Record and brief — The Cincinnati Siemens-Lungren Gas Illuminating Company, Plaintiff in Error, vs. The Western Siemens-Lungren Company

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RECORD, CASE No. 14,169.

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1893.

TERM No., 193

THE CINCINNATI SIEMENS-LUNGREN GAS ILLUMINAT- 2 |

ING COMPANY, PLAINTIFF IN ERROR, -

US.

THE WESTERN SIEMENS-LUNGREN COMPANY.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF OHIO.

FILED SEPTEMBER 25, 1890.

RECORD, CASE No, 14,169.

SUPREME COURT OF THE UNITED STATES.

OCTOBER ‘TERM, 19933.

TERM No., 193.

= I THE CINCINNATI SIEMENS-LUNGREN GAS ILLUMINAT-

he | ING COMPANY, PLAINTIFF IN ERROR, :

US.

THE WESTERN SIEMENS-LUNGREN COMPANY.

IN ERROR TO THE CIRCUIT COURT OF TILE UNITED STATES FOR

THE SOUTHERN DISTRICT OF OHIO.

INDEX.

% Original. Print.

. SE nce mein ho oe end cee nee GRE Ka ee dane -o how <a ne eee ] ]

Ne i wi ccck ol es ernie NR RN Mahe wee area ins eee | 2 |

ee Exhibit A—Statement of account. ~~~. -----+. .----- ---- -------- os 2

: ; . . oiiis db nda bie ob ons Cea 4 3

: I iat oa een 4 enn oo eee ree cme eth anaes o 4

: Tiarahal’s FetuUrG OF SUMIINIONS 2. on .-.6 6 oe ce ceemee ce se ons sees 6 4

Order granting leave to file answer and cross-petition ii eae 7 5

Answer and cross-petition ics slain ic ci Uae side SMsuabldelink aia “a: dvsioninns aaeaceigaial 7 dD

Exhibit A—Contract between the Siemens-Lungren Illuminat-

ing Co. and A. Hickenlooper e¢ al., Nov. 9, 1887. 19 11

Demurrer to answer and cross-petition -.-. -.-- ---. ---.------ ------ Ze 13

teply cia liek otek snide. ina ow a Aiea SU nein nA Abad 24 14

Order granting leave to withdraw demurrer and file reply ---------- 26 15

Reply --. --- ---------- ---- ------ ------ -- ---- --+--- ---- ---------- 26 15

Order granting leave to withdraw demurrer and file reply -----.---- 27 15

Amondment to cross-petition . .. 2... 6-20. ---. -2 +n + 5+ ene 28 16

Order beginning trial ._-. -.-. ---- ---- ---~-- -.---- ---+- ------------ 29 ee

Order concluding trial ~ .----- wane ne ee ne noe wren en ne en ne rene eee ne

Jupp & DerwekiLer, Prinrers, WAsHINGTON, D. C., JUNE 28, 1893.

II 3 INDEX.

Original. Print.

IN ca: sass sinsacnansin 2 iets sabia cases oh plans annals: Swine sm oe we iene 30 18

nth at ah Nt GN none macnn: @ renin Re sean ween cence 32 19

IE od cee de bee Heke Sk Re Reeer oun bees ree emee 32 19

Supersedeas bond - Cd i an ed cd oh le 30 20

Order extending time to prepare bill of exceptions .....--.-..--- ---- 35 20

Order allowing bill of exceptions, writ of error, @c. ....-........... ~*~ 36 21

See OE INE oo ce ctisen mee ss ermine a6 ee nee ee 2 - eo mnee 37 22

Testimony of G. N. Clapp ----- ---------- a + ek Seine lls 39 233

NE oon ciidisi nie wcee + nawee one 41 24

eT FE in een cn ewe coe «enw —<- os 30

William Smith on (lk deed wen cnwine 92 52

NS Gh TI I iii eek he ane mctire - one seen - 95 d4

Judge's certificate----. 1-2 .------- So eens i ain 108 60

Exhibit A—Depositions and exhibits for plaintiff .--. ..-.------ 109 61

Notary’s certificates, Ge. ............. ....-......... 109 61

Deposition of Leopold J. Wolf ~------------ ------ 115 Ge

POU TEEN bnccccckcscrccnsscceemn 86 76

Exhibit A—Certificate of incorporation of the West-

ern Siemens-Lungren Company, &c.- 199 ' 88

B & C—Extract from minute book ___.-...---- 166 91

D & E—Extract from minute: book -----.------ 167 92

F—Agreement between the Siemens-Lun-

.gren Co. and Leopold J. Wolf, April

A oad ns re emimme seme emu 168 93

G—Agreement between Leopold J. Wolf,

the Western Siemens-Lungren Co.,

and the Siemens-Lungren Co., June

ities acdcwen woken (ae 94

Ii—Agreement between the Siemens-Lun-

gren Co. and the Western Siemens-

Lungren Co., June 28, 1888......--. 172 95

I—Agreement between the Siemens-Lun-

gren Co. and Jose yh Wolf, April 22, ,

BE oe hkak cick cic ek ean lio 96

J—Contract between the Shanna: Lungren |

Illuminating Co. and A. Hicken-

looper et al., November 9, 1887-_---- 180 U8

K—Letter from the Cincinnati Siemens- ,

Lungren Gas Illuminating Co. to the

* Siemens-Lungren Gas [luminating

Co. at Chicago, February 4,1888__.. 184 101

Iu—Same to same, March 6, 1888 _.--.---- 185 1OL

M—Samie to same, Mareh 7, 1888 _ .___ -__- 186 102

N—Letter from the Siemens-Lungren Gas

Illuminating Co. to Middletown Gas ‘

Co., March 3, er... ee ee oe 18% 102

O—Same to same, March 12 1888 icinconcin ae 103

P—Same to same, March 28, 1668 .W.n.ssin FOO 103

Q—Letter from the Western Siemens-Lun-

gren Co. to the Cincinnati Siemens-

Lungren Gas Illuminating Co., July |

S, 1888 ....... il inna ies acces 190 103

INDEX. III

Original. Print.

Exhibit R—Letter from E. O. Eshelby, president, 7

&e., to the Siemens-Lungren Gas

Illuminating Co. at Chieago, July 9,

sss ae lailp ah inal Oak aac ccoleaaieian 191 104

S—Same to same, July 16, 1888-...------ 102 104

T—Letter from the Western Siemens-Lun- ;

gren Co. to BE, QO. Eshelby, president,

dec., duly 17, 1900 (7) .... ---.--24.. 199 105

U—Telegram from EE. O, Eshelby, president, |

to L. J. Wolf, July 20, 188-._--,--- 195 1V00

V—Telegram froin Western Siemens-Lun-

gren Co, to E. O. Eshelby, presi-

dent, &e., July 19, 1888 ..---- Laila 196 106

Same to same, July 21, 1888.02.22. 196 107

W—Letter from Western Siemens- Lungren

Co. to Ki. O. Eshelby, pres ee

WO iia ' 197 107

a nae from the Cincinnati Siemens-

Lungren Gas Iliuminating Co. to the

Siemens-Lungren Gas Hluminating

Co. at Chicago, July 21, 1888 ..----- =—-:199 108

Y—Telegram from E. O. Eshelby, president,

to L. J. Wolf, July 31, 188-..-2-.-. 200 108

Z—Letter from E. O. Eshelby, president,

&e., to the Siemens-Lungren Gas Il-

luminating Co. at Chicago, August

2). POE <i ois cnn ena aero ae 201 109

No. 1—Letter from the Sictaianliaianin Gras

Illuminating Co, to the Cineinnati

Siemens-Lungren Gas Illuminating

Co., Awawst By TCG nica ee ene - 202 109

No. 2—Letter from E. O. Eshelby, president,

&e., to the Siemens-Lungren Gas II-

luminating Co., August 9, IS88_.--. 204 110

No. 3—-Letter from L. J. Woif, president, to

the Cineinnati Siemens-Lungren Gas

Illuminating Co., August 14, 1888... 205 110

No, 4d—Letter from E,. O. Eshelby, president,

to the Siemens-Lungren Gas Illumin-

ating Co., August 15, TS88_022----. 206 110

No. 5—Letter from the ican ieaaes Gas

INuminating Co. at Chicago to the

Cincinnati Siemens-Lungren Gys []-

luminating Co., August 17, I888 ---. 207 11]

No. 6—Letter from E. O. Eshelby, president,

to the Siemens-Lungren Gas []lumin-

ating Co. at Chicago, Aug, 28, 1888_. 209 112

No. 9—Letter from the Western Siemens-Lun-

gren Co, to E. O. Eshelby, president,

September 11, 1888... ....-.-.-.---. 210 113

No. 10—Telegram from the Western Siemens-

Lungren Co. to the Cincinnati Sic-

mens-Lungren Gas Illuminating Co.,

September 14, 1888_.----. .-_--. -_.- 213 114

IV / INDEX:

Exhibit No. 11—Letter from the Western Siemens-Lun-

gren Co. to E. O. Eshelby, president,

September Pe ek seen

No. 7—Letter from L. J. Wolf, president, to

the Cincinnati Siemens-Lungren Gas

Illuminating Co., August 17, 1888 —-

No. 12—Letter from the Western Siemens-Lun-

eren Co. to E. O. Eshelby, president,

October Oe ice bse so naw ces

Exhibit f-Tiaponiions and exhibits for certian cnc bee

DEC 6 COTTICRI, TRC, i ook cw es we ee cee

Deposition of Emanuel Stein ..---...--------------

Deposition of Henry A. Brognard—. 2-2 ..---. .---

Exhibit A— Price-list of the Siemens-Lungren Co. of

Philadelphia, November 21, 1887 ._--

B—Circular of the elntinsitiaauen Co. of

Philadelphia, February 1, 1887_-----

1— Bill of Siemens-Lungren Co. to West-

ern Siemens-Lungren Co., July 30,

Ee ek ce ss aks emai aa watts

—-Letter from HH. A. Brognard, secretary,

' &c, to E. O. Eshelby, president, Oc-

es 6 iieces pox oce nesses

No. 1—Letter from E. O. Eshelby, president, to

the Siemens-Lungren Gas Iluminat-

ing Co., February 11, 1888... -_----

No, 2—Letter from J. V. Baird, assistant secre:

tary, to E. O. Eshelby, March 9, 1889_

No. 4—Letter from L. J. Wolf, president, to

EK. O. Eshelby, president, August 14,

SE db he cen as a ae ee enn

No. 3—Letter from E. O. Eshelby, president, to

the Siemens-Lungren Gas I]luminat-

ing Co., August 15, 1888.2. 22 Le.

