion or copy, and said he wanted one off of this.

(Objected to by Mr. White.)

Pointing to the one off of the copy, naming the 408, and I then

said: “ No, I guess that is not [what] you want; it (the copy) was

an extra superfine copy of the same pattern as near as I ean tell.

(Objected to by Mr. White, as conversation between third partics

and irrelevant.)

THOMAS DEPUY. :

Sworn and subscribed to before me, this llth day of July, A. D.

S75.

SUSSEX D. DAVIS, Rramine:,

ALEXANDER W. SkItton, being duly sworn, says:

[ reside at No. 604 North Thirtv-ninth street; I am. thirty-one

vears old; Tam in the carpet business; [am a retail carpet seller;

with a short interval, [ have been in it all my life.

a

JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL.

Exhibit No. 2 shown witness.

28 T am familiar with the pattern.

Exhibit No. 3 shown witness.

[ am familiar with that also.

(). From your experience as a seller of carpets, please state whether

or not an ordinary purchaser, i ‘selecting a carpet, would not be

likely to mistake Exhibit No. 3 for Exhibit No. 2.

A. Certainly he would; I think I have mistaken it myself.

(). State on what occasion ?

A. When I first saw Exhibit No. 3 I took it to be the same pat-

tern. | |

@. Where did on it?

A. At Jacob Riegel’s, on Market street; I enquired at that time if

it wasnot Dornan & Maybin’s s goods, and I was told it was Dobson’s.

>

Cross-examined by Mr. WHITE:

Q. Will you look at the two patterns now, and point out anything

in the design of one which you could mistake for the design of the

other?

A. The general design of both of them is very near alike to me;

the wreath. of ine flowers in the centre of No. 3,and the same

wreath in -No. 2, is so very near alike that 1t would deceive better

judges than I am; also, the wreath of heavier flowers in the centre

of both of them is the same, in my view; the only difference I can

see in them is the exchange of a leaf for a rose.

Q. Take the first two medallions that you have referred to; 1s not

the pattern of No. 2. a wreath composed exclusively of leaves of pe-

culiar shape, and is not the wreath you compare with it in No. 3 a

wreath of flowel rs with leaves of an entirely different shape and

pattern ?

A. In the first place, I] think that the wreath of No. 2 is not com-

posed of twigs alone; it has a leaf and running vines; and No. 3 is

composed of ‘the same thing, similar twigs, a running vine, and some

small flowers put in in place of twigs.

29 (). There are no flowers, are there, in the wreath of No. 2?

A. No, sir; I don’t think there are any distinctly formed

Howers ?

q. Are there any indistinctive forms of flowers ?

A. | call those twigs and leaves, formed as they are on the wreath

of No. 2, flowers.

. Then you consider a leaf anda flower so nearly alike that

vou would not only mistake one for the other, but knowingly call

them by the same name ?

A. I don’t consider anything of the kind, sir.

Q. Would vou call the wreath of No. 2a wreath of flowers ora

wreath of leaves ? ,

A. I told you before I called it a wreath of leaves, twigs, and

running vines.

(. Do you mean to say that that would be a correct discription

of the wreath of No. 3?

J—452

1s JOHN DOBSON ET ‘AL. VS. JOHN DORNAN ET AL.

A. Itis, with the exe eption. of a few flowers, a twig taken out, and

a flower put in.

Q. Then with the exception that you have spoken of the pat-

- are alike, are they, in those two figures

‘Tsay they are near enough alike to © mistaken by better

irate then I am in the business.

@. Will you be good chnongh to point out any object in the one

pattern, which rese mbles the other in any one thing but color ?

A. The size of the figure, formation of the medallion wreaths, same

number of figures to a breadth.

(Mr. White calls the witness’s attention to the fact that the ques-

tion is directed to the resemblance of the two medallions of which

we have been speaking.) :

A. The general resemblance is so near alike that almost any one

would mistake the one for the other.

Q. Then you cannot show any detail in which the -one corresponds

with the other?

A. The wreath and twig and running vine which runs around

the medallion of both medi ullions is so near alike that no one can

tell the difference.

Defendants Exhibit A shown witness.

sf ee (). Be good enough to compare the same wreath.in this Ex-

hibit A where the colors are different, and state whether you

think any person who knows one pattern from another when he

sees It, on being shown those two carpets, would be likely to suppose

that the pattern was the same in both.

A. Noone who is a judge of those. things would when they are

compared together as now.

Q. Look at the wreath in this pattern corresponding to the one in

No. 3, of which we have been speaking, and say whether any one

would be likely to mistake it for the same wreath in pattern No. 2,

of which you have spoken.

(Objected to by Mr. Cleemann.)

A, If it was in the same colors I think they would be very likely

to do so; most any one purchasing would do so.

(). Be good enough to answer my question, Whether any one look-

ing at the two wreaths in the two patterns now shown you, which

are in different colors, would be at -all likely to suppose the pattern

Was the same ?

A. Do you mean putting them side by side?

(Mr. White says you can answer the question in any way you

choose and fully as you choose.)

b)

A. If you put them together and compare them as closely as they

are there, I should say not; but separate them, and I know a great

many would buy one for the other, so far as the patterns are con-

cerned. |

Q. Then [ understand it to be your opinion that persons seeing a

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

earpet of No. 2 and a carpet such as Exhibit B would be likely to

suppose that the designs were the same and the difference was only

in the color? :

A. That is my opinion; the figures may be larger in Exhibit B

than in Exhibit No. 3.

Q. Where is your place of business ”

A. No. 1115 Market street.

(). In business by yourself there ° ?

A. Yes, sir.

Q W holesale or retail a

A. Retail.

A. W. SKILTON.

Sworn to and suheetibed before me, this 14th day of July, A. D.

1875.

SUSSEX D. DAVIS, Evaminer.

(FEORGE W. GOLDEN recalled:

In September, 1874, | went to Mr. Depuy’s to get a carpet with a

design like Exhibit No. 2,and walking back the store I laid my hand

on a piece of Exhibit No. 5, and said that was what I was looking

for; but was told it was not the exact thing I was looking for, but

no doubt could be given to me without my knowing any better.

(Conversation objected to by Mr. Waite.)

Cross-examined by Mr. White:

When I laid my hand on the piece, as I have described, it was on

the shelf with other carpets, rolled up in the usual way; the wrong

side was out. This was in Mr. Depuvy’s store. I knew I had sent to

him patterns of the carpet I wanted. I went to Mr. Depuy’s not for

the purpose of selecting patterns, but to get what I had decided upon

beforehand.

| GEORGE W. GOLDEN.

Subscribed and sworn to before me, this 14th day of July, A. D.

1875.

SUSSEX D. DAVIS, Examiner.

JoHN RoTHERA sworn:

My age is twenty-six years: | reside in Marlborough street, near

Belgrade street; [am a power-loom boss; I know the Messrs.

Dornan and the Messrs. Dobson; I worked for John and James

Dobson, | think, about fifteen months: I don’t know exactly ;

I left them last February or March. |

Exhibit No 5 shown witness.

[ saw that carpet worked at the Dobson’s last summer and last

winter; thev had a great many looms going at one time on it.

Cross-examined by Mr. Waite:

[ could not tell how many looms they had running on it; I never

20 = «JOHN DOBSON ET AL. VS. JOHN DORNAN ET AT.

counted them. I cannes say how long any one loom was at work

on it; they change the patterns about on the looms; I did not weave

it my “self, but I fixed No. 69 loom to weave It.

JOHN ROTHERA.

Sworn and subscribed before me, this 16th day of July, A. D.

1575.

T. E. MERCHANT,

Notary Public.

Exuibit No. 4.

Offered in evidence, marked by examiner July 16, 1875,“ Exhibit

No. 4, T. E. M., July 16, 1875.’

OFFICE OF THE FALLS OF ScHUYLKILL CARPET MILLIS,

Corner of Ninth & Chestnut Streets.

JOHN & JAMES Dopson, W. Orping NEwMAN.

Proprietors. Manager.

PHILADELPHIA, Jay 20, 1874.

Merssks. DoRNAN, MAYBIN & Co.

(GENTLEMEN: We have vour favor of this date, and note contents.

We are not aware of infringing on any of your patterns. We, upon

the previous notification, Investigated this case throughout, and

found that we were not interfering with vou or vour = pattern,

and can only reiterate upon what was stated to vou previously, that

we are not making any carpet for which vou hold letters patent,

notwithstanding the proof you say vou have at 615 Chestnut street.

Yours truly, JOHN & JAMES DOBSON.

d0 In the Circuit Court‘of the United States for the Eastern

District of Pennsvivania.

Between JoHN DorNAN and FRaNcis Maysin, Trading as

Complainants,

| } and

JoHN Dopson and James Dopson, Defendants.

Testimony taken at Philadelphia, before Sussex D. Davis, an ex-

aminer appointed by said court.

, FEBRUARY 2, 1876.

Present: - James Dobson, one of the defendants. Richa ra p a's hite,

Esq., counsel for defendants. John Dornan, L. C. Cleemann, counsel

for plaintiffs.

THomas FINLEY, a witness, called on the part of the defendants,

being duly affirmed.

Mr. White offers in evidence a drawing of his pattern, marked

now S.D. D., Exhibit A,a carpet pattern marked S. D. D., Exhibit B.

Witness savs:' lam in the manufacturing of jute rope and varns

at present; my place of business is at No. 28 North Front street.

w_ —_

YO a A SN NRE SA IRR I Co <

JOHN DOBSON ET AL. VS. JOHN -DORNAN ET AL. 21

was in the carpet business for about thirty-seven years, manufactur-

ing and weaving together, also buying and selling. I went out of it

a few weeks ago. 3

34 (). Please examine Exhibits Nos. 2 and 3, and state whether

vou find any, and, if so, what similarity of design between

them?

A. Well, there is something of a resemblance in the coloring, be-

cause the coloring is very much alike. There is a great deal of dif-

ference in the design.

Q. My question is, whether you find any similarity in the two de-

signs; and, if so, what?

A. The similarity of the designs, I see, is, they are pretty nearly

the same size of a design, but this figure on pattern No. 2, the drop

pattern, is different from figure No. 3; I preter No. 2. The pattern

on No. 21s more the shape of a vase and bouquet than anything I

ean compare it to. IT couldn’t compare this figure on No. 3 toa

bouquet. I take it to be an entirely different figure. ‘This centre

on No. 21s a sort of star pattern ina solid centre, with a wreath of

flowers around it. I don’t see that I could compare the figure in No.

2 to that in No. 3; No.2 is far superior. The design is different ;

the figure is entirely different: No. 5 is a mean kind of a seroll, and

No. 2 is a beautiful flower. The figure on No. 2 1s distinet, and

shows up bold as compared to No. 5; in No. 5 the flower is small

and appears like a scrawl.

Q). Independent of any effect as to distinctness or indistinctness,

will vou tell us whether the different parts of the design in the two

figures you are how comparing have any substantial similarity one

to the other.

A. They would not to me, I consider No. 2 far superior.

Q. Independent of the consideration of superiority, are the two

patterns alike, or in any respect similar as to the figures you are

—or :

There isa similarity in the size of the figures, and there

oy is a dane in the coloring, but the design of the whole of

No. 2 is far superior to No. 3. No. 2 is not lke No. 5 at all.

Q. Are there any of the figures in pattern No. 2 like those in

No. 3? |

A. I don’t see one exactly hke the other.

Q. Is the design of No. 2, or any portion of it, sufficiently like

No. 2, or any portion of that, to enable the one to pass for the other

on any ordinary purchaser ? |

A. It would not be for me. I shouldn’t think they would. I

don’t think there is such a similarity as to make an individual who

had chosen No. 2 first, turn around and take No. 5 by mistake. I

— + No. 2 so superior to No. 3.

The only similarity you have been able to point out is the

size a the figures and the colors ¢ mployed in them. Will you please

state whether the size of the figures in these patterns, or the colors

employed in them, are peculiar or uncommon Im any respect?

A. No: I don’t see anything uncommon about them. I have

wrought and manufactured hundreds of patterns, that I can see there

S aap a JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL,

was a similarity in these figures before me. I am speaking now of

the pattern, not of the color. IT mean as to formation, and some-

thing as to similarity of size, too. 7

Q. Is the size of the figures used on either of those patterns un-

common or unusual ?

A. No, sir. ,

Q. Are the colors used in those patterns unusual ?

A. Not at this present time; they are colors lately introduced, but

are now common. The coloring is two or three vears old.

Q). Is there anything in the arrangement of the different figures,

| mean as to the placing of them in the design, which 1s unusual?

A. No, sir: not at all.

ae (). Are patterns, with solid centres, surrounded by wreaths

and spr ty an unusual design ?-

A. ‘O)in ho, quite COMMON : the Centres in No, > are larger than in

No. 2, but not near so fine to mV taste.

Q. Apart from the fact that these designs are both wreath pat-

terns, with solid centres, the coloring alike, do you find any resem-

blance or similarity between the two?