No. 5—Same to same, March 7, 1888 .--_2 Sac

eG 000 UNION iiiiis boa ks Sc se pe es oe oe ee een

te I ic cia oo ok reall: vic ak een ads Ankle bivikcw ada ww

OE ON i es ee oes oo ce cece aed eee

a a as

a

rr Or OU 6en OF eek

Original.

»

214

216

217

219

219

222

232

263

267

268

269

270

272

2i5

276

278

Print.

114

116

154

-

mee eee,

¢ INC INNATI S.-L. GAS ILLUMINATING CO. VS. WESTERN S.-L. CO. I

l Atastated term of the circuit court of the United States of

America within and for the western division of the southern

district of Ohio, in the sixth judicial circuit of the United States of

America, begun and had in the court-rooms at the city of Cincin-

nati, O., in said district, on the first Tuesday of April, being also the

first day of that month, in the vear of our Lord one thousand eight

hundred and ninety, and of the Independence of the United States

of America the one hundred and fourteenth—present, the Ton.

(scorge Rt. Sage, district jJudge—among the proceedings had were

the following, to wit:

Toe WESTERN SIEMENS-LUNGREN CoMPANyY, )

a Corporation Created under the Laws of

the Sls ate of [limois, Plaintiff,

us,

THe CINCINNATI SIEMENS-LUNGREN Gas ILLU-

MINATING CoMPANY, a Corporation Created

Under the Laws of the State of Ohio, De-

fendant. | | ee

#4226. For Money.

Be it remembered that heretofore, to wit, on the 25th day of Feb-

ruary, in the vear of our Lord one thousand eight hundred and

elelity-nine, came the plaintiff, The Western Siemens-Lungren Com-

pany, by its attorneys, and filed in’ the clerk’s office of said court

their certain petition herein: said petition is clothed in the words

and figures following, to wit:

Petition.

¢ fn the United States Cireuit Court for the Southern District

of Ohio, Western Division.

Tie Western SIEMENS-LUNGREN COMPANY, a Corpor tion Create dl)

under the Laws of the State of Hinois , Plaintiff, :

: US, |

Tut Cincinnati StemMens-LUNGREN GAS TLLUMINATING Co., |

a Corporation Created under the Laws of the State of Ohno, |

Defendant. J

Petition.

The plaintif states that it is a corporation du-y create a under the

laws of the State of. Hlinois, doing business in said State, and isa

citizen and resident of the State of Hlinots, and that the defendant

ix a corporation duly created under the laws of the State of Ohio,

and ois a eitizen and reside nt of the State of Ohio in said

southern district. and western division, whose prineipal office

and place of business is in the city of Cineimnati, in said State ; and

for cause of action against the defendant the pli Lintift states—

That said defendant is indebted to the prainielt in the sum of six

thousand nine hundred and twenty-two and 55, dollars ($6,922.64),

—199

2 CINCINNATI SLEMEN NS-LU NGR EN GAS IL LUMINATING CO. VS...

with interest thereon from August Sth, 1SS8S, upon an account for

goods and merechandize sold. and delivered by the plaintiff to the

defendant at the latter's request, an itemized statement of which aec-

count is hereto xunexed, marked Exhibit “A.” and made

3 part hereof; that said account is long past due and wholly

unpaid, although payment thereof has frequently been de-

manded of the defenda ant, but it refused to pay the same.

Wherefore plaintiff prays judgment against said defendant. for

said sum of 86,92: 2.04, with interest thereon from August 8, 1SSS,

and for costs.

KRAMER & KRAMER,

Attorneys for Plaintifis.

STATE OF ONTO,

Hamilton County,

Louis Kramer, being duly sworn, savs that he is the agent and

one of the attorneys for the plaintiff above named, who is a non-

resident of and absent from the State of Olio, and that the facts

stated in the foregoing petition are true, as he believes.

LOUIS KRAMER.

Sworn to before me and subseribed in my presence this 25th day

of February, 18S!

LOWREY JACKSON,

[SEAT ] Notary Public, Hamilton County, Ohio.

10c. due notary.

Endorsed on petition is the following:

To the clerk:

Issue summons as within. Action to recover money. Amount

claimed, $6,922.64, with interest from August 8, ISSS. —

We are security for costs.

| KRAMER & KRAMER,

ltt ys for LT ij.

33 Expire A.

Cincinnati Siemens-Lungren Gas ikenindiing Company bought of

the Western Sieme ns-Lungren Company.

1838.

eune 25. 12 coiling pintes, 27... ......__.. .... -.... a ee |

July 11. Oe NE 0, Fe ii on ee oe es cee 7 38 SS

July 21. 52 16-ft. lamps, Ee 1,066 00

100 fl. plates ,

100 brass burners

204 16-ft. globes

a2 itk. * —

: oO S-ft. olf

Per Wells, Fargo & Co.

{ CR ee Ae wn tee i he GEO 2 one, |

, ‘-

{ Caw > 0 weep SD OER «omen

WESTERN SIEMENS-LUNGREN CO, | 3

1888.

July 24. 45 16-ft. See dlig a SUS4 OU

by Wells, Fargo — . |

ouay Zi. 144 coiling plates, .27 .... .......~... --.. ---- 35 SS

July 50. 40 8-ft. lamps, 17.50 -.------2-------- 0 S75

200 12-ft. amps, 19.00.22. 22.2 -------- 3,800

1675 OO

Atg. —. 432 ceiling plates, .27 .... .-.. --..0- 2+... 116 64

$6,922 64

| And afterwards, to wit, on the same day, there was issued

out of the clerk’s office of said court our certain summons,

directed to the marshal of the district and against the defendant

herein; said summons is in the words and figures following, to wit:

Summons. -

Usirep States or AMEntca,)

Southern District of Ohio, jy

The President of the United States of Ameriea to the marshal «

the southern distriet of Ohio, Greeting :

You are hereby commanded to summon the Cmeinati Siemens-

Lungren Gas Hluminating Company, a corporation created under

the laws of. the State of Olio, citizen of and resident in the State

of Ohio, if it be found in vour district, to be and appear in the eir-

cuit eourt of the United States for the southern distriet of Ohio

aforesaid, at Cincinnati, on the 4th Tuesday in the month of March,

ISS9, to answer unto the Western Stemens-Lungren Company, a

corporation under the laws of the State of [Hlmois, citizen of and

resident in the State of Ilinois, in civil action for money only; and

have you then and there this writ. |

“Witness the Hlon. Melville W. Fuller, Clief Justiee of the United

States, this 25th dav of Feb., A.D. 1SS9, and in the 115th year of

the Independence of the United States of America.

Attest: , Bb. R. COWEN, Clerf.

[SHALL] By ROBE C. GEORGI, Deputy.

indorsed: Moses I. Moch, SCCUPILY for costs. £ Action for the

recovery of money only. Amount claimed, 86,922.64, with int. from

Aug. 8, ISSS, from which judgment may be taken unless it answer

on or bef ore the 4th Tuesday in the. month of March, 18S.

D And afterwards, to wit, on ‘the oth dl av of February, A.

— D. 1889, the following cost bond was filed in the clerk’s office

of said court, clothed in the words and figures following, to wit:

ANDRES AGT RR a RPT 24g Reet Not OMe a ee ee

| CINCINNATI: SIEMENS-LUNGREN GAS TLLUMINATING CO, VS.

Cost Bond.

C ireult ¢ — of the United States for _ Southe rh District of Olio,

— Pivision, :

THe Western iiinin dictates Co. * (inet Bent

Us.

ray = —.

Pun Citi. SrEMENS-LUNGREN Gas ILLUMINATING Co. j

I hereby acknowledge myself security for costs in this case.

MOSES E. MOCHIL [skat.]

Taken and acknowledged before me this 25th day of Feb’y, LSS.

ROBERT GC. GEORGI,

[xEAL ] Deputy Clerk US. Circuit Court, 8. D. O.

SOUTHERN District OF OHT0, 8s

I, Moses EF. Moch, a resident of said district, do solemnly swear

that after paying my just debts and habilities, Dam worth two

thousand dollars in real estate within the jurisdiction of this court

and subject to execution, le vv, and sale.

3 MOSES I. MOCTI.

(5 Sworn to and subseritbed be fore me this 25th day of Feb--

ruaryv, A. D. Iss).

| ROBERT C. GEORGI, :

[SEAL. | Deputy Clerk U.S. Cirenit Court, S. Dd. O.

And afterwards, to wit,on the 2nd day of March, A. D. ISS9,

came the marshal of the district, to.whom the above suminons was

in form directed, and filed in the clerk’s office of said court the same,

with his proceedings had endorsed thereon in words and figures

following, to wit:

Recerved this writ on the 25th a: ay of Febru: ary, A.D. ISSO, and

on the 26th day of February, A. D. ISSO, TF served the within named

the Cincinnati: Siemens-Lungren Gas -luminating Company, a

corporation created under the laws of the State of Olio, by hi: andiige

a true copy thereof, with the endorsements therein, to KE. O. Eshelby,

the president, and to Tlarry G. Skiff, the Secretary, respectively of

said corporation, cach personally.

bees.

2 Copies ........ ie os eS a a es a a

i ek 6 os i OW

? SErVvices __-- A He ela enn ke <see men » cia Gi a L OO

H.C. URNER, Marshal,

By J. KIERSTED, Deputy.

= A dig

—_ —™ -

SATEEN Re a a a OR A

=

WESTERN SIEMENS-LUNGREN CO. f 5

a And afterwards, to wit, on the 9th day of Mav, A. D. 1589,

wn entry Was ma: ade upon the journal of said court, clothed in

the words and figures following, to wit:

Journal Y, p. 520.

Upon application and for good cause shown leave is given to file

answer and cross-petition herein. :

And afterwards, to wit, on the 9th day of May, A.D. 1889, the

following answer and cross-petition was filed in the clerk's office of

suid court, clothed in the words and figures following, to wit:

Answer and Cross-petition.

In the — States Circuit Court for the Southern Distriet of

Ohio, NW. ).

THe Western SIrEMENS—-LUNGREN: COMPANY \

Us,

Tuk CInciNNATL SIEMENS-LUNGREN Gas ILLUMINATING Co. J

Answer and cross-petition.

Defendant, for answer to plammtiff’s petition, admits that it, the

defendant, is a, corporation duly created under the laws of the

State of Olio and is a ettizen and resident of said State, in said

southern district and western division, whose principal office and

place of business is in the city of Cincinnati, in said State; but

defendant avers that it has no knowledge as to the truth or falsity

of plaintiffs allegation that it is a corporation created under the

laws of the State of Hlinois, doing business in said State, and is a

-eltizen and resident the roof, and demands proof thereof.

$&9 Defendant, for a first defense to plaimtifl’s petition, state-

thaton the 9th dav of November, 1587, the Siemens-Luneren

Huminating Company of Chicago, Hs, as party of the first part,

entered Into a written contract, a copy whereof ts hereto attached,

marked “ exhibit AQ with Andrew Pichenlooper, Samuel W. Trost,

J.ALS. Gray, Do. lL. Billinehetmer, Chas. B. Wing, Moses Krolie,

James Allison, Chas. leishman, Fred. TL. Alms, and Ie. O. Eshelby,

as parties of the second part, whereby said party of the first part,

for itself, its syecessors and assiens, for and in consideration of the

sum of one dollar and other valuable considerationsassioned, set

over and conveyed to said parties of the second part the sole and

exclusive right and privilege of selling, placing, and operating

throughout the counties of Hamilton, Butler, and Montgomery, in

the State of Ohio, of all the patented regenerative or other eas

lamps, appiianees, or fixtures which were then or might) thereafter

be made, owned, or controlled by the Siemens-Lungren Company

of Philadelphia, Pa., or its assigns, the Siemens-Lungren Gas Hlumi-

hating Company, the said party of the first part. Said party of the

first part further covenanted that during the entire period covered

G - CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. VS.

by the licenses and patents then owned by the said Siemens-Lungren

Company, or which might thereafter be acquired on tuprovements

and reissues, the said party of the first part would sell exclusively,

to said parties of the sccond part, for use in said counties before

named, all the burners, fixtures, and appliances made by the

Siemens-Lungren Company, and would not knowingly sell or permit

other parties to sell for use in said territory any burners, lumps, or

voods made, owned, or controlled by said Siemens-Lungren Co., but

would, upon the contrary, to the best of their ability, prevent the sale

of any such articles for use within the territory named to any

10 other than the parties of the second part, their successors or

assiens: that said: Siemens-Lungren Gas THluminating Com-

pany agreed to sell to said parties of the second part, thetr-successors

or assigns, the most approved form of regenerative lamp now or

which might thereafter be made by said Siemens- Lungren Company

of Philadelphia, at the prices named in said conyract ; that it would

sell any new sizes or styles of lamps, fixtures, or appliances at the

Sahe proportionate rate of discount from the then or future manu-

tacturer’s list prices, which shall be uniform throughout the United

States, and that in case the Philadelphia company should at any

time in the future make any reduction in the price of goods fur-

nished to or or through the said Siemens-Lungren Gas Hluminating

Company said last nanied company should make a corresponding re-

duction tothe parties of the sccond part. Said goods were to be de-

livered in good order and condition to any designated agent of the

parties of the second part, at said agent's office in Cincinnati, in Lots of

300 or less, within 30 davs after the receipt of such order for delivery.

Said party of the first part guarantecd the life service of any lamps

furnisded to be five vears, exelusive of any globes broken or other

damage done through careless handling, and that it would defray

the expenses of any incidental repairs which may be necessary to

keep said laps in good and serviceable condition during the period

named, Said party of the. first part further agreed to defend said

parties of the sccond part against all alleged infringements of letters

patent eranted to other parties, and to promptly defend the letters

patent held and owned by said Sicmens-Lunere? Company of Phila-

delphia, and to protect said parties of the second part from: tfringe-

ments by other parties, in the exclusive and unresyricted: use

| of the rights, franchises, and privileges conveyed by said con-

tract, provided said first party were duly notified and given

exclusive control of any tigation which may ensue. |

Defendant further states that immediately after the execution of

said agreement the same was assigned by the said party of the

second part to this defendant, and that it has ever since fully per-

formed and kept all the covenants and agreements on its part to be

kept and performed: that one L. J. Wolf, who claims to be the

secretary, and Joseph Wolfawho is the president, of the said party

of the first part, and all the parties interested in and onlollingg said

Siemens-Luneren Gas Hluminating Co, of Chicago claims to have

organized said plaintiff! company and claim that said contract be-

tween the said Siemens-Lungren [luminating Co. of Chicago, Ils.

WESTERN SIEMENS-LUNGREN CO. ‘

and said A. Hickenlooper and others had been assigned to said

plaintifl company, and that it aequired by assignment and other-

wise all the rights of selling the said inventions and patents im

regenerative lamps in the territory named in said agreement, and

suid parties repeatedly attempted to have the defendants enter mto

anew contract with said plaintiff — but which defendant

has refused to do.

Defendant states that all the regene rative I: mnps and fixtures fur-

nished, purchased by it, including those stated in the account sued

upon, In and attached to plamtiff’s petition, have been furnished

to and purchased by it under said contract. Defendant adinits

that it received under said contract the lamps and fixtures

lv and i the quantities as stated mm the account attached to

said petition, but it avers and. charges that the prices stated

therem are largely in excess of the prices whieh it should be charged

under said contract, said Philadelphia company having made a

reduction in the price of such Jamps and fixtures, but the exact

amount of which reduction defendant has not been able to ascer-

tain.

2nd. Defendant, for a second defense, reiterating and reaflirming

all the allegations of its first defense so far as the same is a statement

of the contract and its contents entered into between said Siemens-

Lungren Gas Illuminating Company of Chicago and said A.

Hickenlooper and others and of the assignments thereof, and adopt-

ing the said allegations as a part hereof without repeating the

same, states that a portion of the regenerative lamps furnished to

it under said contract by said Siemens-Lungren [luminatinge Co. of

Chicago are in infringement of the letters patent held, owned, and

controlled by the said Siemens-Lungien Co. of Philadelphia, and

that the said Philadelplia company has instituted its suit against

this defendant in this court in cause No. 4177 on the docket thereof,

alleging that this defendant has infringed said letters patent, ask-

Ing for an injunction to restrain further infringement thereof, for

an account of profits, and for damages, which said suit Is now pend-

ing, and ef the bringing of which said suit the said Siemens-

Lungren Gas Hluminating Covof Chicago was notified Immediately

after the filmmg of the petition therem, and was given exclusive con-

trol thereof for the purpose of defending the same.

Defendants, further answering, deny all the allegations of plain-

uiff’s petition meonsistent with the statements contained in this its

answer.

13 Defendant, by way of cross-petition and for & first cause

of action against plaintiff, reiterates and reaflirms all the

allegations of the first defense of its answer herein xo faras the

same Is a statement of the contract and its contents entered into

between said Stemens-Lungren MHluminating Company of Chicago

and said A. Hickenlooper and others and of the assignments thereof,

and, adopting the said allegations asa part hereof without rep ating

» the same, states that it the said defendant, complied with and ful-

filled all the covenants and agreements contained in said) contract

on its part to be kept and ‘performed, but that notwithstanding the

S CINCINNATI SIEEMENS-LUNGREN GAS ILLUMINATING CO. Vs.

assignment and conveyance In said contract by said Stemens-Lun-

gren Tluminating Company of Chicago’ of the sole and exclusive

right and privilege of selling, placing, and operating throughout

the counties of Hamilton, Butler,and Montgomery, in the State of

Ohio, all the patented regenerative or other gas lanips, applianecs, or

fixtures which mieht then or thereafter be made, owned, or con-

trolled by said Philadelphia Co. or its assigns, and notwithstanding

the covenant of the said’ Siemens-Luneren Tluminating Co. of

Chicago that 1t would, to the best of its ability, prevent the sale of

any such articles for use, tha- said Siemens-Lungren [laminating

Jo. did sell large quantities of the said patented lamps, apphanees,

and fixtures, the exact number of which, however, are not how known

to defendant, in the said counties of Tamilton, Butler, and Mont-

gomery, viz. in the towns of Dayton, Hamilton, and Middletown.

Defendant alleges its damages to be by reason thereof the sum of

six thousand (86,000.00) dollars.

14 2nd. Defendant for a second cause of action against the,

plaintiff, reiterates and reaffirms all the allegations of the

first defense of its answer herein so far as the same is a statement

of the contract and its contents entered into between said Siemens-

Lungren Hluminating Company of Chicago and said A. Hieken-

looper and others and of the assignments thereof, and, adopting the

said allegations as a part hereof, without repeating the same, states

states that i ii, the said defendant, complied with and fulfilled all the

covenants and agreements contained in said contract on its part to

be kept and performed, but that notwithstanding the agreement.

conGained in said contract of the said Siemens-Lungren [himinat-

ing Co. of Chicago that in case the said Philadelphia Co. should

at anv time in the future make any reduction in the price of goods

furnished to defendant through the said Siemens-Lungren Gas Hiu-

minating Company said last-named company shall make a eprre-

“sponding reduction to this defendant. the said Siemens-Luneran

Gas Hluminating Company continued to charge and this defendant

company paid for goods so furnished prices in excess of the amounts

which it should have paid under said contract, no deduction being

made by reason of the reduetion in’ price on sitid cvoods made by

said Philadelphia company to. said Siemens-Lungren Gas ETumi-

nating Co. Defendant alleges that the amount so wrongfully charged

it and which whieh it paid’in excess of the amount which. it should

have becn charged amounts to the sum of twenty-two hundred and

fifty (S2.v -)) doll: irs. |

8rd. Defendant, for a third cause of action against the plaintiff, re-

iterates and reatlirms all the allegations of the first defense of its

answer herein so faras the same isa statement of the con-

15 tract and its contents entered into’ between the fhe said

Siemens-Luneren THlaminatine Co. of Chieawo and said A,

Hickenlooper and others and of the assignments thereof, and, adopt-

ing the said allegations asa part hereof Without repeating the same,

states that it, the said defendant, complied with and fulfilled all the

covenants and agreements contained im said contract on its part to

be kept and pertorme that notwithstanding the agreement |

WESTERN SILEMENS-LUNGREN CO.

contamed insaid contract.of the said Siemens-Lungren Tluminating

“Company of Chicago that it would defray the expenses of any inci-

dental repairs which might be necessary to keep said lamps tn wood

and serviceable condition during the said period of five vears from

the date of said contract, the said Siemens-Lungran [laminating

Co. of Chicago and its assignee, the plamtiff herem, have wholly -

failed to do so. Defendant alleges that it has paid out for such re-

pairs to lamps so purchased by it, including those stated m= the

account attached to petition, to date, the sum of sixteen) hundred

dol-ars ($1,600), no part of which has been repaid to it.