A. — you reference to the designs, or to the flowers ?

(). I refer to the whole design,

A. Ido not see anything just alike in the whole patte rn.

(Q). Do vou find any thine suflic jently alike, to be calculated to

deceive or miustead ? : |

A. It would not me; [ don’t see anvthing which could deceive or

mislead me; it would be very hard for me to say whether 1t would

deceive or mislead an ordinary purchaser; there are some parties

who would not. be able to carry the figure in their eve or mind at

all, from the one store to the other; they would not be able to Carry

the design of either figure, for the reason that | have had them come

from other stores to mine, and to tell that they had seen the very same

figure in the store they had previously left. when I have known the

design and figure, which | showed them, was the only one of the

kind in Philadelphia.

(). My question was as to un ordinary purchaser.

A. I don’t think there is such a similarity as would deceive an

ordinary purchaser. | |

- Cross-examined by Mr. CLEEMANN :

).

in both patte rns? : :

A. The re is a great deal of similarity in the color and shading.

(). Is hot the relative position ot f the drops, and the larger ugures

the same 1m both Carpe ts 7

A. No. sir, 1 don’t consider the Vv are.

Show me where they are different.

A. The drop in No. 3 ts not Ike the drop in No. 2 at all.

Q. But is not the position of the drop in No. 5 in relatien to the

Ke

larger figures the same as the position of the drop in No. 2 in rela-

Q. Is not the arrangement of the dark and lght colors the same

*)

tion to the larger figures in No. 5°

af ? eo Wee £2 > aT — - 2 wa? _— oo wae 6 * > a se

ee > Sima. ollie Inne ee ie

me“ ak ~ he x" ~ - ° a) . x A st ¥ ~~ yiqegieen

- ad — 6 ‘ Samim... a e 7 eg ae ™) 4 ed . <. <a) ite Ye | Pe Dee “A .

= = to Say Be ye ’ ~~ ’ + . pi 4 : , ia ‘

ag ay. ee pitas? ih s <e wer . gare Pi! * a ioe ee 7 $n ap bites ‘ . me * me iw

a f een ioe See BO *. a 3 awe eS gehs” 4 : we et ga ” ie } ee, ca

: = La be pn > Bais! an fs 4 ate ; 3 Ao tis ay s egy et Maas a Bee . vy re ‘a

: : ~ «tig Ne . t g hak 8 Fis a Ee, Bak).

¢

- A Sh P q

op

ae

ten het

be he EE:

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 23

A. Certainly. The position of the figures is the same, but the

figures themselves are entirely separate and distinct.

Q. Do you not think it like ly that the design on No. 31s an imi-

tation of the design on No. 2?

A. I would not call it such. You will see that these figures on

No. 3 are entirely different from those on No. 2, and the flowers are

entirely different. The design of No. 2 is far superior.

THOMAS FINLEY.

Sworn and subseribed before me.

SUSSEX D. DAVIS. Kraminer.

WittiamM T. Cernero, being duly affirmed, and examined by Mr.

Wuirk, on the part of the defendants, says:

I have charge of the retail carpet department of Gould & Co., at

9th and Market streets. [ have been familiar with the carpet busi-

ness ten years this spri ing. I have examined the designs of Exhibits

Nos. 2 and : o.

(). Do you find any substantial sinnlarity between them?

A. Nothing more than in the coloring.

Q. Is there any such similarity between the two as would mislead

an ordinary purchaser?

A. There is not in my judgment.

(J. Is the general arrangement of the figures or the general

character of the design an unusual one, the arrangement of

the medallion figures with the wreath around them ?

A. It is not at the present time.

Q. That is a class of patterns now in fashion ?

A. There are quite a number of them.

Q. Are the colors in these exhibits unusual, or are they used in

all kinds of carpets ?

A. They are at this time; they are used in all grades of ingrain

‘arpet at this time, and in all the different designs.

(. Do you find any one in figure in No. 2 subst tantially like any

one figure in No. 5?

A. I do not; nothing more than in general design.

Q. By general design vou mean that whole class of set figures with

wreaths, am I right in that? —

(Objected to by Mr. Cleemann. Question withdrawn.)

Q. What do vou mean by general design ?

A. The class of patterns that I would call wreath designs.

Q. Is that class of designs extensively in use ?

A. They are; there ; are large numbers of the patterns.

WM. T. CERNEO.

Sworn and subscribed before me.

SUSSEX D. DAVIS, Examiner.

Adjourned to March 25, 1876, at 53 o'clock, p.m

24 JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

Marcu 23, 1876, at 3} o'clock p. m.

Present: L.C. Cleemann, Esq., for complainants; Robert Dornan,

one of the complainants; and R. P. White, Esq., for defendants.

Jounx T. Wepstrer, being duly aflirmed and examined by Mr.

WHITE, says :

ov [am a designer; I have followed that business over thirty

years; Lam now in the employment of John and James

Dobson. : ae

Exhibits A and No. 1 shown witness.

Iam familiar with these designs. One is Dornan’s patent and the

other Dobson’s pattern, while ‘i is complained of as an infringement

In this case.

Q. Please state if you find any, and, if so, what, points of simi-

larity between those two patterns.

A. ‘The plan is the same. —

Q. What do you call the plan?

A. ‘The plan consists of four centres or wreaths and a drop figure;

that: plan is common to both patterns.

(). Is it peculiar to those patterns, or is ita plan which was in use

prior to either of them; and, if so, to what extent, and how long?

“A. It is hot: peculiar to those patterns. The extent of its use I

could not say, but it has been in use at least ten years, to my knowl- r

edge, and it may be much more. |

(Q). Tlow and in what way has that been in use? iy

A. It has been used by carpet manufacturers, and, also, I believe,

by drugget manufacturers and ingrain car pet manufacturers; it has

also been used by several minutacturers in various patterns. That

applies for the time I have specified, to my knowledge.

— Q. Phen, if TP understand vou, wreath patterns and drop centres

have been used by the trade over ten years, to your knowledge?

A. Yes, si

(). Have ; ou ever prepared any design vourself of this character;

and, if so, when and for whom ?

A. LT have; prepared. one in S71, for Alexander Smith & Sons.

Here it is, (Ma. ( ‘eemann objects to this pattern bemg offered

40 © in evidence. Pattern marked S. D. D., Exhibit D), and I

| would call this the same plan as the other two.

Q. Irrespective of the plan as vou define it, do you find any

substantial similarity between the Dobson pattern and the one in

the letters patent ? ~

A. Trrespeetive of the plan T see no substantial similarity.

Q. Point out, if you please, the points of difference between them.

A. In the patented design there are four centres or wreaths, each

ditferent from the other; 1 the Dobson patent there are four cen-

tres also, those marked as Nos. 2 and 4 being alike, and Nos. 1 and

3 also being like each other, but neither of them like any of the

plaintiffs’ centres or wreaths: the drop figures are far from resem-

bling each other in the two patterns. | should say in the plaintiffs’

JOHN DOBSON ET AL. VS, JOHN DORNAN ET AL. 25

pattern there is evidently a ‘representation of a group of roses, with

accompanying leaves, and in defendants’ the floral part is more of

the form of a wreath or spray. The other features of the drop on

the defendants’ I would describe as the letter “S;” the other fea-

tures of tlre plaintiffs’ I am at a loss to describe; 1t does not resemble

the letter “3S.”

@. It has been alle ped. in the course of this ex xamination, that the

designer of the defe ndants’ pattern seems to have reversed the pat-

ented design, and reproduced the substantial parts of it in different

™ positions from what they occupy in the original. Do you see any-

thing of that kind in the patterns ” |

A. I do not.

Q. After a careful examination, can you state whether any one

part of the patented design, excepting the plan as you have de-

scribed, is to be found re produced in the Dobson pattern ?

A. I do not find anything in the defendants’ pattern reproduced,

with the exception of the plan.

4] Q. Do you find the same flower in either pattern ; if so, in

what instance?

A. I tind roses in both; two roses are in the defendants’ pattern,

excluding the drop patterns, and in the patent I see only one, which

is to be found in the lower right corner; the roses in the defendants’

pattern do not resemble at all close ly the one which appears on the

. patented design. :

: Q. E xcluding the roses, do you find anv leaf, spray, or flower in

the defendants’ design which is a reproduction of anything 1n the

complainants’ pattern?” |

A. I find no re boca of any of these features in the defend-

ants’ design.

-Q. Are patterns, made up of wreaths and groups of flowers, com-

mon or uncommon among peapel and wall paper and other similar

designs.

A. They are quite common,

Q. Have vou ever seen carpet or wall paper designs, anything

resembling the drop pattern in the plaintiffs’ design ?

A. I have one here which is of similar character, it is on a wall

paper; | have been familiar with that for four vears. I have had

this particular piece for four years. T have also duplicates of it.

Carpets were manufactured and put on the market by Alexander

Smith & Sons from Exhibit D.S. D. D.., the same years that I de-

signed it. “This is cut from a wall paper which 1s in use,

Q. Looking at the two designs in controversy, will vou state

whether in your judgment there is any such similarity between

them as would deceive ordinary purchasers?

A. | should think not.

Cross-examined by Mr. CLEEMANN.

Q. Is the drop figure an important feature in the plaintiffs’ des

sign ?

42 A. Not so important as the wreaths.

Q. What is its importance ?

4—482 |

26. JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

A. Its importance in 1 both pos at is an intermediate figure placed

at an equal distance from the centres to break the line of plain sur-

face that would otherwise appear without the intervention of a drop

figure.

Q@. If the drop figure were omitted it would cause such a change

in the figure as to make the design a different one, would it not?

A. Lean hardly sup pose that a designer for carpets would leave

the design in the unfinished condition in which it certainly would

be without a drop figure.

Q. You have seen, however, designs hav ing the same gene ral plan

of wreaths that you speak of, in which the drop figure is left out,

have you not?

“A. Ido not recollect having seen a design in which the drop fig-

ure or its equivalent was left out.

(Q.] What would you call its equivalent?

A. T would eall itsequivalent where a frame-work was introduced

in the plan of the earpet that might: only enclose a portion of the

carpet where the drop figure is presumed to be of advantage, or it

might also be planned to enclose the wreaths and form connections

_ of frame-work or strap-work.

Q. Taking this view of the subject, is the drop figure an import-

ant feature in the two designs ?

A. IT have already answered that question by impliation..

Q. Please answer it now directiy.

A. Yes; it is an important feature.

Q. Is it of anv importance as to the coloring in preparing to

weave the carpet from the design ?

‘A. The coloring of a carpet is of very great Import after it 1s de-

signed.

a Q. That is, is the drop figure of any importance as to the

45 ~~ coloring in pre paring to weave the carpet from the design?

A. [t is.

QM. What t import ince ?

A. It is of importance that the coloring of the drop figure should

harmonize with the coloring of the other figures and centres and the

ground.

QM. Does not the iradadtion of a drop figure assist the produc-

tion of a more varicd effect on the coloring of a design ?

A. Phat is the elfeet. intended to be produced by the introduction

of drop figures.

Q. Would you not then consider that there was a radical differ-

ence between a design containing a drop figure and one in which it

was omitted ?

A. I would. se

Q. There is no drop figure on Exhibit D, is there ?

A. There ts, or its equivalent.

Q. Would the figure which you say is equivalent toa drop figure

in Exhibit D have the same effect as to allowing a greater variety of

coloring as a drop figure; such as that in the design of the letters

~ patent would ? :

Ss iia ered...

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. . ie

A. It would have the effect of allowing as great a variety of

color.

Q. Is that all?

That is all [ have to say |

Q. I mean as to-the space between the centres ?

A. It would allow such a variety, but not as great a quantity; I

mean that the space occupied by the drop figure in the patent is

larger than the space occupied by the drop or the equivalent-on Ex-

hibit D; [would quality what I have said above that it would allow

as great a varie ty of color as has been introduced into the jewel or

drop figure of the letters patent.

44 Q. Have you seen the design, Exhibit D, in carpet?

A. I have. |

Q. In that carpet, was there as great a variety in color between

the large figures as there is.in Exhibit No. 2?

A. Distinguishing vellow from orange, | should say no.

Q. Was there as great a contrast ?

A. I don’t thoroughly understand that question.

Q. In the carpet, which you saw made after Exhibit D, was there

as great a contrast of color on the space between the corner figures

as there is in Exhibit No. 2, in that space?

A. There was. .

@. You have said that the use of the drop in Exhibit No. 2 is to

break the line of plain surface between the corner figures; does the

figure, which you say 1s equivalent toa drop in Exhibit D, does it

do the same as effec tually ?

A. It does.

Q. You then see no difference between the drop in No. 2 and the

equivalent in Exhibit. D; 1s this so?

A. I see no difference, so far as the intention to break the line is

concerned.

Q. Do vou see any difference, as far the intention of making a

greater variety of color is concerned ?

A. I do not.

(. Would you be — to mistake a carpet bearing a design with

a drop in it, such as that in Exhibit No. 2, with a carpet bearing the

design of Exhibit 1)”

A. I would not.

Q. You have said that vou were familiar with the design shown

on the letters patent; when did you first see that design ?

A. Strictly speaking, I have not seen the design until I saw the

letters pate ant.

(). Well, not speaking so strictly, when did you see it?