4th. Defendant, for a fourth cause of action agaist the plaimtiff,

reiterates and reaffirms all the allegations of the first defense of its

answer herem so far as the same are a statement of the contract

and its contents entered into between the said) Siemens-Luneren

Hluminating Company of Chicago and said A. Tickenlooper and

and others and of the assignments thereof, and, adopting the said

allegations as a part hereof without repeating the same, states that

it, the said defendant, complied with and fulfilled all the covenants

and agreements contained in said contract on its part to be kept

and performed ; states that notwithstanding the agreement of said

Sicmens-Lungren Iluminating Co. of Chicago to furnish this de-

fendant with the said patented lamps to be furnished to it by the

suid) Philadelphia company and to defend said defendant

16 from any infringements of said. patented lamps, did furnish

to this defendant a large number of lamps purporting to be

said patented lamps furnished by said Philadelphia company, but

which were in fact in infringement thereof and of such poor quality

as to be untit for use. Upon trial of the lamps and the subsequent

discovery of the infringements thereof, defendant was compelled to

retire from use ninety-two lamps thereof which were m use, and

they and those having remained unused became useless and worth-

less property. Defendant paid said Siemens-Lungren Tuminating

Co. of Chicago the sum of two thousand ($2,000) dollars for said

lamps. no part of which has since been paid, and that by reason of

its being compelled to remove the said lamps and the consequent

loss of business it has been damaged in the further sum of one

thousand dollars.

oth. Defendant, for a fifth cause of action against the plaintiff,

reiterates and reaflirms all the allegations of the first defense of its

answer herein so far as the same area statement of the contract

and its contents entered into between the said Siemens-Lungren

Mluminating Company of Chicago and said A. Tiekenlooper and

others and of the assignments thereof, and, adopting the said allega-

tions asa part hereof without repeating the same, states that it, the

said defendant, complied with and fulfilled all the covenants and

agreements contained in said contract on its part to be kept and

performed, but that notwithstanding the agreement contamed in

said contract of the said Siemens-Lungren Illuminating Co. of

Chicago that it would furnish the defendant with the most ap-

proved form of said regenerative lamp then or which might there-

after be made by said Philadelphia company, failed to do so, but

2—10V3 |

>

10. CINCINNATI SIEMENS—-LUNGREN GAS ILLUMINATING CO. V8.

said Siemens-Lungren Hluminating Co. and its assignee, the plain-

tiff herein, sent said defendant company from time to time

17 a large number of old-style lamps, when the Philadelphia

company was manufacturing and selling an improved lamp,

with a “ bve-pass lever: ” that although the said Siemens-Lungren

Iluminating Co. and its assignee, the plaintiff herein, after long

delay, furnished the said improved lamp in exchange for the old,

the damage to the defendant licrein by reason of the cost of chang-

ing the same where in use and the cost of freightage and handling

thereof amounts to the sum of one thousand ($1,000) dollars.

6th. Defendant, for a sixth cause of action against the plaintiff,

reiterates and reatflirms all the allegations of the first defense of its

answer herein so far as the same area statement of the contract and

its contents. entered into between the said Siemens-Lungren Tlumin-

ating Company of Chicago and said A: Hickenlooper and others and

of the assignments thereof, and, adopting the said alle@ations as a

part hereof without repeating the same, states that it, the said defend-

ant, complied with and fulfilled all the covenants and agreements

cont ained in said contract on ‘its part:-to be kept and performed ;

states that notwithstanding the agreement of said Siemens-Lungren

Illuminating Company of Chicago te deliver in good order and con-

dition to any designated agent of defendant, at said agent's office, in

the city of Cincinnati, in lots of 300 or less, within. 30 days after

receipt of such order for delivery, the said’ Siemens-Luiigren Ilu-

minatinf Company of Chicago failed to deliver goods’ so ordered |

wjthin the time stated and for a long period thereafter. causing a

lo ss and damages to this defendant by reason of loss of trade arising

from such failure to deliver within the time specified amounting to

the sum of ten thousand ($10,000) dollars.

18 Wherefore defendant prays judgment against the plaintiff

in the sum of twenty-three thousand eight hundred and fifty

($23,850.00) dollars. :

EDWARD DIENST,

Att'y for Defendant.

STATE OF QOHTO, ) is '

e v > SS “g

Hamilton County, §

Edwin O. Eshelby, being first duly sworn, says that he is the presi-

dent of The Cincinnati Siemens- Lungren Gas Hluminating Company,

the defendant in the above-entitled action, and that the allegations

contained in the foregoing, its Answer and cross-petition, are true

as he verily believes. 1

EDWIN ©. ESHELBY.

Sworn to before me and subscribed -in my presence this 9th day

of May, A. D. 1Ss9 |

W P. WILTSEER,

[SEAL] Notary Public, Hamilton Gounty, Ohio.

goof ts LEU tee Cre So ae Ne eee ee ee

Ge et on ge OME ae 4 ,

ONE a CP an ES LIS APNE Se APR NE DINO ape

WESTERN SIEMENS-LUNGREN CO. 11

19. Eximipir uA.

Whereas the Siemens-Luneren Gas Illuminating Company of

Chicago, Hs. has acquired certain valuable rights, franchises and

privileges from the Siemens-Lungren Comipany a corporation of the

State of Penn, viz: The exclusive privilege of selling, placing and

operating the patented and other manufactured articles and applhi-

ances of the said company throughout the State of Ohio by an agree-

ment entered into by and between said Siemens-Lungren Co. and

one Joseph Wolf, on the 22nd day of April 1887, and by said Wolf

subsequently assigned to © The Siemens-Lungren [luninating Com-

pany of Chicago, Ils. and

Whereas said last-named corporation is now desirous of convey-

ing to other parties the rights, franchises and privileges acquired by

it so far as the same applies to the counties of Hamilton, Butler and

Montgomery in the State of Ohio now therefore.

This contract entered into this 9th day of November, 1887, by

and between the Siemens-Lungren Tluminating Company of

Chicagd, Hs. party of the first part, and A. Hickenlooper, Samuel

W. Trost, J. ALS. Gray, D. iL. Billinghemer, Chas. B. Wing, Moses

Krohn, James Allison, Chas. Fleischmann, fred. TH. Alms and FE.

Q. Eshelby, parties of the second part, witnesseth :

lirst. hat said Siemens-Lungren Gas Tluminating Co. for them-

selves their successors and assigns for and in consideration of the

sum of one dollar and other valuable considerations the reeeipt of

Which is hereby acknowledged do hereby assign, set over and con-

vey to said parties of the second part the sole and exelusive right

and privilege of selling, placing and operating throughout the

eounties of Hamilton, Butler, and Montgomery, State of Ohio,

20) all the patented regenerative or other gas lamps, appliances,

| or fixtures, Which are now, or may hereafter, be made, owned

or controlled by the said Siemens-Lungren Company, or its assigns,

the Siemens Gas Tuminating Company.

That during the entire period covered by the licenses and patents

now owned by the said Siemens-Lungren Company, or which may

hereafter be acquired on improvements and reissues, the said

Siemens-Lungren Gas THluminating Company will sell exclusively

to said parties of the second part for use in the counties before

named all the burners, fixtures and appliances, made by said

Siemens-Lungren Company and will not knowingly sell or permit

other parties to sell for use in said territory any burners, lamps, or

egods made, owried or controlled by said Siemens-Lungren Co. but

will upon the contrary to the best of their ability prevent the sale of

any such articles for use within the territory named to any other

than the parties of the second part thear successors OF assigns.

That said Siemens-Lungren Gas Hluminating Company will sell

to said parties of the second part, their successors or assizus the most

approved form: of regenerative lanips now, or Which may hereafter

be, made by said Siemens-Lungren Company at the following prices

for the first one thousand lamps ordered 8-ft. lamp $17.00; 12-ft.

sis

- SOC aR ET a =

|

:

EERE

12 CINCINNATI SIEMENS—-LUNGREN GAS ILLUMINATING CO. VS,

lamp $1900 and 16-ft. lamp $20.50, with two extra glass globes for

each lamp, and that for all lamps ordered in excess of the first one

thousand the price is to be for S-it. lamps 816.50 for 12-ft. lamps

$18.00 and) 16-ft. lamps $19.50 with freight added, and that they

will sell any new sizes or stvles of lamps, fixtures or appliances at

the same proportionate rate of discount from: present or future manu-

faeturers’ lists prices which shall be uniform throughout the United

States and in case the Siemens-Lungren Co. shall at any time in

the future make any reduction in the price of goods furnished

21 to or through the Siemens-Lungren Gas Tlmimating Com-

pany the last-named company shall make a corresponding

reduction to the parties of the second part. :

The said goods to be delivered in @ood order and condition to any

designated agent of the parties of the second part at said agent's:

oflice in the city of Cincinnati in lots of 300 or less within 30 days

after receipt of such order for delivery. That the said Siemens-

Lungren Gras Illuminating Company guarantees the lite service of

anv lamps furnished to be five (5) years, exclusive of any globes

broken or other damage done through careless handling and that

it will defray the expenses of any Incidental repairs which which may

be necessary to keep said lamps in good and serviceable condition

during the period named. And that upon the expiration of said

period of five years they will if the parties of the second part so

desire guarantee that the said lamps will be guaranteed for an addi-

tional period of five vears upon being paid the additional sum of

three (3) dollars for each lamp thus guaranteed.

— That the said Siemens-Lungren Gas [luminating Company will

defend the parties of the second part against all alleged infringe-

ments of letters patent granted to other parties and will promptly

defend the letter- patent held and owned by said Siemens-Lungren

Company and protect the parties of the second part from infringe-

ment by other parties, in the exclusive and. unrestrained use of the

rights, franchises and privileges hereby conveyed providing they are

duly notified and given exclusive control of any litigation which

nay ensue.

That the said Siemens-Lungren Gas Mluminating Co. as a part of

_ the agreement will give to said parties of the secorid part a good and

sufficient bond im the sum of five thousand (85,000) dollars eondi-

tioned upon the prompt and faithful execution of all the conditions

imposed by the terms of this agreement.

4 Seeond. That the parties of the second part, their succes-

sors and assigns will within ten days after the formal execu-

tion of this contract pay to the recognized agent of the Sicmens-

Lungren Gas Tluminating Company the consideration set forth in

this contract and called for by the proposition heretofore made, by

L. J. Wolf, see’ty under date of November 7, 1887. ?

That they will exercise all due and proper diligence and enerey

in securing the introduction of the lamps, burners and appliances

of said Siemens-Lungren Co. into public use in the territory

named, preference however to be first given to their introduction in

the county of Hamilton, and

are <

that for all lamps ordered they will pay

WESTERN SIEMENS-LUNGREN CO. | 13

according to the rates hereinbefore mentioned in cash upon the

lOth day of each month for all goods delivered during the pre-

eceding month, and in the event of their failure so to do the

Siemens-Lungren Gas [Hluminating Company shall have the right

to solicit purel: ses and fill orders with- the territory hereby covered.

In witness whereof, the said Siemens-Lungren Gas Hldaminating

Companyv—-by its secretary LL. J. Wolf, who is hereby fully author-

ized by power of attorney. to execute the same on behalf of the

president of said company—atlixes his signature and the seal of

suid company this 9th day of November 1887, and the parties of

the second part, each for himself signs the same and attaches his

seal thereto.

L. J. WOLF, See’ y.

JOSEPH WOLF, Pres’t.

A. HICK ENLOOPER.

kk. O. ESHELBY. —

D. L. BILLINGHEIMER.

SAIMP?L W. TROST.

M. KROHN.

CHAS. FLEISCHMANN.

J.ALS. GRAY.

JAMES ALLISON.

FRED. TH. ALMS.

C. Bb. WING.

2°) And afterwards, to wit,en the 7th day of June, A.D. 1889,

the following demurrer was filed in the clerk’s office of said

court, clothed in the words and figures following, to wit:

Demurrer.

In the United States Cireuit Court for the Southern District of

Ohio, Western Division.

Tire WESTERN SIEMENS-LUNGREN ae OMPANY |

US, * is

— . e No. 1226. Demurrer.

Tk CIinxncinNatEe SPEMENS-LUNGREN GaAs {

ILLUMINATING Co. a }

And now comes the plaintiff and demurs to the second defense in

the answer of the defendant herein for the reason that said seeond de-

fense does not state facts sufficient to constitute a defense.

And plaintiff also demurs to the fifth cause of acdion, by way of

cross-petition In ‘sad answer, for the reason that said fifth cause of

action does not state facts suflie dent to constitute a c use of action

against plant

By KRAMER AND KRAMER,

Attorneys for Plaintiff

And a to wit, on the 7th day of June, A. D. 1889, the

following reply was filed in the clerk’s office of sitid court, clothed

in the words and figures following, to wit:

?

;

i

4

}

2

}

14. CINCINNATI SIEMENS-LUNGREN GAS ELLUMINATING CO. VS.

24 | Beeply.

In the Circuit Court of the United States for the Southern District

of Ohio, W estern Division.

The Western SLE one 2 UNGREN CoMPANY ;

US. :

‘ 4 : > No. 1226.

Tht CINcINNATL SLEMENS-LUNGREN GAS ILLUMINATING

COMPANY.

And now comes the plamtif and, for reply to the first defense,

admits that on or about November Oth, 1887, the Sieme ns-Lungren

Illuminating Co. of Chicsgo, Hlinois, entered into a written con-

tract with Andrew Hickenlooper and others, as stated in said

answer, Which said contract was after wards assigned by said

Siemens-Lungren [luminating Co. to the plaintiff “and was also

assigned by said Andrew: Hickenlooper and others to the défend-

ants, and that a copy of said contract Is attached to the said answer,

marked Exhibit “A.”

Plaintiff denies each and every other allegations in said: first

defense Searemnbinaeh sectthh the petition herein and not herein specifi-

cally admitted.

2. For reply to the first cause of action, by way of cross-petition

in said answer, plaintiff denies cach and every allegation therein

contained,

3. For reply to the second cause of action, by way of cross-

petition in said answer, plaintiff denies each and ev ery alleeation

in the same contained.

4. For repiy to the third cause of action, by way of cross

25 cross-petition In said answer, plaintiff denies each and every

allegation therein contained.

ror reply to the fourth cause of action, by way of cross-

petition In said answer, platnti? denies each and every allegation

in the same contained,

6. For reply to the 6th cause of action, by way of cross-petition

in said answer, platmtiF denies each and every allegation in the

same contamied.

Wherefore plaintuf prays as in the petition.

KRAMER & KRAMER,

e attorneys for Plaintiff.

STATE OF OJTTO, =

Hamilton ( ‘ounty, “Ge

Louts Kramer makes oath and says that he is one of the attor-

nevs for the plaimtiff above named, The Western Siemens-Lungren

Company, which is a non-resident of and absent from the State of

Ohio, and that the facts contained in the foregoing reply are true,

as he believes. LOUIS KRAMER.

Sworn to before me and subscribed in my presence this 6th day

of June, 18589 : a :

| LOWREY JACKSON,

40c. due notary. : Aa co Public, Ham. County, Ohio.

ja IES Baas i oe DG oni ALAN Nhe MR BS a oat a

Fg ee: PRS EERE ae a ee my. = Chis ae RS ie

Fe RT Le RT Aa me oe %

a.

WESTERN SIEMENS-LUNGREN CO. 15

26 And afterwards, to wit, on the 14th day of January, A. D.

1890, an entry was made upon the journal of said court,

clothed in the words and figures following, to wit:

Journal Y, p. 351.

Comes the plaintiff we by leave of court first had ‘oud oleadael

withdraws its demurrer heretofore filed to the second defense in the

answer of. the defendant contained, and also to the fifth cause of

action In the cross-petition of the defendant contained, and by like

leave of court files its reply to said second defense and fifth cause

of action, all of which is accordingly done.

And afterwards, to wit, on the same day, there was filed in the

clerk’s office of said court the following reply ; said reply is in the

words and figures following, to wit:

Reply.

In the Cireuit Court of the U.S. forthe Southern Dist of Ohio,

Western Division.

US.

The CINcinnatrt SrEMENS-LUNGREN i ILLUMINAT-

ING Co. |

THe WESTERN SIEMENS-LUNGREN CoMPANY t

3

Reply to second defense and fifth cause of action.

Comes the plaintiff and, for reply to the second defense in the

answer of defendant, denies each and every allegation therein con-

tained.

20 And, for reply to the fifth cause of action in the cross cross-

petition of defendant, plaintiff denies each and every allega-

tion therein contained. | -

Wherefore plaintiff prays as in the petition.

7 KRAMER & KRAMER,

Attorneys for the Plaintiff.

STATE OF ONTO, a

Hamilton County, J”

Louis Kramer makes oath and says that he is one of the attorneys

for the plaintiff above named, which is a non- resident of and absent

from the State of Ohio, and that the facts cont ained in the foregoing

reply are true,.as he believes.

LOUIS KRAMER.

Sworn to before me and subscribed in my presence this — day of

January, 1890.

| LOWREY JACKSON,

Notary Public, Hamilton County, Ohio. [sear]

40c. due notary.

14 CINCINNATI: SIEMENS-LUNGREN GAS ILLUMINATING CO. VS.

And afterwards, to wit, on the 14 of Jan., A. D. 1890, an entry

was made upon the journal of said court, clothed in the words and

fieures following, to wit: |

Journal Y, p. 552.

Comes the plaintiffand, by leave of court first — & obtained, with-

draws its demurrer heretofore tiled to second defense in the answer of

defendant contained, & also to the 5th cause of action in the X-peti-

tion of the defendant contained, & by like leave of court files its reply

to said 2nd defense & Sth cause of action, all of which is aceord-

ingly done. |

And afterwards, to wit, on the 7th dav of February, A.D, 1890,

the following amendment to petition was filed mn the clerk's office of

sald court, clothed in the cats and figures followimeg, to wit:

Amendment to Petition.

In the United States Circuit Court of the Southern District of Ohio,

W. D.

28 Tie CIncINNATI SIEMENS-LUNGREN Company, Plaintiff, )

‘ Us, !

Tne Cincinnati SPEMENS-LUNGREN GaAs [TLLUMINATING COMPANY, .

Defendant. |

Amendment to cross-petition.

Now comes defendant in above-entitled action and, leave of court

being first obtained, files this its amendment to its cross-petition by

adding thereto as a 7th-cause of action the following :

Defendant reiterates and reaffirms all the allegations of the first

defense of its answer herein so far as the the same is a statement of

the contract and its contents entered into. between said Siemens-

Lungren Iuminating Company of Clicago and said A. Hicken-

looper and others and of the assignments thereof, and, adopting the -

said allegations as a. part hereof without repeating the same, states:

that it, the said defendant, complied with and fulfilled all the cov-

enants and agreements contained in said contract on its part to be

kept and performed, but that notwithstanding the agreement con-

tained in said contract of the said Siemens-Lungren Hluminating

Company of Chicago that it would furnish the defendant with the

most approved form of said regenerative lamp then or which might

thereafter be made by said Philadelphia company, failed to do so,

but furnished it with the 250 lamps sued upon in plaintiff's account,

suid lamps having solid metal burners instead of tube burners, the

solid metal burners rendering imperfect service. Said plaintiff has

refused and failed to exchange the said 250 lamps for others with

the tube burners, and that by reason of such failure defendant will

pee Ss au " ”

SR Me oer ada PODER SR a

ke ot) A et Fe a Ebony Se aN She ge Ay

Sa aly e E ee i ae ¥

WESTERN SIEMENS-LUNGREN CO. 17

. be eompelled to make such exchange with the parent or

29 Philadelphia company, at an additional cost of at an addi-

tional cost to this defendant and to its damage in the sum of

seven hundred and fifty (8750.00) dollars.

Wherefore defendant prays. judgement against the plaintiff as in

its original cross-petition and this its amendment. thereto, in the

sum of $24,600.00 dollars.

EDWIN DIENST,

Att'y for Defendant.

STATE OF O1rro, |. :

Hamilton, a

Edwin O. Eshelby, being first duly sworn, says that he is the

president of the defendant in the above-entitled action, and that the

allegations contained in the foregoing amendme nt to its cross-peti-

tion are true, as he verily believes.

EDWIN 0. HSEELSY.

Sworn to before me and subseribed in my presence this 7th day

of February, A. » 1890.

: ROBT C. GEORGI,

[st AL.] Deputy Clerk UL 8S. Cir, C't, S. D. O.

And afterwards, to wit, on the 6th day of Feb. A. D. 1890, an

entry was made upon the Journal of said court, clothed in the words

and figures following, to wit :

Journal Y, p. 576.

This day came the parties, by their attorneys, and thereupon, to

try the issues joined, a jury being called, eame, to wit:

“Albert Ankeney, FE. A. Bell, D. W. Miller, Geo. R. Mitchell, Max-

well E. Morgan, Thomas A. Simpson, William Yingling, John Mul-

lane, Clav C. Runyan, J. M. McCullough, Clarence Gilmore,

ol) and John IL. Watson, who were duly empaneled and sworn

well and truly to try the issues joined, and, the hour of ad-

" journment having arrived and the evidence not — concluded, the

eourt respited the jurv until Monday morning next, at ten o’cloc k,

to whieh time this cause Is continued. .

And afterwards, to wit, on the 10th day of February, A.D. 1890,

an entry was made ‘upon the journal of said court, clothed in- the

words .and figures following, to wit: '

Journal Y, p. a7.

This day again came the parties, by their attorneys, and also the

jurors heretofore empancled and sworn herein, and, having heard

the evidence, the arguments of counsel, and the charge of the court,

retired to their rooms to deliberate upon a verdict, attended by an

officer of this court.