45 A. I-saw—I couldn’t state the time, say two vears ago—

a part of the patent design.

= Where?

. At the Falls of Schuylkill, on the premises of defendants.

“ What part did you see ? :

A. That is almost.more than I could particularize, but I know

that we did not have the complete figure.

Q. How do you know that?

|

28 JOHN DOBSON ET AL. VS. JOHN DORNAN ET ATI.

A. Ww ell, I know that one-half of the dons was not in our posses-

s1on. :

Q Did you then

ure?

A. We did not.

Q. Did you get a piece siowiag what that lacks?

A. I did not.

-Q. Did the defendants get such a piece?

A. Ido not know. |

Q. Didn't you see such a piece ?

A. I am not aware of ever having seen any other piece of plaintiffs’

‘arpet than the piece referred and Iexhibit No. 2.

(). How did ai come to see the first piece ?

A. It came to my knowledge through having been left as a sam-

ple. of sh: ding.

Q. Who by t

A. By Mr. Dean—Dickson | Dean.

Q. What did he leave it for”

A. For a sample of shading solely.

Q. Did you use it for that purpose 1

A. I did not.

Q. Who did? : 3

A. I believe Mr. Kerr—David B. Kerr-—has used it for that pur-

pose.

46.8 Q. Has any person in de fendants’ employ used it for that

- purpose ?

A. None that Iam aware of, other than he.

(J. ‘Is he in their employ as at designer t

eet noe piece which showed the whole fig-

A. No.

re Has he been ”

No.

Q Has he ever been in their employ ?

A. I have said above he was, but not as a designer.

Q. How was he emploved by them ?

A. You ask me more than I can tell.

Q. Why then have you said that he was in their employ ?

A. LT conelude that being on the premises myself during what are

regarded as working hours, and see ing Mr. Kerr there also on the

premises, that he was in their employ.

Q. Did you ever see him do any work there?

A. Yes.

(). What have vou seen him do?

A. Lhave seen him do various work; writing in books, and [

presume he has many things to attend to besid s, and I believe at-

tending to the shading of the carpets; | have seen him do many

things required of a weaver, or a superintendent of weavers.

Q. You have said that vou saw Kerr use plaintiffs’ design for

shading colors, have vou not ? | :

-£ ie ave not said so.

Q. What did vou say in reference.to Kerr and this design ?

A. Your question indicated I had seen him use it.

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 29

A. Ido not recollect exactly; I do not think I said anything

ubout his using the design for shading carpets.

Q. Repeated.

A. I ‘3 ave no re collection of having said anvthing about Kerr

and this design; my recollection is that I said it had

47 been left for shading purposes by Mr. Dean, I mean the piece

of carpet was left?

(. Is this the piece you saw?

A. Lam sure I can’t tell.

(Piece marked §. D. D., Exhibit FE...)

Q. Was it like that?

A. So much as I had was hike it.

q. Didn’t you have as much as that?

A. | did not. |

Q. Can vou indicate how much vou did have?

A. As near‘as I can indicate I did not have a piece larger than

sixteen or eighteen inches.

Q. Can you show what portion of this vou had by marking a line

on it.

(Mr. Cleemann requests the witness to mark out on Exhibit E a

line, showing how much he had on the oceasion when Mr. Dean

left it.) |

(Mr. White objects; that there is no such exhibit in the case; that

this is not cross-examination.)

Mr. Cleemann requests the witness to mark out on Exhibit No. 2,

so much of the cloth as Mr. Dean left, and he saw.

A. I cannot be definite enough to make a mark stating the limits

of the part of the pattern Mr. Dean left.

(). Was any portion of the drop in it?

A. There was.

Q. Which portion ?

A. I don’t know which it is; it is the upper portion as it appears

on the letters patent. | ;

Q. As much as‘half of it?

A. About a half, or near half; rather under than over a half.

(). Ilow much of the centre figure was there?

48 A. There were only parts of two centres; rather more than

one-half of the two upper centres, that is my Impression.

Q. Why do vou think Mr. Kerr used the piece you have de-

scribed for shading ¢ arpets ¢

A. Because I have seen carpets shad ‘din that way in the defend-

ants’ place.

Q. Have vou seen the defendants’ carpets shaded that way ?

A. I be lie ‘ve T have.

(). Do vou make the design for defendants’ carpet ?

A. I controlled the making of it.

Q. What part did you do?

A. I made the drop.

3) = «JOHN DOBSON ET. AL. VS. JOHN DORNAN ET AL.

Q. Had you seen the piec e of defendants’ carpet you spoke of, be

fore you made the drop ?

A. I did.

Q. Did you have it o fore vou when you made the drop ”

A. I did not.

Q. Who made the center pieces ?

A. They were made under my -direction by one of my assistants,

John A. Gray.

Q. Is he in the city now”

A. He is not. :

(). You had seen this piece of the plaintiffs’ carpet you speak of

before the centres were taade, Is it not so?

A. Yes.

Q. Was this piece that Mr. Dean brought in the same colors as

No. § 2

A. y es, the samne volor, | believe.

QQ. Had vou any other person who assisted you in ge tting this de-

sign up?

A. Nobody.

@. Do vou know where that piece is ?

| - [ do not.

49 Where was it the last time you saw it?

Xx [ think it was in the weaving-room.

(). Was it ever in the designing-room * ?

A. it was. .

Q. The designing-room is your room ?

A. It is the one I take charge of. .

Q. Was it in there when you designed the defendants’ patterns ?

A. I wish to correct the word “ room”: T had a number of rooms;

it Was in there.

Q. Where were these designing-rooms you speak of ?

A. At that time they were in the fourth stor y of defendants’ car-

pet mill. :

Q. Do vou think vou could find that piece of carpet ?

A. Ido not think I could; T have inquired for it frequently. I

have not seen it for two vears.

Q. Do you know whether or not it has been destroyed?

“A. IT do not.

-Q. In whose possession was 1t when vou last saw it?

A. I think, but am not positive, it was in the weaving room of

defendants, and under the control of Mr. Kerr.

Q. Do vou know what it was used for then ”

A. T know of no further use than for shading purposes.

(Mr. Cleemann calls upon the defendants to produce the piece of

carpet: alluded to by this Witness as having been left by Mr. Dean.)

?

~ Re-examined by Mr. Wirtrre:

Q. Is it not the custom amongst manufacturers to Keep a large eol-

leetion of ok ls and ends ot Carpe ts to show coloring T

(Objected to by Mr. Cleemann.)

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 3]

A. It is; that is the case

| 50 Q. W hen customers order quantities of particular patterns

! is it usual to let them indicate from these odds and ends

what colors they desire to have them in?

(Objected to by Mr. Cleemann.)

A. It is.

Q. Is it uncommon for customers, when ordering carpet of a par-

ticular pattern, to send a scrap of other goods to show the colors they

would prefer to have what they order woven in”

: A. It is a common proceeding.

Q. Was that what you meant by shading ?

(Objected to by Mr. Cleemann. Question withdrawn.)

Cross-examined by Mr. CLEEMANN:

Q. Is it usual to keep these pieces in the designing-room ?

A. It is in some factories.

(. How is it with the defendants ?

A. It is not now the custom with the defendants*to keep those in-

grain samples in the designing-room.

Q. When was it their custom ?

A. I don’t think that these pieces of carpets have been any of them

stored or kept 1 in the designing-room for nearly three years.

j Q. Why was the custom changed ‘ ?

\ A. The distance between the ‘designing- -room and the shading-

room, to whom they are more useful, makes it inconvenient to the

shader.

(). Previous to then years ago it was the custom of the defendants

to keep these pieces in the designing-room, is that so?

A. It was. |

Q. What change has been made in the situation of the designing-

room in the last three years?

A. It is in a building independent of the main building.

o1 QQ. Before the change of the designing-room, was it the

custom .of the de fendants to let their customers come in the

designing-room to order carpets ?

A. It was not the custom.

Q. Why, then, were these pieces kept in the designing-room ?

A. Because the shader and the designer are so intimate ‘ly related

in their business that they are generally placed near each other.

Q. Were the shading-room and designing-room near each other

* when you got up the de fendants’ design ?

A. They were in the same building, two floors apart.

Q. Which was up stairs.

A. The designing-room.

JOHN T. WEBSTER.

Sworn and subscribed before me.

SUSSEX T. DAVIS, Examiner.

Adjourned to March 27th, 1876, at 33 o’clock p. m.

eid

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

| Marcu 271TH, 1876, at 33 o'clock p.m.

Present.: L. C. Cleemann, Esq., for complainants ; Robert Dornan,

one of the complainants. Mr. White, of counsel for defendants, not

being present, adjourned.

SUSSEX D. DAVIS. Hraminer.

a2 And afterwards, to wit, on the 25th day of April, A. D. 1876,

this cause came on for argument on pleadings and proofs, and

having been argued by counsel for the respective parties, the court

entered the following decree to wit:

PF AS ROR OTRO eee ar

April 25th, 1876. This case came on to be heard on the p slead- :

Ings and proots, and was aggre ed b ¥ COUNSE ‘lforthe 1 respec tive partie S, :

and thereupon, upon consideration thereof, itis ordered, adjudged,and — ;

decreed that letters patent for a design for a carpet pattern, No. 6822, :

dated August loth 1S75, b pak to Messrs. Dornan, Maybin NX Co., :

assignees of Charles A. Righter,is a good and valid patent, being the

pattern referred to in aC A bill, and that the said Charles A.

Righter was the first and original inventor of the design. described

and claimed in the letters patent, and also that the said defendants,

John Dobson and James Dobson, have infringed upon the said pat-

ent, and theexclusive rights of the complainants unde rthesame; and

it is further ordered, adjudge <1, and decreed that the complainants do 7

recover of the defendants, Jolin and James Dobson, the profits, gains, 1s

savings and advantages which the said defendants have received or

: made, or Which have arisen or accrued to ‘them, from the said in-

fringement of the said patented design, and also such damages in ad

dition to said profits as the complainants miay have sustained by rCa-

son of the said infringement; and it is further ordered, adjudged,

-and decreed that the complainants do recover of the defendants their

costs and charges and disbursements in this suit, to be taxed; and

it isfurther ordered, adjudged, and decreed that it be referred to John

Cadwallader, Jr., Esq., as master, to ascertain and take and state and

report to the court an account of the gains, profits. and advantages

which the said defendants have received, or which have arisen or

accrued to them, from infringing upon theexclusive rights of the said

complainants, by the manufacture, use, and sale of carpeting bear-

ing said patented design, and also what damages in addition

thereto have been salfered by the complaimants, by reason. of

sald infringements; and it is further ordered, adjudged, and

decreed that the complainants, on such accounting, have the right

to cause an examination of the said defendants, ore tenus or

otherwise. and also the production ot the books. vouchers, and docu-

ments of the defendants, and that the said defendants attend for such

purposes before said master, from-time to time, as said master shall

direet:; and it is ordered, adjudged, and deereed that a pe rpetuy al in-

junction be issued in this suitagainst the said defendants, John Dob-

son and James Dobson, : according to the praver ofthe bill.

By the court.

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 33

ays) And afterw ards, to wit, on the 31st day of May, A. D. 1882,

the master’ in the case files his report and the testimony

accompanying the same, which, being read, is as follows, to wit:

in the Cireuit Court of the United States for the Eastern District of

Pennsylvania. Of April Sessions, 1574, No. 2. In Equity.

DorNAN et al. vs. Dopson et al.

To the honorable the judges of the said court:

The master duly ap pointed under the following decree respect-

fully reports :

Decree.

April 25th, 1876. This case came on to be heard on the plead-

igs and proofs, and Was argued by counsel for the respective parties,

and thereupon, upon consideration thereof, 1t Is ordered, adjudged,

and decreed that letters patent for a design for a carpet pattern, No.

6822, dated August 19th, 1873, er ose to Messrs. Dornan, Maybin &

Co., assignees of Charles A. Righter, is a good and valid patent, be-

ing the patent referred to in comple tinants’ bill, and that the said

C ‘hy irles A. Righter was the first ak original inventor of the

D4 design deseribed and claimed in the letters patent, and also

that the said defendants, John Dobson and James Dobson

have infringed upon the said patent and the exclusive rights of the

complainants under the same; and it is further ordered, adjudged,

and decreed that the complainants do recover of the defendants,

John and James Dobson, the profits, gains, savings, and advantages

which the said defendants have received or made, or which have

arisen or accrued to them: from the said infringements of the said

patented design, and also such damages in addition to said profits as

the complainants may have sustaine id by reason of the said infringe-

ment; and ii is further ordered, adjudged, and decreed that the com-

plainants do recover of the defendants their costs and charges and

_disbursements in this suit, to be taxed; and it is further ordered,

adjudged, and decreed that it be reterred to John Cadwalader, Jr.,

Esquire, as.master, to ascertain and take and state and report to the

court an account of the’ gains, profits, and advantages which the

said defendants have received, or which have arisen or accrued to

them from infringing upon the exclusive rights of the said com-

plainants by the manufacture, use, and | sale of carpeting bearing

said patented design, and also what damages in addition thereto

have been suffered by the complainants by reason of said infringe-

ments: and it is further ordered, adjudged, and decreed that the

complainants on such accounting have the right to cause an exam-

ination of the said defendants, oretenus or otherwise, and also the

production of t the books, vouchers, and documents of the defendants,

and that said defendants attend fer such purposes before said master

from time to time as said master shall direct; and it is ordered,

adjudged, and decreed that a perpetual injunction be issued in this

Suit against the said defendants, John Dobson and James Dobson,

according to the prayer of the bill.

o—452 |

¢

| B4 “JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

DO. ~The a r sory attended at his office, in the city of Phila-

~delphia, by L. Cleeman, IE Sure, for complainants, and

Richard P. White. E cae for the defendants

Testimony was taken both on behalf of the scan tinants and de-

fendants, all of Which las been printed, and will be returned to the

court if it be so ordered.

The master finds that the complainants early in the vear IS74

notified the defendants of their infringing their designs, and after a

second notification the defendants wrote the following letter:

: Pit AbDeELPHIA, May 25th, 174.

Messrs. DoRNAN, Maypin & Co

GENTLEMEN: We have your favor of this date, and note contents.

We are not aware of infringing on any of your patterns. We, upon

the pre Vious notification, divestigated this case throughout and found

this at we Ww re not Hite rlering \\ ith VOU Of YOur pate ri, anal Cali only

reiterate upon What was stated to vou previously, that we are not

making any carpel for which vou h old letters patent, notwithstand-

Ine the proot Vou sav vou have, at 615 Chestnut street.

Truly yours, : JOHN & JAMES DOBSON.

The defendants made and sold) between llth of February, 1874,

and April loth, IS76, together with one sale made after issuing the

Injunction in September, S76, fifty-two thousand and forty-three

amdone-half yards (52,0433 yards). Of this total amount a very large

proportion was sold) to customers who chad previously bought the

genuine carpet of the complainants. Of these customers the princi-

pal ones were Irield, Leiter & Co. of ¢ ‘hicago, Who purchased of the de-

fendaats within the dates mentioned 15,6523 vards of the imiuta-

(66 tion pattern. ‘This Chicago firm had, within a few months

| preceding the manufacture by the Dobsons, purchased over

2,000 yards of the genuine carpet trom. the complamants. It was

shown by the evidence taken by the examiner that the purchasing

agent of the Chicago house, Dixon Bean, had taken a piece of the

genuine carpel lo the Dobsons and asked them to make something

like it, and soon afterwards they issued the carpet decided to be an

—ntringement.

Mr. James Dobson testified at considerable length to the fact that

his firm had sold all of thei, in: grain carp vets af prices which AY iclded

then. no protit Whatever.

Lle analyzed the cost ol manulacture. and, according to the figures

given by him, his or neral statement that no profit accrued Was satis-

factorily vertfied hy the details. Indeed, so far trom any profit, it cl}

peared from Mr. Dobsou’s t “timony that they conducted their busi-

hess ata heavy loss, i

Ile states: “ The bulk of these goods was made in 1874. and we

sunk in that vear, in manutacturing these goods (ingrain carpets),

which we madealmost exclusive ‘ly,seventy thousand dollars in addi-

tion to the interest on our cap ital invested.”

In the years 1574 and 1870 the Dobsons manutactured altogether

a

or

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 35

1,119,752 vards of ingrain carpets, so that about jj; of the whole of

their manufacture was of the infringing design. The remarkable

popularity of this design is thus shown, as Mr. Dobson testified that

they had made over 120 different designs in these years. ”

lt was testified that designs for carpets were not of themselves of

much value, rarely bringing in the designer’s handsover $10. There

Was ho testimony offered to show what the value Was of a design that

had been put in use and proved popular in the manufacture. From

the figures already given, however, the extraordinary differ-

ay) ence in their salability is apparent. It was conceded that

usually difference of design did not vary the price; that is,

carpets made of similar quality, and alike in materials and colors,

brought the same prices, irrespective of design. The complainants

had been for many vears in the business, but the Dobsons had only

begun to manufacture carpets in 1872.

The complainants asked to have awarded to them as damages

and compensation for the injury inflicted upon them whatever

profit the defendants mav have made, and also whatever loss they,

the complainants, had incurred, which could be measured by the

profits that would have accrued to them if they had made the ex-

clusive sales of the carpet, deducting in such case the amount of

profits, 1f anv, made by the defendants.

The defendants, however, contended that all that the, complain-

ants were entitled to was not what they, the defendants, had made

or saved on the carpets, but only what they made or saved, by rea-

son of the use of the pattern, as compared with what they could

have made without it, and therefore, unless they could sell the carpet

bearing the design, ata higher price than other carpets, whereby

they made more or lost less, no profit resulted to them.

They further contended that unless it was shown by direct evi-

dence that the complainants would have made the sales which the

defendants did, had they hot infringed, the fact coule 1! not be inferred.

In support of these views the ease of Seymour vs. MeCormick, 16

Howard, 488, was cited. In that case the Supre me Court held, that

in a suit fora violation of a patent for an Improvement in a reaping

machine, the improvement consisting principally in giving a con-

venient seat for the raker, that it was error to hold the defendant

responsible in damages to the same extent, as if he had pirated the

Whole machine; and further, that it was error to lay down as

oS a rule for the méasure of damages the amount of profits

which the patentee would have made, if he had constructed

and sold each one of the machines which the defendants constructed

and sold.

The master does not think this case in point, when, as here, the

Inventor's profit consists in the exclusive use of the invention ‘and

in the monopoly of manufacturing for others to use. Judge Grier,

who delivered the opinion of the court in Seymour vs. MeCor mick,

explains this distinction in Livingston rs. Jones, 2 Fisher, page 209.

Hesaysin this this latter case: “The only cases in which the measure

of the patentee’s damages is the amount of the infringer’s profit are,

when the invention is of some new machine, or a new form of any

36. JOHN DOBSON ET AL. VS. JOHN DORNAN ‘ET AL.

kind of known machine, which, as a distinct species of machine or

manufacture, is more valuable or can be put into the market cheaper,

so as to supersede or exclude other machines or manufactures of the

same genus; and where the profit of the patentee consists In a com-

plete monopoly of the right to make and vend the new machine or

manufacture as a unit and in the exclusion of ail other compe-

tition.”

In-the case of the Gorham Company vs. White, 14 Wallace, 511,

it is held that a patent for a design is for the product, and not

merely for the means of producing the result.

In that case, which was a design for silver table-ware, the great

ralue of a successful design is shown. It was there testified, al-

though the design was of the simplest character, that it was worth

$50,000. This value was entirely the result of its additional salabil-

itv, and had nothing to do with the intrinsic value of the article

produced. The fact appeared in that case also that a very few de-

: signs, out of many issued, proved successful. From the tes-

59 timony of Mr. Dobson it appeared that more than one-half

of all the ingrain carpets made by this firm, out of over 120

designs, was made upon 12 or 15 designs. It was, therefore, of the

greatest importance to the defendants, 1f they hoped to contend. suc-

cessfully with the old established carpet manufacturers at the outset of

their enterprise, to secure popular designs. rom the published reports

of other suits instituted and recoveries against them for similar in-

fringements of patented designs, the defendants appear to have been

very negligent, and to have disregarded the rights of patentees to an

unusual degree, Proof of protits or evidence of direct loss is difh-

cult to obtain. The facet here apparent was, that the defendants

were willing. to lose all present gain im order to secure custom and

tlicreby future profits. It was testified that the complainants sold

their carpet at from 10 to Lo cents a vard more than the Dobsons,

and that upon the prices obtained by them their profit was, in the

year 1874, 15} per cent., and in 1875, 10} per cent. |

An equal profit might have been made by the Dobsons had they

asked the same prices. By underselling they increased the injury

- to the complainants, and it would be manifestly unjust that a benetit

should acerue to them from. this additional wrong to the patentees.

In the Cawood patent, 4 Otto, page @10, Strong, J., savs: “ In set-

tling an account between a patentee and an infringer of the patent

the question is not what profits the latter has made in his business

or from his manner of conducting it, but what advantage has he de-

rived from his use of the patented invention.” And in McComb vs.

Brodie, 5 Fisher, Pat. Cas., 394, Wood, J., savs: “The rule is not

what defendant made by the Infringement, or what he might have

made, but it is the loss sustained by the plaintiffs by reason of the

infringement. It is proper to inquire how many customers

60 were diverted from plaimtifts bv the wrongful conduct of de-

: fendant, and what loss plaintiffs have sustained in profits by

reason of such diversions.”

Applying these authorities to the facts of this case, it seems that

the Dobsons obtained very great advantages from the patented in-

.

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 37

vention; but instead of securing a money profit, they preferred to

secure the trade. They, therefore, sold for less than cost when the

similar carpet, at the same time and place, was bringing in other

hands a fair profit. Had they made such a profit, it would properly

belong to the complainants; and if they preferred to reap their profits

indirectly, the benefit, gain, or advantage may be reasonably esti-

mated as equivalent to the money profit they might have made.

The evidence clearly indicated that customers were diverted from

the complainants. Field, Leiter & Co. had been large purchasers of

this very carpet from the complainants; but after the Dobsons copied

it, at the request of their purchasing agent, Dixon Bean, they be-

came customers of the defendants, and bought more than one-fourth

of all of this carpet which the Dobsons made. A witness, John W.

Martin, testified before the examiner that a purchaser of the Dobson

carpet had told him that he bought it because he could not get the

complainants’ carpet fast enough. :

From the list of purchasers in evidence it appeared that many of

the persons dealt with both firms, and it is only reasonable to sup-

pose that the purchasing agents would visit both factories before

deciding, and that they would select the cheaper article.

Mr. Dornan testified to the faet;: he said: “ We lost the trade of

Field, Leiter & Co., and of others, through their being able to supply

the Messrs. Dobsons carpet in place of ours.”

This court, in the recent decisions in the cases of The

G] Bigelow and the Hartford Carpet Companies against the

present defendants, has adopted a very reasonable basis in

analogous eases, and which is applicable here, upon which the dam-

age mav be computed.

~MecKennan, Cir. J., in these cases savs: “All that is left for pre-

sumption is that the infringing carpets displaced in the market the

complainant’s carpet, and, hence, that the profits which would have

accrued to them upon the quantity of carpets put upon the market

is the measure of their damages. This presumption as against a

wrong-doer is not unreasonable.”

In those cases it was shown that the infringers had made a profit

in the carpet sold by them, and in that respect they differ from the

present case. But the master is of the opinion that a reasonable

- profit could have been made by the defendants, and that, as the

profits of the complainants were computed on a very fair basis, they

can be accepted as the basis of what the defendants might have

made. The presumption that the defendants’ carpets displaced the

complainants’ carpets in the market is, perhaps, stronger than in the

cases just cited, because the manufacturers were in the same city.

Every presumption should be taken most strongly against the de-

fendants. They wilfully and deliberately incurred the risk. They

disregarded repeated warnings, and refused to accept the proofs that

were offered them. :

Ordinary prudence should have prevented their contmuing the

manufacture pending the decision of the question of the infringe-

ment. The demand for this particular carpet was so great that itis

reasonable to suppose that the trade would have been compelled to

Ds JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL.

obtain the genuine de sign if the pirated artivle had not existed, and

‘the master is of opinion that they lost all of this trade In conse-_

quence of such piracy. How far the complainants suffered

through the defendants’ action in the loss of customers for

their other carpets, considerable though it may have been, 1s

tOO spe culative to be estimated.

The master therefore aw ards to the COM) iF ainants ah amount, as

shown in the following statement, equal to the profits they could

‘have made in the, vears ES74 and = 1S75, respectively, mm the carpet

made and sold by the defendants, if they, the complainants, had

made and sold it themselves.

(;?

By the complainant’s testimony it was shown that tneir average.

profits for the vear IS74 on these carpets was thirteen and_ three-

ey) per cent., and for 1575 ten and three-quarters (10?)

quarters (1:

per cont. and that the average price per yard was. more than one

dollar. :

by thie testimony of Nir. Dobson and schedules offered in evidence

it appears that the defendants mz ae and sold 19,2452 vards in 1874,

which would have vielded at one dollar a vard $19,243.50, and the

profits ot the complainants at 154 bony would have been $2,645.97

From the same testiniony it appears that the defendants in 1875

made _ sold 31,2808 vards, which at one dollar would have yielded

S31 2S80.50, and at the rate of protit for that vear, 10? per eent., the

ik pr would have made 83,562.65. "Phere was no testimony

as to the rate of profit in TS76, but as the amount of sales was unim-

portant in that vear, the master has not included it in his award.

Phe master therefore finds and reports that the complainants, by

reason of the miringemant by the defendants of their patented de- .

sign for a carpet pattern No, 6822, dated 19th August, 1873, sus-

ta med damages to the amount of six thousand unde ioht dollars and

iXty- two eents (SO 00S 62

Respectfully SUI bnaitted,

JOHN CADWALADER, JJaster

We accept SerVyv1e of not ce of filin: ‘y this re port.

L. ©. CLEEMANN.

Att Mi] for Complainants.