3—193

18 CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. VS.

And afterwards, to wit, on the 10th day of Feb., A. D. 1890, an

entry was made upon the journal of said court, clothed in the words.

and figures following, to wit:

Journal Y, p. 578.

This day again came the parties, by their attorneys, and also the

jury heretofore empaneled and sworn herein, who upon their oaths

do find the issues joined in favor of plaintiff, and assess its damages |

at fiftv-seven hundred and fifty-two dollars and thirty-four cents |

($5,752.34). 4

(Question tothe jury. If you make an allowance to the defendant for

repairs, state In answer to this question the date and amount. of

each item allowed.

31 1888. 2 . |

April 6 ....- 5 SESE RA OIEE SSS eo $24 00 f

Aug. | ETRE ES SDI SC RI ES 2B STE cee ne ee 4 1H |

a a 5 To

Tt. Ceticeennsh en ded Meee cnn we 12 14 eee.

1889. | poe :

Diitc tdi «90 :

ee Ni ede eas amé-,- ila ake een 712

EE ES OE ee /~s

EE: Ee Ta enero re mane ae .

EE PRES HEN SERRE RD Ee ene oR Arne intern eT mre 24 4s

Ce . 605 |

Re ieciniee e n k ie sewn 62 00

Oct. Seer ie a a i ks 2 =

Oi ‘die skied in eink Geis a1 1...

SE SR TN os sical y 02 |

i S1 44

i a ee 4 00

| 1890. oe

; 6g eee oid Nik ha ae nen ET 20) 90

$483 69

Labor from Aug. 18, 1888, to January 17, 1890__---_ -_-- 2o2 Sb

$736 5a

And afterwards, to wit, on the 13th day of F ebruary, A. D. 1890,

the following motion wiis filed in the clerk’s oftice of said court,

elothed in the words and figures following, to wit:

WESTERN CO.

SIEMENS-LUNGREN

Mot (on.

o2 Circuit Court of U.S., dentine Dist. of Ohio, W. D.

THe WEsTeRN SIEMENS-LUNGREN Co. )

“é Ture Cin’ti SIEME ke NGREN (Gu InLvu. Co. f

Motion for a new trial.

Now comes the defendant and moves the court to set aside the

‘ verdict and for a new trial for the reasons following: —

1. Error in the assessment-of the amount of recovery, because the

same 1s too large.

. 2, Because the verdict is not sust: ained by sufficient evidence and

‘ is contrary to law.

| : 3rd. Error of law occurring at the trial and excepted to by the

'

party making the applic ation. |

EDWARD DIENST,

tly for Def't.

!

}

And afterwards, to wit, on the 15th day of February, A. D. 1890,

dep an entry was mé ade upon the journal of said court, clothed in the

: words and figures following, to wit : |

Journal Y, p. 584.

This cause coming on to be heard on defendant’s motion to set i

aside the verdict and for a new trial, aud the court being of opimion

that the damages assessed by the jury are excessive to the amount

of one hundred and twenty-seven °°, dollars (127.90), the court

orders that unless the plaintiff will remit from the said verdict

the said sum of one hundred and twenty-seven 7°y'5 dollars

Oo a new trial be granted, but that upon said re mittitur being

made the said motion be overruled.

And thereupon comes the said plaintiff and in open court con-

sents to said remiuttitur,

It is therefore considered and adjudged by the court that the said

motion to set aside the verdict and for a new trial be, and the same

hereby is, overruled, and that the plaintiff recover from the said de-

fondant the sum of six thousand one hundred and thirty-eight 437,

dollars ($6,138.32), being the amount of said verdict and interest,

less the amount of remittitur, with interest from the fourth day of

Feb., 1590, and the costs herein, taxed at $ - to all of which the

defendant excepts. |

91) CINCINNATI STEMENS—-LUNGREN FAK TILUMINATISG COL YS.

And afterwards, to wit, on the 25th day of Feb. A.D. ESoe, the

followine supersedes Lresticl Wiis filed in thie Clerks office of “aid

court, clothed in the words and figures following, to wit:

Nip reed ({~X Bond.

Cireuit Court of the United States, Southern District of Olio,

Western Division, SSC >

The Western SreMiens-LUNGREN COMPANY. 7 )

rN,

The CINCINNATI SPEMENS-LUNGREN Gras PLLUMINATING Co.

Know all men by these presents that we, The Cinetmmnath Stemetis-

Luneren Cras Llutiinating ('O.. as principal, ane Edwin 0.’

3 shelby and George DB. hkerper, as sureties, are held and

firmly bound unto the Western Stemens-Lungren Company

in the sum of twelve thousand and tive hundred dollars, to be patd

to the said The Western Sicmens-Lungren Company, its successors

orassivens:; to whieh payment, well and truly to be made, we bind

ourselves and eaeh of us. jotuthy and severally, and our and each of

our heirs, exeentors, and adtaitnistrators, firmly by these presents.

Sealed with onr seals. Dated this 25th day of February, LSv0.

Whereas the above named The Cinetnnati Stemens-Lungren Gas

Hhiminating Co. has taken outa writ of error to the Supreme Court

of the United States of Atierica to reverse the judgment rendered

In the above-entitled aetion bv the cirenit court of the United States

for the southern distrmet of Olito: : .

Now, therefore, the eondition of this obleation is such that if the

above named Phe Cinetinath Stemens-Lungren Gas Tluminating

Co, shall prosecute its satd writ of error to effect and answer all

damages and costs if it shall fail to make good tts plea, then this

obligation to be void: otherwise to remata in full foree and virtue.

Tike CINCINNA TE SEE MENS-LUNGKREN

GAS [,.LUMINAPTING CO.,

by E 0. ESHELARY, Pres't. [smear |

RDWIN O. ESHELBY. | Ase.

ChORGE BB. KRERPER. | [SEAL.

sented ane delivered a7 presence of—

1. 0. RGAE Y.

SM. LAVIN. ©

The above SCOUPIEYV Is approved,

| ; GhO. Ro SAGE,

["istriet Sridye of the United States, NS, /). Oh WO.

-b) SeuTHERN Disrerer OF Oto, ss:

[, Rdsvin ©. Eshelby, one of the above sureties. above tamed, do

solemnly swear that after paying my just debts and liabilities [am

> >

WESTERN STEMENS-LUNGREN CO. 21

worth twenty thousand dollars in real estate im my own name

situate in the COUMEN of TLlamulton. in said: district.

EDWIN ©. ESITELBY.

Sworn to before me the 26th dav of Feb., 1S90.

ROBT C. GkORGHI,

Deputy Clak US. Circuit Comrt, SD OL [Stan]

SOUTHERN District OF OHO, sso |

I, Georee I}. Kerper, one of the sureties above named, do solemniy

swear that after paving my just debts and Labilities Tam worth

twenty thousand dollars ta real estate In my ewn name situate In

the county of Ilamuilton, in said district.

GhORGE B. KRERPER.

Sworn to before me the 25th dav of February, PSO.

ROBT C. GEORGI,

Deputy Cloak US. Crreart Court, SD. O. [SEAL. |

And afterwards, to wit. on the 3lst dav of March. A.D. 1890. an

entry was made upon the journal of said ¢ court. clothed in the words

and figures following, to wit: |

Journal Z, p. 4.

230) This day came the parties. bv their counsel. and it being

shown that for reasons satisfactory to the court: the defend-

ants bill of exceptions herem cannot be completed so as be stened,

sealed, and allowed at the present term, being the trial term of the

court, it is hereby ordered, in accordance with the practice of this

court, that the defendant be, and it is hereby. granted tive dave from

and after this the last day of February term of this court within

which time to complete the preparation of its said bill.

And afterwards, to wit.on the Ist dav of April. A.D. PS9a, an

entry was made upon the Journal of said court, clothed in the words

ane figures following, to wit:

Journal Z, p.s

Now comes the defendant, The Cincinnati Siemens-Lungren Gas

Hluminating Company, and presents to the court its bill of execep-

tions in this case and prays that the same may be allowed, signed,

scaled, and made part of the record herein, and the eouri, finding

that the said bill of exce ptions is true and correct, does allow, SION,

and seal the same and order the same to be filed and made part of

the record, it being now allowed, signed, sealed. and filed at the

April term, 1S90, of this court, atin ea with the order of this

court made at the February term of 1890 thereof—that is to sav, at

the trial term—and the court allows a writ of error to the Supreme

Court, with a stay of execution, a supersedeas bond in the sum of

$12,500.00, with good and suflicient securities, having been viven

and heretofore approved by the court herem.

ze CINCINNATI SEEMENS-LUNGREN GAS ILLUMINATING CO. VS.

Od And afterwards, to,wit, on the Ist day of April, A. D. 1890,

the following bill of exceptions was filed in the.clerk’s oflice

of said court, clothed in the words and ligures following, to wit:

Bill of Except LONS.

United States Circuit Court, Southern District of Ohio, W estern

Division. -

Tae Western Sremexs-LUNGREN Comp ANY, Plaintiff, |

vs. L

THe CINCINNATI SIEME Ns-L NGREN ws ILLUMINATING | No.

Company, Defendant.

No. 4226

ow a Vo

Bill of exceptions.

be it remembered that on the trial of this action at the February

term, 1890, of the United States cireuit court for the southern district

of Ohio, western division—Hon. George It. Sage, Judge, presiding—the

plaintiff, to maintain the Issue on its part, ‘offered and read in evi-

dence the depositions of Leopold J. Wolf and Joseph Wolf, together

with the exhibits thereto attached; which depositions and exhibits

are hereto attached, marked Exhibit “A,” and made part hereof;

and thereupon plaintiff rested.

The defendant, to maintain the issue on its part, offered and read

in evidence the (lepositions of Emanuel Stein and Henry A. Brog-

nard, together with the exhibits thereto attached ; which depositions ot

and exhibits are hereto attached marked Exhibit “ B,” and

oS made part hereof.

And the defendant, further to maintain the issue on its

part, called as a witness G. N. Clapp, who, being first duly sworn,

testified as follows :

United States Circuit Court, Southern District of Ohio, Western

~ Divisron.

THE Wi ESTERN SIEMENS-LUNGREN Co. | ‘)

rq. ‘ 4 oo ee J No. 4226.

Pie CINCINNATI: SIEMENS-LUNGREN GaAs ILLUMINAT- |

ING Co.

Testimony on Behalf of Defendant. : —

Witnesses.