RICIUD P. WHITE,

April 21st, L882. kor Defe ndarts.

63 I venice Dake if Aye fore Fohir & rdw tfegs le) ‘ P.. , £3¢., Master.

[In the Cirenit Court of the United States for the iia District of

Poana’ lvania. In Equity. October Sessions, 1874. No. 2.

DorNAN cf al. va. DoRson ef al. :

Present: L.C.Cleeman, Esq. for complainants; Richard P. White,

lsq., for defendants :

Jawes Dopson sworn :

Statement being shown witness, le is asked if he has examined it,

‘and answers: :

Yes: the statement contains the full number of vards of carpet

hop Tigao: aa —

shed: agg Det ee : Ce

. . Fe fa no ie ren}

Mags

id aN Re OR a? a a ag

UGG RARE AGRE NBER ig es

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 39

made in the pattern infringed ; the statement was made by the book-

keeper; I have not compared it, but 1 know it is correct; there was

no carpet sold for cash not in the statement: I cannot state the colors

of the carpets made, but the statement contains all the carpet we

made of the pattern, of all colors; I have the knowledge of about the

number of pieces made at the mills, independently of this

G4 statement, which I believe to be entirely correct. (Statement

here received and marked Exhibit A.)

[ can state the profit made. on these carpets without reference

to my books. I arrive at it by our general mill statement. I have

not this statement with me.

The profit made on the first item of the statement, Exhibit “A,”

was nothing. I arrive at this answer from the fact that there was

no profit in any of the ingrain carpet which we have made up to

this date. The bulk of these goods was made in 1574, and we sunk

in that year, in manufacturing these goods, which we made almost

exclusively, seventy thousand doll: ars, in addition to the interest on

our capital invested. We sold no ingrain carpet at any higher price

than that mentioned—namely, one dollar per vard—as to the first

item. J meanall sales of ingrain carpets were at the same. rates as

stated in Exhibit “A” of the pattern infringed; there was no differ-

ence as to the price of patterns. Of course we sold three-ply at

higher rates. Some patterns were sold more r: apidly than others;

that is always the case. 3

Q. Would you not make more profit ona pattern that sold readily

than on one of which the sales were slower ?

A. The profit would be the.same exactly when the goods were

sold; but we would manufacture more of the readily sold pattern,

for the reason that it was in more demand. We do not make more

than we want of a pattern that will not sell; we put something in

that is better.

Q. In the caleulation of profite on your ingrain carpets, you de-

ducted the loss on those patterns that did not sell, did you not?

A. No, sir; they all didsell. We never madea pattern that would

not sell. Some certainly sold more readily than others.

Q. Would you not lose more interest on those that did not. sell

readily than on those that did?

65 (Mr. White objects to the question, as being merely specu-

Jative.) :

A. Of course, if we kept them over from season to season, we

would. This we rarely did; we tried toclose them all out during

the season

Q. You sometimes sc HT a pattern at a reduced price to get rid of it,

would you not? 3

(Objected to, as leading and argumentative.)

A. If it was damaged, or otherwise moperfect, we would.

@. And you ti ake all these things into consider: ation When you say

you m: ake no profit on the 1 Ingrain Carpets you sold ?

(Objected to, as founded upon a hypothesis having hho basis for

the inferences which the witness 1s: requested to draw.)

40) JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

A. During a season’s business there might possibly be twenty

pieces of various patterns upon which, to close out, we would con-

cede a few cents—not exceeding five cents a yard—-1n the price; and

from that, and our general business, | arrive at the cost of the goods.

Q. What [wish to know is, not what profit you made on your

general ingrain carpet trade, but on each picce that is specified in

this Exhibit “A” without reference to other patterns—please state

that. :

A. We made no profit on any prece mentioned, in Exhibit “A.” I

wish we had. :

(). When vou say this, do you mean on the account taken as a

whole, and averaging the loss on some of the pieces and the gain on

others, or do you mean you made nothing on each different piece,

whether vou sold it at one dollar or eighty cents per vard ?

A. We did not make any profit on any piece mentioned in that

Exhibit “ A.”

(). If you had recetved one dolls r per vard for every piece in that

account, would you have made a profit ?

(Objected to.)

66 A. That would depend altogether on the cost of the ma-

terial at the time the ‘goods were made.

Q. Say vou had sold the goods on February 11, 1874, at one dol-

lar per vard, would there have becn a profit?

A. Not at that date, sir; there was no profit in them to us.

hae, Can vou state the cost of materials at that date

A. Not without reférenee to the books: -the mil] os will show

they ‘ost of all raw materials and the cost of manufaeture.

(Mr. ‘lee ne it} calls for the books showing the Cost of the raw mae

te ale ee the cost of manufacture. that went into the carpets bear-

Ing the pattern in suit.)

Cross-examined :

Q. Leaving out of consideration any loss of interest by reason of

slow sale of particular patterns, and all loss by reason of damaged

or imperfect patterns and consequent reduction of price, was there

any proht on any Ot the eoods made ot the patle rn mn question ?

A. -No, SIV.

(). Will Vour books wise the particular lots of material put into

this pr: articular pattern, or will they only show the prices vou were

paving for material used aerally in vour business at the dates

when these goods were manufactured ?

A. They will only show the price of materials generally used at

that time, and hot the price of material used for a particular pat-

tern? :

— Q. Charging the material at the market rates, and the cost of

making at what you actually paid, as of the date ef the manufact-

ure of each and every piece of carpet made on this pattern, was

there any protit on anv of it?

rant A

t eWibesgemnieestnte re

Ey CORE

vs

t Ra con tk Ser as

ah Delia

4.

JOHN DORSON ET AL. VS. JOHN DORNAN ET AL. 41

(Objected to, because the witness-has already stated that he could

not tell the prices of the raw material at the times indicated, with-

out reference to his books.)

67 Answer to objection. No manufacturer can carry in his

memory the exact market price at specific dates from year to

year, but almost any manufacturer can tell whethe he was making

profit on the goods that he was making it almost his sole business

to manufacture at a specific time.

A. There was not any profit to us.

Re-examination :

Q. Was there any profit to anybody?

A. I can only speak for myself, but according to the report of the

corporations there was no profit to any one.

Adjourned to April 19th, 1877, at 3.50 p.m

| THurspay, April 19th, 1877.

Present: Mr. White and Mr. James Dobson, and Mr. Cleemann

with Mr. Dornan. 7

Mr. JAMES Dopson’s re-examination continued. Statement pro-

duced by witness showing the prices of varn sold at the dates therein

stated, marked Exhibit * B.”

(Q). What was the’ cost for the manufacture of the ingrain car-

peting you sold February 11, 1874, bearing the design in question,

per yard?

A. The amount paid out for labor in February, 1874, would be at

least 123 cents per vard; in addition to that there would be the cost

of steam-power and wear and tear of the machinery, which would to-

gether reach one and a half centsa vard more ; altogether the cost of

manufacture would be 14} eents per yard at the date asked. We ar-

rived at the amount, 12} cents, by taking the pay-roll of March,

IS77, and in 1874.wages were higher than they are to-day ; the addi-

tional one and a hi if cents per vard consists in the motive power,

oil, bobbins, shuttles, and harness.

Q. Would no part of this wear and tear, as you call it, be in-

cluded under the head of machinist, already calculated in your pay

roll ?

OS A. No, sir. ‘The machinist is to keep the looms in run-

ning order, to repair breakage, &e. The 1} cents per } rard

consists in furnishing reeds, bobbins, shuttles, harness, belting, picker-

straps, and other incidentals which are Hable to continually wear

out, and which are not made by the machinist at our place.

Q. Please give a detailed statement of the items and the charges

therefor by which you arrive at the price of 12? cents per yard for

workmanship. |

A; In + ply to the question [ submit the written statement marked

Exhibit *

(. fh you state the ave ‘rage we ight per yard of the ingrain car-

pet sold by you in F ebrua ary, 1874, bearing the design in question ?

6—482

a ee en ee ne

42 —-—s-« JOHN DOBSON ET AL. VS. JOWN DORNAN ET AL.

A. Yessir. fhe pic. be when finished, was twenty and one-half

ounces.

Q.- What would be the cost per yard of the material in the ¢ carpet-

ing y spoke n of at the rates CLIVE n in the statement ?

A. It would take six ounces of No. 12 worsted, costing 43 cents per

ounce, 284 cents for the worsted in a vard of carpet. Larriveat this

as follows: The worsted at 62 cents in the @rease will shrink when

ina dyed state ten per cent. Tt will cost for dyeing about seven

cents per pound, maki ns the cost of the varn, ina dyed. state, 76

cents a pound, or +? ibs per ounce. The double reel aver: ied SAV

433-cents mi LS74, aad 7 would take one pound of double reel in a

clean state to make one yard of carpet, which will cost fifty-seven

cents per poun g | arrive at the cost of the doub le reel as follows:

[t will shrink on an average. fourteen per cent. from scouring; that

makes the cost filt\ and three-quarter cents when scoured clean, and

it will cost an AVePALe of O) cents to dye, thus making the cost fifty-

seven cents. This will give a weight of twenty-two ounces, the waste

from winding, weaving, and finishing will reach fully one and a

| half ounces we Ve rd. ; |

69 Q. In making these estimates vou have considered the-

filling as being made altogether of white wool, have vou

not ? :

A. Yes, sir. ,

oe You did use black wool in the filling of the Carpets In ques-

tion, either in whole or in Part, did Vou not?

A. I can’t say we did; { don't think we did use any black wool.

Q. Can you ascertain this? :

Ay Yes, sir.) [ can say positively we used no black wool, nor

grey wool; nothing but white wool went into these carpets.

Q. Does not the white wool purchased by you always contain

some black or grey wool?”

A. Not to any appreciable extent: there will be grey locks in it,

that is all. : ;

Q. Is then the profit, as you calculate it, the diff ference between

What you sold the carpets at in [S74 and the cost of the’ various

articles you have enumerated in your previous answers?

A. No, it would not, as the cost-of selling and the trade discount

would have to come off. | |

Q. Have vou calculated trade discount in the price of varns you:

have mentioned ° 7

A. No, L have not, as yarns are not usually sold with a, diseount

rate; they are usually sold for cash, at 80 or 60 days. MeCallum’s

terms, Whose basis we have taken, are usually 60 days, and there

would be the interest, at 6 per eent., as tothe length of time sold to

fetch it down to cash, which would not average over one per cent.

from the eost of the Yarns. The carpets. were sold at SO days, three’

a cent. off for cash in ten days

a . Lo whom did you pay What vou have called the cost of sell-

ing *

i: To our salesman. rent-of the store, and othe rincidental expenses.

Che usual COST ot al

1}

;

H

ling earpets by regular commission houses

AE aynind ara nis

i i so Bm we aha Sorc here ¥

- % oe ig a ahele cal otek tee eee ee: Gite RSM i 5-5 ike Pty CPL IRIOE SBS. wees

rs ae eae, “i Ba

Wee oy Ait iy rues

a ees NN it ep

2 FR de ie’ SD AD

‘

‘ i TRO See Ri Oya eh a ats t ee he rrp ercmar

‘ pe hase ——” te, tot

. 2 a OPO eg

she Hs :

NE Aig Ms aa a a tg sa

rida sage’ “OO IP ARR re ara

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL, — «AS

7) is from 73 to 10 per cent.,and we charged in the pencil mem.

on Exhibit “A” five per cent. for commission and guarantee,

which is considerable less than is charged by other commission

houses as stated.

Recross-e nine

Q. You have stated the various items of cost entering into the

making up of a vard of carpet, state whether, in your experience as

a manufacturer, vou have found, upon six months or a year’s busi-

hess, that you can produce goods within the limit of such calcula-

tions made upon paper, or whether an allowance is found necessary

for leeway.

A. Our calculations have never come out accurate, the goods have

always cost us more than we calculated.

Q. HTas vour calculation included any allowance for your own

time and skill devoted to your business?

A. No. sir.

JAMES DOBSON.

Sworn and subscribed before me, this nineteenth day of April,

1S77. |

JOHN CADWALADER, Jr., Master.

May 17, 1877.

Ropert DoRNAN sworn and examined by Mr. CLEEMANN:

I sold a large quantity of the carpeting bearing the design in ques-

tion in IS74 and 1875, and sold some of it in the fall of 1878. I

sold it all over the United States, largely in the West, a great deal in

Chicago; we sold there, in Chicago, principally to Wield, Leiter &

Co. As near as I can remember, in 1874 we got $1.10 a vard, possi-

bly in 1876 the price may have been higher, [am not positive. The

average price during 1874 of our sales would be a httle over $1.10.

I can give the amount of this carpe ting that we sold altogether. It

was 430 pieces, averaging 120 vards to the piece.

71 Q. Please state what vour profit on the carpeting thus sold

per vard Was.

A. That is a difficult te to answer. IT can give the results

of the business in the vears in question, and average the profits of

the carpets in question, and thus give the percentage.

(). What is this percentage ?

<

(Mr. White objects.)

In the vear 1874 the net profits averaged over 15? per cent.

after ¢ harging interest on capital, and deduction of five per cent. for

depreciation of machine ‘ry and the bad debts incident to the vear.

In the vear 1875 the net profits, calculated in the same way, except

that we allowed 7} per cent. for depreciation in machinery, were 10}

per cent.

(). Can you give us a calculation of profits in the same manner as

they were calculated by Mr. Dobson at the last meeting?

se oeleetennenieeeeenae caneceene ae ee

%

44. = = = «JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

A. I can give you the approximate figures; 1t would be very dif-

ficult to be accurate.

Q. State what was the cost of the carpeting to you per vard which

you sold at $1.10 per yard in IS74.

A. As near as [ can give the figures, the cost was S73 eents In

1874, and the profit is, therefore, 225 cents. This price of $1.10 ts

subject to the discount of 3 per cent. off for cash, thus reducing the

profit to about 19 cents per vard. This, again, would be chargeable

with interest on capital and depreciation on machinery, which |

would estimate as follows: interest on ¢ cl} pital at 6 per ce ‘hit.

Q). State the elements t: Aken 41 into consideration by vou when you

say the cost was S73 cents

A. My ealeulation is based as foilows: 5 ounces of worsted, cost-

ing, dyed, 43 cents per ounce, 225 cents; one pound double-reeled

filling, dved, 50 cents; and the cost of manufacture, including wear

| and tear, 15 cents per vard. Thisonly apples tothe vear 1S74.

iz ~Atwhat cost have vou placed the cost of the worsted in that

vear, 1874? :

A. Sixty-three and a half cents per pound in the erease, and the

double reel ai sensi bate and a half cents per pound in the

erease.

Q. What was the average weight of this carpet, when finished, per

cate

In this carpet it Is safe to say twenty ounces.

o Did you calculate any loss from waste in the sum of S74 cents

giyen by you ?

A. Yes ; the waste is given at one ounce per yard; this the fig-

ures given will show. :

Q). W hat did you allow for ilabice y

A: Eight per cent. for the worsted and fourtecn per cent. for the

double- reel filling. 7

Q. How much tor the dve ing?

A. Five cents per pound on the worsted and six cents per pound

on the double-reel filling.

Q. Now, you have said that from ‘the 225 cents difference between

the cost of the carpet and the selling price there was to be de lucted

three per cent. for cash interest on capital and depreciation in) ma-

chineryv; is there anything else to be deducted ?

A. Not that I know of, except the bad debts.

Q. State, as near as you ean, how much should come off per vard

for these four items—discount for cash, interest on capital, bad debts,

and depreciation in machinery.

A. I ean only do this by taking our gross production in vards. |

might make an estimate, but could not say it was an actual fact. I

ean only make the calculation by consulting my books.

Mr. Cleemann requests witness to make this calculation and give

it at the next meeting.

“ extra-super.”

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 45

-3 . | JUNE 14, 1877.

Examination of Mr. Dornan continued:

The last above written question being repeated, the witness an-

swers :

As nearaus [I can. calculate, for the vear 1574 those four items

averegated about seven cents per yard, reducing the profit to about

fifteen cents per yard.

Cross-examined by Mr. Waite:

Mr. White states that he has no questions to ask at present.

Mr. CLEEMANN re-examines witness :

Q. Did you notice any falling off in the sales of your carpets

bearing the design in question, after the defendants introduced theirs

upon the market ”

(Objected to by Mr. White.)

A. We did lose some trade. We lost the trade of Field, Leiter &

Co. and of others, through their being able to supply the Messrs.

Dobson’s carpet in the place of ours.

Cross-examined :

(). Did you make any change in the quality of your carpet bear-

ing this design? — —

A. We made two qualities simultaneously—extra super and

super.

(). Did vou make both these qu ulitie 's from the time you first used

this pattern ?

A. I think not from the very first; I think it was first made in the

super quality.

wd (. How long did vou run on that quality alone ?

A. T can’t sav exacily from memorv, but the abstract of

sales which has been made by our book-keeper will show. I have

examined this abstract, and can now state that we made “ super”

only beginning in August, 1873, and we made the extra-super also

from the beginning of September, 1S75

Q. We ere those the only | two qualities that you ever made in that

pattern -

A. Yes, sir.

(). What was the difference between the two qualities ?

A. About fifteen cents per vard in price inthe vear 1874. IT have

not estimated the difference in cost of the super: but the difference

in cost would be about the same: that 1s, fifteen eents.

(). Have vou ine ‘luded both these qualities in the amount of sales

4 .

vou have me ntione i?

A. Yes, Sir,

~Q. On which of them has your es stimate of cost and profit been

based, which vou have given? | |

A. The actual estimate has been made on the best grade, the

AW JOUN DOBSON ET AL. VS. JOHN DORNAN ET AL.

Mr. Cleemann offers a statement of carpets manufactured and sold

rermy 99

by Messrs. Dornan, marked “ Exhibit D, June 14, 1877.

: , May 24, 1877.

ALLEN Cameron being duly sworn, examined by Mr. CLEEMANN:

lam a worsted and yarn spinner in the town of Westford, Mass.

I have been in this business twenty-six or twenty-seven years. I sell

worsted and yarns here in Philadeiphia.

(). Please state what the average market price of worsted Was Th

2.

S74. 3 3

7)” CO (Mr White objects, on the ground that it is not evidence

of profits on the part of Mr. Dobson, nor of damages to Mr.

Dornan.)

A. Ishall take the standard of 14 of our worsted, and the average

would have been 622 cents. The usual difference between a “12”

and “14” standard is five cents a pound less.

i). What was the average market price of double-reel in 1874?

A. Of our standard, the price’ would have been about 373 per

pound of the standard of 120 vards to the ounee. The highest

standard is 125 vards to the ounce; it runs down to less than a

hundred yards to the onunece. Under 100, we think it a low stand-

ard. | | :

(). What difference in price was there in the standard of 120 yards

and of 125 vards? :

A. Very little difference: we would make no difference in the

price toa customer who desired the larger standard.

(). Were vou familiar, in ES74. with the worsted and double reel

of Messrs. John and James Dobson’?

A. Twas acquainted with the general character of the varns made

by them. Whether I actaally saw the varns made by them in 1874

I capnot Say. [have some idea of the veneral character of their

varns previously to IS74. T never bought or sold their yarns, and

did not, therefore, examine them with the same care as [| would have

done in other eases where [-dealt in them. I have no knowledge

of their varns since IS74,as thev no longer sell in the market.

Previous to S74, they competed in the market for yarns.

(). Tfow did their worsted and double reel compare in quality and

value with that vou have spoken of as being worth 623 cents and

374 cents respectively ?

(Mr. White objects, because the witness states he did not

know the character of varn made by them at that time, and

76 that it does not follow that the yarn sold by them in the

market. was of the same character as that used by them in

their own manuftaeture.)

A. The varns of their standard of the worsted were of five cents

less value than ours; the double-reel or filling varn was worth two

or three cents less than our standard.

ed

|

| ONO Ene Serge

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 47

Cross-examined by Mr. WuiteE:

I do not know what the Messrs. Dobson got for their yarns, and

‘an give no instance where they sold for five or three cents less than

ours. I saw the yarns of Messrs. Dobsons, upon which I have made

the comparison of prices, at Leedom, Shaw & Stewart’s, prior to 1874,

but I cannot give the precise date. Mr. Leedom and Mr. Stewart

told me they were Dobson’s yarn, that was my only means of knowl-

edge. Iam speaking of yarns, not any particular lot, that I saw at

Leedom, Shaw & Stewart's. The yarns which I saw at Leedom and

Shaw’s were some that they stated they had purchased and some

which were said to be samples, and these I certainly saw more than

once.’ I cannot give the time when I saw any of these purchases or

samples; [ might approximate the times after some thought, but I

cannot now do it. At present [I can fix neither the month or the

vear. Mr. Stewart told me this was Dobson’s yarn ; he said nothing

but a few remarks about the yarn; I recall no remarks of Mr. Stew-

art as to grade, size, or other distinctions of the yarn, but merely in

comparison with the samples which I myself produced. I sold my

yarn to those parties.

-Q. What yarn did you sell and what price did you get?

A. I sold them “14s” worsted and double reel worsted, of the

standard of 115 yards. We only made one quality of filling yarn,

but the lengths varied ; the stock was the same. Our yarns varied

in price owing to the different qualities and colors put into it.

vi I happened to have my memorandum book in my pocket and

from this I ascertained the average price of yarns in 1874, as

stated.

(Mr. White asks to look at the memorandum book referred to, and

witness produces it and explains its use to him.)

Q. Does that memorandum book contain the record of your sales

in 1874?

A. Not all of them, some, perhaps not one in twenty. I have

averaged the sales I have in this book to form an estimate with other

means of information I have with me. I have not referred to my

books; I have not my books with me.

Witness opens his book accidentally at April loth, 1874.

Mr. White reads the first sale there “ 10,000 Ibs of 14s,” and asks:

Q. What is the price vou sold that ?

A. Sixty-seven and a half cents. The next sale is 10,000 Ibs. of

the same at the same price. I made a sale in April; 1874, of 5,000

Ibs., to Leedom, Shaw and Stewart of “14s” at 673 cents, also a

second 5,000 Ibs. at the same rate, and a third 5,000 Ibs. at the same

rate,

Q. Did you sell any doubsa ree! at that time ?

A. Yes: I sold to Leedom, Shaw «& Stewart double reel, three lots

of 10,000 Ibs. each, at 40 cents.

4S JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

te-examined by Mr. CLEEMAN :

The price of worsted fell after the dates mentioned.

(). Please turn to a-sale in your memorandum book at a lower

price. ca : :

A. I made a sale to Messrs. Dornan in December, 1874, of white

worsted, at 60 cents, and in September previous [made a sale of black

to Messrs. Dornan at 574 cents; the black was only 55 cents in De-

cember.

75 — Reeross-exanined :

The difference between black and white was five cents a pound.

ALLAN CAMERON.

Sworn and subseribed before me, this 24th Mav. A. D. 1877.

JOHN CADWALADER, Jn., Master.

Hartrty KxNigur, being duly sworn, examiied by Mr. CLEE-

‘MANN: |

~ Tam in the carpet busimess, a dealer in carpets. I have been in

the business since T8597. My place of business is 1222 Chestnut

street. T have handled goods manutactured by Messrs. Dobsons. I

-have handled their extra-supers to a small extent. [| have handled

carpets of the same kind of the Messrs. Dornan. There is a differ-

ence, ona Comparison of the two manufactures as to quality, from

ten to twelve per cent. in quality and salability in favor of the car-

pets of Messrs. Dornan. ‘The inferiority in the carpets of Dobsons

consisted in the quality of the material, and in the colors, which

asere not so bright as inthe Dornan carpets. I cannot say which

were the heavier carpi ts. ,

No cross-examination,

an - HARTLEY KNIGHT.

Sworn and subsertbed before me, this 21st day of June, A. D.

LS7i.

| JOHN CADWALADER, Jr., Master.

Thomas Depuy, being duly sworn, examined by Mr. CLer-

MANN: oe |

Paria retailearpet dealerat No. 57 South Second street, Phila-

delphia. | have been, off and on, tw ntv-live vears 1n the

business, l am tamnliar with the Carpet oft which the pattern

is being litigated im this suit. [have had in my store the carpets

~]

_-

ee

of this pattern made both by the complainants and the defendants.

[ consider the quality of the carpets of Messrs. Dornan Brothers and

Company fully ten per cent. better than those of Dobson’s. [mean

**

to say that I can get all of that ditlerence in price easily at any time.

[am not a practical carpet man—that is, not a manufacturer—and

only speak of the difference in salability. T cannot sav which was

the heavier. The Messrs. Dornan had better colors in their carpets.

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. . |

Cross-examined by Mr. WHITE

The piece of Messrs. Dobson’s carpets, of which I have spoken, I

got of Boyd, White and Company; I cannot say whether I have

had any other pieces of Dobson’s make in my store or not; I did

not know that the piece I have mentioned was Dobson’s until after

I had bought it. I refer to my testimony to one piece which I got

from Boyd, White and Company; I do not know whether Boyd,

White & Company manufacture carpets themselves; they do have

them made to order. My knowledge that Messrs. Dobsons made the

piece I have mentioned is derived from being told so by a gentle-

man not a salesman, but a dealer in carpets, who was in my store.

(Mr. White objects to the testimony given, as it appears to be

hearsay. )

Re-examined:

It had a ticket on it; it was Boyd, White and Company’s ticket,

but not the ticket of the maker.

: THOS. DEPUY.

Affirmed and subscribed before me, this 21st June, A. D. 1877.

JOHN CADWALADER, Jr., Master.

80 BENJAMIN C. Martin, being duly sworn, examined by Mr.

CLEEMAN: |

[ have been in the carpet business, as a salesman, for eighteen

years; my place of business is No. 19 South Second street, Phila-

delphia, with J. C. Foulk; Iam familiar, to a certain extent, with

the carpet goods made by Messrs. Dobson; we have, I have handled

their goods; I have handled a great many of the goods of the Messrs.