G. N. Clapp, direct examination -....-22 ..-------------- Page 1

William Smith, direct examination .22... 22-22-22 e ee ‘ s

C “ CTOSE-ORAUMUNALION <n. eee nececnvcne “ Jl

. eg . WO a gg, arene “O65

Edwin ©. Eshelby, direct examination -....2-- --_-- Hera

vs “ cross-examnation ..-. 2... .--- ~----- “ 35

23 . redirect | “ i ee

WESTERN SIEMENS—-LUNGREN: CO. 23

39 United States Circuit C ourt, Southern District of Ohio, West-

ern Division.

Tire WESTERN SIEMENS-LUNGREN Co. oa

4 Ss. { aa os

; had ay D4)

N ‘ ; Aa ». . Zt °

THE CIncrnnatt SIEMENS-LUNGREN GaAs ILLUMINAT- { No. 4226

ING Co. ae J

FRIDAY AFTERNOON, February Tth, 1890.

Testimony on Behalf of the Defendant.

GN. Crarr, being first duly sworn, testifies as follows :

Direct examination.

Mr. Dienst:

Q. I will ask you to state your name, age, residence, and oecupa-

tion, Mr. Clapp.

A. GN. Clapp; president and secretary of the Middletown Gas Co.

Q). [ willask you to state whether your company has been en-

gaged in the purchase and rental—purchase for sale and rental—of

the Siemens-Lungren lamp of the Chicago company.

(). Now, Mr. Clapp, you are acquainted with the Siemens-Lun-

eren lamp that is protected by the patent of the Philadelphia

company.

_A. Yes, sir; Iam familiar with the lamp of that name.

(J. Now, you can state as te whether vour company purchased

any lamps protected by that patent; and, if so, the amounts, dates,

and trom whom. . : ,

A. I would have to have my books for that.

(). Will vou kindly take your books, refer to them, and

answer? |

AQ A. Yes, sir; November 11, 1SS7, we purchased two lamps

of the Siemens-Lungren Co. of Chicago: Dee. 12th, we pur-

chased two lamps of the same company; January 16,1888, we pur-

chased two lamps of the same company ; January 28, ISSS, we pur-

chased three lamps of the same company ; that 1s all the lamps we

purchased of the Chicago company. Ino November, 1885S, we pur-

chased eight lamps of the Philadelphia company. ,

Mr. ian ;

Q). That is after this suit was brought? That is Nov., 1889, isn’t

it? :

A. No, sir; that was in ’8S. December, 1888, we purchased 24

lamps of the Baye erie gory company; August, 1889, we purchased

53 lamps; Sept., 1889, 24; and December, 1889, 4 lamps: that is

all.

a ke gt

24 CINCINNATE SPEEMENS—-LUNGREN GAS TLLUMINATING CO. Ys.

Counsel for plaintiff! object’ to the foregoing answer and move

threat it be stric ‘ken out.

Motion overruled and testimony tllowed to go mm, subjeet to ex-

CC potion.

Mr. Dienst:

(). What is the total’?

A. That is 122 lamps altagether.

No cross-eX ini nation.

41 WinniaM Surru, called on behalf of defendant, being first

duly sworn, testifies as follows :

Direct examination.

Mr. Ditnsr:

Q). Mr. Smith, please state your full name, age, residenée, and

oecupation. : |

A. Williaa Smith - ed: Newport, Nv. : ous-fitter.

(QJ. [In whose employ are vou, Mr. Smith, and for how long have

you been in such employ ?

A. Lam in the emp lov of the Stemens-Luneren is [lluminat-

ine Co. of Cincinnati, and have been in their employ since last :

October a Vvear ago. :

~~ Q. State what vour duties are there. ibn

A. My duties are to put up lamps, take dows lamps, put lamps in 4

repair, and clean them. : '

Q. Twill ask vou to state, Mr. Smith, whether ornot vou know :

of a lot of ninety-two lamps which were sent by the Stemens-

Luneren Company ot ChHiengwo to the Cincinnati COMpAnyY. |

Q). Twill ask vou, Mr Smith. it vou know of a lot of ninety-two

lamps bye] tng now ordered with is Sicmmens-Lungren Company of -

this city 3

A. Yes, at cr one that was sent back to Philadelphia.

Q). Did vou see any of the lanmips in use?

A. Yes,sir: To oput. them up and took them down again-—re-

placed them with better lamps. |

L2 Q). State to the court and’ jury what the character of thre

lamp was, What the action of the Tami was, how It seted

When burning, and all about ite. cf »=

A. Well, it was not made ike the other lamp; there was an at

passage Init that made the lamp fheker and smoke, and people

would not have them, so we had to take them down and replace

them with better leuraps.

Q. What was the ditference between this lamp and the kump with

whien vou replaced them: ?:

A. These lamps had an air passage here that caused the lamp to

smoke and blacken, and ‘the ght was so unsteady, and this would

blacken up so and the Heht would go out, that the people would not

have them and we had to take them down.

a

ee

2s @

wy

Q. You responded to the complaimts when made?

A. I did; ves, sir.

Q. And you made a pe sonal Inspection of these lamps whenever

complaint was made; did vou? |

A. Yes, sir; [ did.

QJ. Do you know in how m: mV Tnstances you took out lamps o

this kind?

A. No, sir; but it kept me going right along from the start after

after we put them up.

Q. Can you give the names of any of the parties where you re-

moved these amps that you say gave dissatisfaction ?

A. Well, the names of all of them will appear on the books.

(). Ilav- n't you a memorandum. with you of names that vou

dictated, giving the names of. some of them ?

A. Yes, sir; [ dictated these to Mr. Eshelby.

(2. I will ask you to identify that lst. Is that the list ?

(List handed witness.

A. Yes, sir.

(). Now, Mr. Smith, read the list, please, tothe jury.

A. J.S. Bertoli, 67 Walnut street; he had two lamps and we

had to take them out because they smoked.

Q). This same lamp?

A. Yes, sir; we have them in the shop now. We took those two

lamps down and put up two other lamps. William Bochm, 705

EIm street ;" his lamp smoked, and we had to take it down and put

up another.

Q. You put up one of the other construction ?

A. Yes, sir; L. KE. Eisenschmidt, York and Madison streets; he

was so dissatistied with the lamp tliat we had to take it out and he

would not try the other lamp.

(). So he has never had a lamp since?

A. No, sir; Adolph Engler, 75 York St., Newport.

(). Never mind those from Newport.

A. John’ Roeslein, Pearl and Ludlow streets; he lad two lamps,

and the ‘vy smoked and we had to take them out. J.B. Du Case, 121

York street. Barnet Poppe, 444 Colerain avenue; he wouldn't have

ho hump put in; we had to take his out, and then he wouldn't have

no lamp inits place. [t smoked so bad, he wouldn't have no other.

IH. Hock ; he wouldn't have no other lamp in place of the one we

took out. C. Sholhamer, 407 Walnut St.; he wouidn’t have the

lamp. [Et smoked up his ceiling and he wouldi’t have the lamp.

Louis Alin, 56 12th St. It smoked, and we had to take it

d4&45 out. A. Warren. 278 West 6th St. It smoked and did

not give satisfaction, and he would not have it, so we had

to take it out. FL Schneider, 646 Race street: we had to. take his

lampout. Neither of those parties would have another lamp put up.

(). Now, Mr. Smith, in each of these instances [ understand you

to say thi at it was one ‘of these ninety-two lamps that gave the dis-

satist: iction ?

3—1Y0

WESTERN SIEMENS—-LUNGREN CO. | a

ee

26 CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. Vs.

A. Yes, sir; in the meantime we didn’t have anv. twelve-foot

lamps and we had to put these ~ It was during Christmas week

and we were very busy and had a, good many calls for lamps and

we didn't have any of the 12-foot lamps, so we had to put these.up,

and thought they would do until we got the others, but the parties

wouldn't have them. They smoked the globes and the- smoked up

the ceilings and flickered, and they had to be taken out. _

(2. Were there any other lamps in-use out of that lot of ninety-

two other than those you have testified about ?

A. Yes, sir; but I could not dictate them now.

Q. Are they still there—still in use ?

A. No, sir; we had to’ take them out when we got the new 12-

foot in. :

QJ. | will ask vou to state whether or not your removals were

made without complaint. : :

A. They were made with complaint. We teld them to keep the

lamp until we would get our other 12-foot ine It was daring

Christmas week and the people wanted the lamps, but they gave

so much dissatisfaction that we had to take them out as soon as we

could. |

AG (Q). You may state whether or not, after you had retired

the lamps from use,'there was any time when you tried to

make use of them.

A. Yes, sir; T have fixed them up and plastered them up and

done all [ could to make them work right, because we had no other

12-foot lamp, and T wanted to make them do until we got out 12-

foot lamps, and [ tried to fix them up with plaster to make them

burn. 3

(). So that vou did try to make them burn and work. satisfac-

torily ? |

A. Yes, sir ten every way | could.

(Q). Well, you may state to the Jury as to how they acted after you

fixed them up.

A. They acted just long enough—until they commenced to leak

again. This air PASSE would let the air in, and that would make

the lamp smoke. That plaster would not. last long, and then the

lamps would begin to flicker and smoke again.

Q). Then that would necessitate a new lamp?

A. Yes, sir.

(). Have vou any in use now ?

A. Yes, sir; several around in different places.

(Q. Where? .

A. T could not locate them.

(). Ilow many are in use now ?

A. 12 or 15, [ guess.

Q. Did you have any complaints of those twelve or fifteen that

you say are still in use? |

47 A. Yes, sir: right along.

Q. Notw ithstanding the complaints, you have keep them

there?

A. Yes, we do the best we can with them.

on a

Sh rea ON eee ee ae —

Sgt So Oe ei eee g ARTERY Rey ee ee

oc naar ets Pade eee

4

|

|

to

i WESTERN SIEMENS-LUNGREN CO. 27

| : Q. I will ask you in regard to another matter: You may state to

“the jury whether you are. acquainted with a lot of 250 lamps

shipped in August,

| A. Yes, su | unpacked them.

Q). Can you state as to the char acter of the burner of that lot of

| lamps?

? , A. Yes, sir. We got a solid metal burner from them, and it was

> no good; and we sent them back, and then they sent this other

burner—these other burners—on.

(). Just take these, Mr Smith, and examine them

Objected to by counsel for plaintiff. Objection overruled. Ex-

ception reserve L.

: ~(. Please examine those burners, Mr. Smith, and state and ex-

plain to the jury the difference in their construction. Take the

tube burner first. | |

A. This is the burner that we had the trouble with. - This forms

a drop here—forms a sediment: this burner has not got any, and

when it drops in it goes Into the hole: we have had these burners

in stock. Now, this burner (tube burner) we didn't have any

trouble with, because it didn’t have any drop: and this tube

burner is the only burner that burns right.

Q. This tube burner i is the first burner you had in stock, Is It?

: . Yes; sir.