Dornan; the Dobson goods are inferior in quality to the Dornan

goods, in quality of Varn and in color; Dornan’s woods will weigh,

I should judge, an ounce and a fraction more to the yard than

the Messrs. _Dobson’s; | weighed a piece of Messrs. Dobson’s carpet

on May 20th, 1877, bought of them in January, 1875; I found the

varn to weigh the weight of a ten cent piece less than twenty

ounces; we have been getting about fifteen. cents a yard more for

Dornan’s carpets than for Dobson’s; I should judge the difference

in price to be ten to fifteen per cent. in favor of Dornan.

Cross-examined :

I weighed the yard mentioned by request of Messrs. Dornan

3rothers; the piece mentioned was bought direct from Messrs. Dob-

son in January, 1875; we were in the habit of buying from both

firms, but only to a certain extent from Messrs: Dobson ; the carpet

weighed by me was supposed to be extra-super ; it had been bought

as extra-super.

Q. Was there any difference in the prices paid by you for the

carpets of Dobson and Dornan °

i—482

os ae JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

A. That question I cannot answer exactly; the time has been so

long since they were purchased that | do not remember; I think,

however, the prices were the same from both.

(). You continued to buy goods from Messrs. Dobson, did you not,

until they refused to sell you any more?

A. I can answer this that the Messrs. Dobson have never refused to

sell us evoods ; I. pure ‘hased goods from them only a week ago.

S1 Q. Did you say, upon your oath, that Messrs. Dobson did

not refuse to sell goods to your house?

A. That question | could not answer, Whether they refused to sell

the house or not.

Q. How came you then, a moment ago, to state that Messrs. Dob-

~ son had never refused to sell goods to your house?

A. On the simple fact of my purchasing goods, from time to time,

and enly a week or ten days since I purchased an article there; I

made no note of it, as it was a small matter; we received a bill for

It; if was not a cash purchase.

@. What was the article, and what was the amount of the bill?

A. The article | pure ‘-hased a weck or ten days ago was a beam or

tufted mat, and the value one dollar and fifty cents.

Q. Be good enough to state any other purchase by your house of

Messrs. Dobsons, since January ist, 1877.

A. I could not state, as Tam not in the purchasing department,

except little matters, such as I have mentioned; you must go to the

book-keeper for that.

Q. Do you mean to say that you, an experienced salesman, would

not know if your house was selling Dobson’s carpet?

*A. I would know if they came in quanties, but not if they came

in small lots.

BENJAMIN C. MARTIN.

Sworn and subscribed before me, this 2Ist day of June, A. D.

L877. |

JOHN CADWALADER, Jr., Master.

Mr. Cleeman calls for the defendants’ books which show the price

at which they sold double reel and worsted up to the time they

ceased to sell the same.

Adjourned to 25th June, 1877, at 5.50 p.m

8? , JUNE 28, 1877.

Present: Messrs. Cleeman, var a Dobson, Dornan, and the master

_Mr. Cleemann called Mr. G. D. Browley.

GEORGE D. BROMLEY, ee affirmed, examined by Mr. CLEE-

MANN: 7

fam a carpet manufacturer, and have been fifteen years in busi-

ness in York street, below Front street. Philadelphia.

Q. Froni your experience as a carpet manufacturer, what will be

‘the waste from winding, weaving, and finishing a plece of ingrain

carpeting per yard; that i Is, an extra-super piece ?

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

A. I suppose one ounce per yard would cover all the waste.

No cross-examination.

GEO. D. BROMLEY.

Affirmed and subscribed before me, this 28th June, A. D. 1877.

JOHN CADWALADER, Jr., Master.

In response to the call of Mr. Cleeman, Mr. Dobson produces his

sales-books and the order-book covering the period named in the

call. 3

James Dobson produres the order-book.

_ Mr. Cleemann proposes to read from it the entries from 30th Octo-

ber, 1873, the prices at which the defendants sold worsted and double

reel. :

Mr. White objects—

First. That the defendants did not begin to make the carpets in

dispute until April, 1874.

83 Second. Because he objects to the reading of any of the en-

tries until it is shown that the varn referred to in them is the

same that was used in the manufacture of the carpets in question.

Mr. Cleemann modifies his proposition to read the entries, so as to

begin with the month of December, 1875.

Mr. Cleemann asks Mr. Dobson :

(). Is the double reel and yarn mentioned. in the entries of the

same quality as that used in the carpets manufactured ?

A. No, sir.

Q. Have you any books which will show the price of the yarn of

the same quality as used in the carpets made on the infringed pat-

tern ?

A. Not in those vears; in previous years I have. The entries in

the order-book produced will show those prices in former years.

(. Is the double reel and worsted, the sales of which are indicated

in this book in the years 1875 and 1874, inferior to the worsted and

double reel that went into the carpets in question ?

A. The worsted is inferior and would not make the carpets in

question ; that is the quality we sold to carpet manufacturers who

were making a cheaper grade of carpets. The “seven cut” men-

tioned would make the carpets—that is, it is of the same quality—

but it would be too heavy for the carpets in question. The “five cut”

and the “six cut” would not answer as it was a material used for

cheaper Garpets.

Q. Is the “ seven cut” more expensive than that used in the car-

pets In question?

A. No, it is not so expensive; the yarn we used in our carpets cost

more to spin.

Q. What would be the difference of cost in the two ?

84 A. The difference in the market price would be 23 cents a

pound more for the quality we used,

52 _ JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

Mr. Cleemann, subject to the objection of Mr. White, reads the

entries as follows:

~

roc. * 3 sg: .

4b és ve 4 és i? 7 eut 66 4 té +6

6 ‘10. Evans, Deitz & Magee, at 38 mos. from Jan. 1, ’74 3,000 Ibs. white

worsted 12's, at 55 cents, with privilege of taking 5,000 or 6,000 Ibs.

D reel, at 37) cents.

1873, Dec. 2. Thomas Boyland, ] 5’ ’k, “5 cut D. reel,” ut 37) cts., at 90 days,

(Mr. Dobson — that the cost increases with the number of cuts.)

1873; Dec. 22 Jas. Galbraith & Bros. (3 per. cent. off in 10 days,) 1,500 12’s white

toe

worsted, at ov cents.

6 “ 23. Jas. Hobb, (8 per cent. off in 10 days,) 4,000 ‘7 cut D. reel,’ at 374

es ; cents.

v4 og als bs ’ ee 1,000 6 cut D. reel,’ at 374

cents,

ve se rs . es 3,000 12’s white worsted, at 55

cents.

4873, Dec. 26. Artman, Treichler & Co., (} note at 90 days, } 4 mos., adding 1 month’s

interest.) 10,000 Ibs. 12’s white worsted, at 55 cents.

1874, Feb’y 23. Jas. Hobb, 5,000 Ibs. 12’s white worsted, at 60 cents.

Mo ee s 5,000 Ibs. “7 cut double reel,’’ at 40 cents, at 90 days.

1874, Apr. 27. Leedom,S. & Stewart 5,000 Ibs. 7 cut D. reel,’ at 40 cents, at 90 days.

1874, May 15. Jolin Boggs, (4 mos. from 1 June,) 10,000 Ibs white worsted yarn, at

~

So”)

; 55 cents.

1874, June 2 Shegog & Clark, 5,000 Ibs. 12's este dd, at 55 eents, at 4 mos.

os ” 4,000 6 cut D. reel,’’ at 40 cents. —

hee at se 1,000 ° 5 cut — se

1874, oun 2. Coans, D. & Magee, 5,000 lbs. 12's peer worsted, at 55 cents.

6 as 15,000 Ibs. ** 5, 6, & 7 cut D. reel,”’ at 40 cents.

_ Q. Please give the entries which show sales of yarn of the same

qui ality as went into the carpets in question ?

A. | can only show you the quality of the worsted from

$85 this book. All that was made up to 1572 was of the best

quality, and equal to that used in the carpets in question; I

therefore refer to any entry prior to IS72. In 1872 we commenced

to make carpets, and we had not combing machinery sufficient to

comb all the wool that we could spin into worsted. We combed

sufficient for our own use at the mill, the balance we made carded

worsted, and sold in the market what surplus we had after that date.

The differenee between carded and combed worsted is this: Combed

worsted—all the short wools and what we call noils is separated

from the long fibres, the long fibres was then made into worsted—

making out of LOO Tbs. of wood worsted wool 60 lbs. of worsted: the

balance would be short wool or noils. While carded worsted—the

long and short wool is not separated, but worked together, and out

of 100 Ibs. of that wool we would make about GO Ibs. of worsted—

S87} to 90 Ibs. The worsted so made is poorer, and not even, nor

Was it strong enough to make into the goods in question, but was sold

to parties who made a che: aper grade of goods. Those are om par-

ties of whose entries Mr. Cleemann has read. The result is. that

the yarn was cheaper; it was fully from 5 cents to 73 ate a yard

cheaper and does not cost as much to make | v 72 cents a pound.

Q. Do these remarks apply to the 10,000 Ibs. sold to Artman,

Treichler & Co. on 26th Dee., 1873?

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 53.

A. Yes; they applv to all sales after 1872, and to some of the sales

of 1872. ‘This refers to worsted.

Q. Do you state that, prior to 1872 and during 1872, you sold

worsted like this in the entries read, from:5 to 7 cents a pound less

than the worsted like the worsted you put in the carpets in ques-

tion ?

A. At the time mentioned we did not make the cheaper grade of

worsted, and consequently could not sell it at any price.

Q. How did vou then compute the difference of value?

A. The best quality of worsted suitable for making extra-

86. super carpets, must be made out of long combed wool, with-

out short wool or noils. Such wool will vield 60 per cent. of.

good worsted, while carded worsted will yield the whole, except the

waste which is about 10 per cent. ; consequently we get JO per cent.

in one case, and 60 per cent. with the short wool in the other; and

this makes the difference.

(). How about the double reel in the entries read to the master—

is that as good as the quality in the carpets In question ?

A. The material in the “7 cut” double reel mentioned is as good

as the material in the carpets in question; but the yarn is not so

fine, nor would it be worth within 23 cents a pound as much as that

used by us, on account of the length and fineness; to spin it to that

fineness we had to put a little finer wool with it.

Q. Do these remarks apply to the 5,000 Ibs. of “7 cut” sold to

Leedom, Shaw & Stewart?

A. Yes, sir.

(). If a Isa difference in the value, why do you sell at the

same date 5,6 and 7 cut D. reel at the same prices?

A. 5 cut doabin reel is not near so valuable as 7 cut, made out of

poorer material, the yarn being so much heavier; the 6 cut isa little

better than the 5, and the 7 is better than the 6; and parties making

it cheaper grade of Cc arpet wish a little of all of them, and we make

the prices at an average of all; the 5 eut alone would not be worth

more than 35 cents, while the 7 cut would be worth 40; but parties

prefer the 5 cut at times for their work, and we sell it therefore at

the same price; the grades mentioned in the entries as 5, 6, and 7

eut are not full standard, but were made to meet a demand of the

Kensington manufacturers; they would measure three-fourths to a

eut less than they were called; what we used in our own earpets 1s

from 7 to 7) cut full. ae

How many yards will the 7 cut run to the ounce that you used

in the carpets In question ?

87 A. Sixty-five vards; that sold to Leedom, Shaw «& Stewart

will run from 55 to 55 vards.

Adjourned to 3d July, 1877.

| 3p Jury, 1877.

Mr. White not appearing, adjourned. |

JuLy 67H, 1877.

The order-book of Messrs. Dobson is handed to Mr. James Dob-

son, and he is asked by Mr. Cleeman to refer to the date of January,

54 JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

1872, and state if there is anv higher charge entered there above the

rate of 624 for double reel. Please give the entries for double reel

in January, 1872.

A. The double reel ae alwavs at 573 ae the worsted

is entered at 72 cents, during the whole of Janu: ry, Asie

Q). Turn to July, 1872; what are the prices there :

A. In July, 1872, doub reel, o4 cents, 523, 523, ne ot cents, 95,.

cents, 54 cents, 531, 54, 53, 54, 54, 54, 53, 54, 532, 534, 54, 54. The

worsted, all 12's, e ntrics are S21, 85,85, 85,85, 85, (black worsted 80),

85, 85, 80, 85, 85, 85, 89, 8a, $d, $5, 85, 85, SO, SO.

Q. Turn to the vear 1875 and give the entrics for January and

July in the same way. :

A. In January, 1S73, the quality of worsted charges, double reel,

does not change at all.) January, 1875, double reel, 50, 50, 50, 50,

50. 50. 50, dO, 50, 50, 50, 50, 50, 50.

(Q). Please give the highest price obtained by you in the year 1872

for double reel,

A. Sixty cents was the highest price obtained for double reel in

1872 ( and 90 Gents for worsted).

(). Continue the entries of double reel lor L875.

SS A. February, 50,50, 50, 50, 50, 50, 50,473 (net cash). March,

47, 48, 47, 473, 47, 45,47, 46, 45, 46, 45, 46, ib 45, 46, 44, 45, 421,

42} ,44. April, 424, 4, 43, 43, 43, 4! , 43, 42, 423, 421, 423, 423, 425.

Mav and June, 421, 424, 421, 422, 421, 422, 421, 413,421 49 July,

121, 421, 421, 421, 41, 421, 41, 40, 41, 421, 40, 40,40, 423, 40 ) 40, 40,

40, 40, 42, 40, 40 40, 40, 40, 40, 40, 424, 40, 40, 40,40. Jo b lot, Sep-

tember HO, 1875, t . Judge Bros., at 35 cents, 40, 40, 58, 374, 373, 374,

4.3 i ST, STL BT. 345.

Q. Take IS74 in the sume wav for double-reel.

A. Jan’y 10, ISTO, 40, 40, 40, 40, 40, 40, gs 423, 40, 40, 40, 414,

113, 423, 425, 413. Sept., 1874, 373, 374, 374, 383, 40. Next entry

August 2d, 1875, at 573, a speci 7 a ae is another entry in

Mav, at 373. Phe worsted would change the quality from about the

middle of 1872. 7 |

(). Now compare the Vvear LS69, as to worsted and double reel, with

MeCallum’s statement.

ll

{ —

ee

ee

As Worsted, ¢ id 4%, (44, 8Y, 644, (14, (44, (44, 7744, (és, (43, 7¢ ( 13,803 >

143, ad, 444. Jus Gas, (is, (i, (és, ie), i, io), £0. ae

ree|—: |

Mr. Dobson states that in IS75 and 1874 thev did not sell their

varn at‘the market value, beeause of a combination of the carpet

manufacturers of Philade Iphit to buy varns elsewhere, as we were

about competing with them in making carpets, and they would not

buy our yarn unless we sold it cheaper than elsewhere. The com-

bination was formed, | think, in 1873, or early in 1874; a meeting

of the carpet manufacturers was called for the purposs-our heav iest

customers Were In it.

RoBpert DOoRNAN re-examined:

Q. [low much less profit did vou make in 1875 than in 1874 on

the carpet in question per yard? :

ET AL. VS. JOHN DORNAN ET AL,

JOHN DOBSON

gore to by Mr. White as irrelevant.)

. The profit on the carpet in 1875 w as about three cents per yard

less than in 1874.

89 @. How. much would a yard of carpet weigh in which the

double reel ran 65 vards to the ounce?

A. That would depend on how much the’varn wasted inthe scour-

ing and what the weight of the worsted chain would be; basing the

shrinkage of the double reel at 14 per cent.,and allowing 6 ounces of

cleaned worsted to the yard, a yard of carpet, when finished, would

not weigh over I8 ounces

Cross-examined |} by Mr. WHite:

Q. You said before, I believe, that you could not givethe exact cost

of your carpet or the exact profit made upon it ?

A. I did give a computation of the cost as I could possibly get at

it, or as near as anybody could.

Q. Did I not understand you to say, sir, that was merely an esti-

mate, and that you could not undertake to give exact figures ?

A. I stated that it was impossible for anybody to give the exact

cost of a yard of carpet, but, after consulting our books, | made a

statement of the cost, which is as near right as anybody could make

it, there are so many contingencies that are merged into the cost ofa

single yard. I will say, further, that [ hold that it is impossible for

anybody to give an estimate of the cost that may not be astray a frac-

tion of a cent over or under.

@. You have said that your estimate was based upon an examin-

ation of your books; will you please state exactly in what way you

get the cost of a vard of carpet from your books ?

A. I had recourse to the books to find the specifie cost of the mate-

rials entering into the carpets at specific times, to which cost 1 added

the manufacturing expense, in determining the cost of the fabric.

Q. Did you make or purchase the yarn you put into these car-

pets ?

A. We did both.

9() Q. Please state which of your books you consulted, and to

what entries you referred for the cost of the yarn which you

used in manufacturing this carpet.

A. The book consulted was the invoice-book, and the items were

the items of purchases for 1574.

Q. Did that show the cost of the varn made by you?

A. No, sir; the computation of the cost was mi: ade up from the cost

of the purchased > yarn, taking that as a basis.

Q. Whom were these yarns purchased from?

A. I can only tell by consulting the inveice-book, largely though

from the “Abbott whe orsted Company,” Graniteville, Mass., and other

.

Q. Did you use e that varn exclusively in the manufacture of any

of this carpet?

A. No, sir; there was a cheaper varn that actually went into the

carpet ; but my computation did not include that cheaper class of

yarn. |

56° JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

Q.. Uad _— not to use your own better yarn with the “Abbott

yarn’? :

A. Our yarn did not cost any more than what we bought of the

Abbott Worsted Company, as I judge they made a profit on the ) "arn

we bought.

QJ. Question repeated,

A. We did use our yarn with the Abbott yarn.

(). In What proportions ?

A. I can’t say ; we used most of ourown. Formerly we had made

the same quality.of carpets entirely of the “Abbott yarn.”

(). When did you hake carpets of Abbott Varn exclusively ¢

A. Lean’t give the exact time, but it was prior to our doing our

owl spinning. ;

QJ. Please give the time as near as possible.

A. I can't say positively, but as near as I can remember it was in

1871 or 1572 that we begin to spin our own yarn. Prior to that we

used the Abbott yarn exclusively. Pe

91 QQ. It was the price of the “Abbott” yarn on which you said

| you made your calculation ?

-A. Abbott and othe rs, | said. |

(. Now, sir, what is the market value of your own yarn as com-

pared with the Abbott varn ?

A. At that time our yarn was a better yarn and was probably

worth, inthe market, 23 cents per pound more.

Q. Did you use the Bigelow yarn in this carpet ?

A.. We did not use any of 1t in this carpet.

Q. [fT understand you, you estimated the yarn at the prices you

Jr uid ; will Vou How state how you arrived at the iInanutfacturing CX-

perises ?

A. Larrived at it by computing all the items of expense and the

waste, Warping, Winding, spooling, finishing, Ke.

Q. Is there any where upon your books any memorandum or any

og in of getting at the cost of a vard of carpet ?

The cost of a yard of carpet from our books can only be de-

te as | have given it; there are no means by which we can

determine the exact cost, as I have betore stated.

Q. Then you took. what you were paying for the materials and

what you were paying for the manufacturing expenses, and made

the best guess vou could at the cost per yard ? |

A. | made no guess whatever as to the cost; my calculation is as

nearly accurate as anybody can make it who is engaged in the busi-

ness.

QQ. In sbedasne the cost, did you calculate the 2} cents extra

which you say your yarn is worth over what you bought?

A. I have said that the calculation was based on the price of yarn

whichwe bought,and that our own yarn did not cost more than what

we bought. The reason we bought varn was that we did not at all

times make suflicient of our own.

Do your books show the cost of your own yarn, or is that also

an estimate ?

Y2 A. The books do not show the cost of the yarn. It is in the

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. = 557

power of a manufacturer who understands his business to es-

timate the cost of varn or carpet within a fraction of the actual cost;

and it is my business to buy the wools and to contract for the spin-

ning of the yarns, so that Iam competent to speak of the cost.

Q. Have you no computation on your books of the cost of yarn

*

prior to its going into the carpets?

A. No, sir; excepting the general estimate that is always made—

up, taking into consideration the cost of wool and its shrinkage, and

the cost of its spinning. I would say that we are not in the busi-

ness of selling yarn,.and, therefore, it is not so necessary to make an

estimate. . |

Q. Don’t you make any entry of the wool when it is given out to

be spun ? |

A. We have a. deliv ery-book, in which we mark the wool which

goes out to the spinner.

Q. Have you not an entry which shows the amount of yarn you

get back for the wool?

A. Most assuredly we have—in a book, in which we give the spin-

ner credit for the yarn returned.

(. Are those the only entries which you make of the yarn before

it is put in the carpet?

A. Yes, sir. : :

Q. Be good enough to tell me how you came at the diminution of

about 3 cents profit per yard in 1875 from 1874?

A. By the difference in the cost of the material.

Q. You have not explained how you arrived at that reduction.

A. I made a computation for 1875 as I had done for 1874, and

had it ata — meeting, but it was not desired. I can make it

again.

Q. Just state what books you used in siekinge this computa-

tion?

93: A. I have stated that I used the invoice-book for the cost

of the materials, and the wages-book and the pay-roll to

determine the cost of manufacture.

Q. Please produce at the next meeting the computations for both

years of 1874 and 1575.

Adjourned to Tuesday, July 10, 1877, 3 p. m.

| Juty 10, 1877.

Cross-examination of Mr. Ropert DoRNAN continued:

Mr. Dornan produced a paper marked “Exhibit E,” containing

the computations for the years 1874 and 1875, called for by Mr.

White at the last meeting.

Q. Is the price which you give here—4} cents per ounce for Ab-

bott—what vou gave during the whole vear 1874?

A. It is the average. [ ascertained the aver age by taking the

total invoices, the, different prices for the year, and averaging them.

QQ. Did vou purchase this varn ready for weaving?

A. The yarn had to be scoured and dyed before weaving. I pur-

chased it in the grease. .

S—482

58 | JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL.

Q. What did it cost you in the grease?

A. The average cost in the grease was 633 cents per pound.

(. Then in the price you give here, (i xhibit E,) vou state, not

the average of what you | ought it at, but vour estimate of what it

cost you. atte reyou dye d and scoure «lit and deducted the waste from

it. |

A. The price has those deductions in that statement. 1 mean

that those matters are added to the cost in the statement rendered.

Q. The allowances for shrinkage and dyeing are a matter of esti-

mate with you, are they not? :

A. They are a matter of fact, though the item of shrink-

D4 age varies a trifle, probably one per cent. The shrinkages

estimated there are ai ur average.

(). Be ood enough LO CLIVE ine a direct answer , Whether the allow-

ance for shrink age and dyeing is, or is not, an estimate?

A. To the best of my knowledge it is an actual estimate of the

shrinkage; I mean the actual amount of shrinkage, and the actual

cost os dyeing. |

Q. Now, if you have any means of getting from vour books the

ahtead amount of shrinkage and the schont cost of dyeing other-

wise than by estimating it, please state how it 1s done, and which of

your books will show it?

A. Our dyeing book will show theactual loss on the yarn, but the

different makes of yarn are not-particularized. The cost of dyeing

Is ascertained by taking the jobber’s prices for dyeing the different

colors entering into this ¢: a @ in question : 10 cents per pound for

the scarlet, 3 cents per pound for the white, five cents per pound for

the other colors. These are the prices for dyeing the filling; the

worsted is the same, with the exception of the scarlet, which 1s 9

cents, instead of 10 cents.

Q. Does your yarn book ‘show what particular yarn was used in

this special carpet, and your loss upon it, as distinct from your other

business? |

A. No, sir; the yarn was in eeneral use In all the patterns.

(). [low many sorts and makes of-varn did you use in those two

vears, 1874 and 1875”

A. We used various sorts, to wit, worsted, double-reel white filling

and single grey filling; Eeannot specify the makes—there were a

number. T can mention “ Abbott Worsted,” “Saxonville Worsted,’

“Abhott Double-Reel,” our own make of “ Double Reel,” and Job

Batty “Single Grey.” There may have been others, but Iam not

| positive. | |

95 (). Is there not a considerable variance in the shrinkage and

loss ipon these different varieties of varh f

A. Yes, sir, there is. i : :

Q. Do you still persist in saving that you took the actual loss of

aste and cost of dveing. and not an estimate of what vou consid-

at it to be?

= | do.

_ Tf you used these different varieties of varn,and there was a va-

riance as to the shrinkage on each, and your yarn book did not keep

Pe ek

cals Mag ege nge,

aS

JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 59

any separate account of the different kinds, will-you be good enough

to tell us how you’ got at the actual shrinkage of the yarn used in

these carpets ?

A. I stated that the different sorts of yarn varied in shrinkage.

The same make of worsted will nearly always shrink the same, and

the same is true of double-reel and single grey. The varn book

shows the varieties, though not the different makes, and the shrink-

age given is made up of the actual losses on those yarns, without re-

gard to who made them.

Mr. White repeats his last question.

A. I cannot answer the question more plainly ; the answer is fully

as plain as the question.

(). Now, what is the difference 1 in price between the New England

varn and the Abbott yarn * :

A. I presume | you mean the Saxonville yarn. (Mr. White says

“ves.”) The Saxonville yarn cost. us 5} cents per pound less than

the average cost of the “ Abbott yarn.’

(. Ilow many ounces of the Saxonville yarn would it take to

make a vard of this extra super carpet ? 3

A. We never used it alone in this carpet, but | should say that

six ounces of dyed worsted would be adequate for a yard.

Q. Be good enough to tell us what you paid | a pound for that Sax-

onville yarn. ©

A. I am not absolutely ie but nearly so, that it was 58

96 cents per pound. “We made but one purchase in the year

1874; I can produce the invoice. I can only state from

memory that the purchase was in 1874. That yarn was bought on

three months’ time.

(. How many picks to the inch do you put in your ae ?

A. Thirteen pairs, or twenty-six picks.

Q. What makes of double-reel filling did you use in this carpet?

A. Abbott double reel and our own make.

(). Can you tell us how much of each you used ?

A. Most largely our own; I cann

This text is long and has been trimmed here. Open the source document for the complete record.