48 ay You know about ak do you?

~~ A. Yes, sir; I know that.

: (). Then this solid metal burner was subsequently received ?

A. Yes, sir.

: (). And how do vou say this solid metal burner acts ?

‘ A. Laat that it goes down in here and forms a sediment, and vets

closed up, and makes the lamp smoke.

(J. How does it act upon the hight? .

A. Well, sometimes, after burning for 24 hours, it smokes and

: produces a one-sided ght.

(). | will ask vou. Mr. Smith, where this solid metal burner has

been in use, as to whether or not there has been complaints ?

) A. Yes, sir: wherever we could displace this metal burner with a

i tube burner we have done so; and the boys were very glad when

they were replaced with the tube burners, because they has so

much trouble cleaning them.

- . (). [think I have asked you before, — you may state to the

jury how many of the lot of 92 imperfect Tamps you have now In

stock.

A. Well, that IT could not state exactly: I think there are 12 or

15 still in use. and the balance are ving there.

(). You attend to the repairing of the lamps, do you ?

A. Yes, sir.

(). Who else have you to assist vou ?

A. A young fellow that helps me.

28 CINCINNATI SIEMENS-LUNGREN GAS TLLUMINATING CO. VS.

(). There are two of vou engaged in putting up lamps and-kKeep-

Inge them in repair?

A. Yes, $1

AY Clross-CxXamilnanou.

Mr. JACKSON:

(y. You say you were emyploved by this Cliciibatl Cosin October,

[SSS ”

A. Yes, sir.

low many of these defective lanaps were in use at that time *

A. Well, | suppose [have taken down tu the tuieantine about ou

of them, | | :

(). Are you able to give us the nanies of anybody else. except

those that vou have already viven, Where you replaced the lamps

with better ones? |

A. No, sir: I didn't keep any memoranda.

Q. How did you happen to keep a memoranda: of these parties

that vou have read to the jury ? 3 a

A. These are the ones that Ihave taken out just lately—within

week or two back. :

Then these lamps have been In sinee October, Tsss7

A. Xo, sir: only SINCE just before Chryistmia- We had uo ot]

twelves to put Up, so [ tried tu fix these to make them do untlt

others would come.

Q. Then, notwithstanding the fact that your company kKuew threat

they were defectlye, your colnpany put them in?

A. We had toe.

Q. Then they were only taken out since last Christmas 7

A. Yes, sir.

Q. Tad vou ever taken hee Mmeoout any place before %

A. Yes. sir: during the year back. ,

Q. Se that vou have been going through a process of takin out

and putting tn these defective Lumps right alone, have vou ?

Md A. Yea, sr. | : “es

Q). So that vou have been minking ase of thers ——

A. We only Inde use of the a during ( Jaristina: is WEEK, = Wh the

people were Ina hurry for their lamps and we jul notwelyes, We

put these up and tried tomake them do until we got the wie ws 1,

but they would net work, and the Seite commlained sy srtiehy threat

we had to take them out. |

QQ. Well. vou have complaints about the other bumpy bavowt you?

A. Oo, Sir: only cubott the solid qaetal burner

Died vou CVeT have il cotupluntit fiestas thie I d

No, str: only about the burner,

You are sure of that‘

Yes, s str ,

: Q. Mr. Smith, how do you know that there were 2 Lanips i this

pty : :

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4

OW > CINCINNATI STEMENS-LUNGREN GAS LLLUMINATING CO, VS.

(). Ever since you have boonnid in the employ of the company they

have got their lamps from Philadelphia ?

A. That [ do not know.

Q. You say the trouble with this burner is that it has nut a

place to eatch the sediment ? .

A. Yes, sir; that and the air passage.

(). T his i is the solid metal burner ?

A. Yes, sir.

(). Now, then, this trouble with this Seater is not a trouble owing .

to the difference between the tubes and the solid metal burner, but

to the depression here ?

A. Of course, that hasa heap to do with it; but you see this here

vozes and forms a sediment here ; the solid burner metal will do

that, but the tube burner will not.

Q. You do not know, do you, Mr. Smith, what ‘was the most ‘up-

proved form of lamps in July, 1888?

A. Only what [saw in stock.

(). There is no trouble with these lamps except with this burner,

ebout this new lamp, is there ?

A. That is all.

Q. Otherwise the lamp is all right?

A. Yes, sir.

‘

53 Adjourned until ten o'clock, Monday morning, eb. 10

1890. oe

Met pursuant to adjournment.

Epwin O. Estreipy, called on behalf of the defendant, beine first

duly sworn, testifies as follows :

Direct examination.

Mr. Dienst:

Q. Mr. Eshelby, please state your full name, age, residence, and

occupation. |

A. Rdwin O. Eshelby; Cincinnati; at present To am = connected

with the Cincinnati Siemens-Lungren Gas Iuminating Company

as president.

(2. You may state how long you have been connected with that

company.

A. Since its organization. ’

Q). | will ask you to state whether you have an account which

was rendered in this case sued upon—whether you have a copy

of it?

A. I have; yes, sir.

Q. I will ask vou to refer to the last two items ait that aceount—

two hundred and fifty lamps furnished—and will ask you to state

the price at which they are charged ‘there.

A. For the $-foot, $17.50 ; for the 12-foot omnes, $19.00

4 Is that net?

A. Yes, sir.

WESTERN SIEMENS—-LUNGREN CO. 31

Q. I will ask you to look at this account attached to the deposi-

tion taken at Philadelphia; refer to that account and state what

charges are made there and for what lamps.

Mr. Kramer: We will agree to that.

od Mr. Dienst:

Q. I will ask you, Mr. Eshelby, to state about the shipment to

your company of a lot of one hundred lamps made by the Chicago

company, and I will ask you to state whether or not that lot is the

— lot testified to by Mr. Smith.

) Yes, sir; it is the same lamp. You mean the fensiiaibens

Meth |

(). Yes.

A. Yes, sir.

Q). I will ask you to state inal when the shipment was made.

A. I think the shipment was made either in January or Febru-

ary. I think it was made in February, 1888; either then or in

January.

Q. Upon the shipment being made to you, when you received

the lamps what did vou do with them ?

A. We commenced to put them out in the course of our orders—

in the transaction of our business.

Q. And what occurred to them in the way of complaint from

those using them ?

A: We had a great many compl: unts about that time, and we

could not tell what was the cause. Some of the lamps gave us no

trouble at all and others did. Finally, the lamps were so unsatis-

factory and we had so many complaints from parties using them

that we were compelled to retire them after we had ente red into a

contract in one or two cases, and later on—do you w ant to know

how we discovered

Q). Just state what you did.

dd A. Later on, in July of the same year as this purehase,

the account that they are suing on, two hundred and fiftv of

them came from Philadelphia; and about the time that we were

receiving them we got a telegram from Philadelphia asking us

Objected to by counsel for plaintiff.

Q. Mr. Eshelby, I am speaking about the one-hundred lot, not

the 250. Just go on and state what you did and how you dis-

covered the damage.

A. Iam coming to that. We got these 250 lamps from Philadel-

phia, and they were followed shortly by the engineer of the parent

company—the engineer of the Phila. Co. He came out here—Mr.

Gardner came out here—and he said

Objected to by counsel for plaintiff. Objection sustained.

(Q. Just state what you did.

A. Well, I discovered in June or July that they were fraudulent:

that they were not the same lamp as those we had been using.

oD CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. VS,

(Q). State how the lamp acted...

A. Well, it would smoke, and the, flame would go out, and it

would discolor the globe and the plate around it, and, in fact, some

of them would burn a’whole evening and others, again, would

black up so that no light could be obtained in a very few moments.

(). State how many of these lamps you had in use. |

ob A. We had all of them in position.

(J. State how many you retired upon discovering the de-

fect and the smoky character of the lamp.

Q. We were ordered to return them all by Mr. Stein, president of

the parent company.

Answer objected to by counsel bor plaintiff as not responsive to

the question, and motion to strike it out-madé. Motion granted.

Answer stricken out. : ?

(Q). State how many of, those lamps are retired after you dis-

covered the defect and the smoky character of the lamp.

A. We retired all of them. |

(). State whether since the time that you retired them you ever

made any effort to use them.

A. Yes, sir; we have tried to use them on two or three different

occasions.

Q. For how long a period? You would wait them up, and how

long a period would thev be up in use?

A. About 24 hours before we would get a complaint.

4 When did you attempt to use them ?

. This last winter.

Q. I will ask you to state about what time, and what caused vou

to try them. |

A. Well, we became very busy aleng in November and Decem- .

ber, and we run out of all our good lamps on hand, and we had

quite a number of orders for lamps, and we tried to make these

other lamps do; but in nearly every case the lamps were ordered _

out. If vou will hand me my book I will show you a lot of

aYi contracts that we entered into. (Book handed witness.) It

was in November. Here is’ a contract that we entered into

with John Roeslein, of Pearl and Ludlow—contracts in relation to

this fraudulent lamp. | |

Mr. Kramer: These alleged spurious lamps?

A. Yes, sir. As I say, we ran oat of good lamps and we put these

up, and in nearly every case they were ordered out, and the con-

tracts upon the part of the customers and ourselves were simply

‘anceled and the lamps were withdrawn, beeause we could not. re-

place them with other lamps, as we had run entirely out of the good

OnCS.

Q. How many lamps are now in use—of these spurious lamps?

A. I should say 10 or 12.

(Q). The remainder are all in your possession ?

: A. Yes,sir; and have heen for a year and a half; since we retired

them.

WESTERN SIEMENS—-LUNGREN CO.

QJ. Ilow many lamps were there of that character?

A. One hundred.

Q). What was the amount that vou paid for them ?

A. Nineteen hundred dollars. That, of course, without freight

and dravage.

— Q. You may state whether or not you have ever had any com-

plaint at the tine when you were soliciting contracts for the pur-

pose of putting in the lamps, any compl: unt from persons who

objected to the lamp on the ground of its action.

(2. You mean the fraudulent lamp? | -

(). Yes, sir.

A. I don’t understand what you mean.

Q. What I mean is this: In soliciting new trade, did you meet

with any objections from persons on account of the action of

08 of eg lamp

Now, you may state, with reference to the shipment of

this last iat of two hundred and fifty lamps, what class of burners

was shipped with that lamp |

A. What is called a solid metal burner.

(J. State what burner had been shipped with the lamps prior to

that time.

A. What is called a tube burner. :

(J. State the action of the’solid metal burner. TTow did it act ?

A. Letme havethe burner and,I can illustrate it to you. Burner

handed witness). The first lot we got was this burner. Bringing

the gas there, it would carbonize on top here, and would not permit

the flow of vas around here at the bottom, and it would) become so

hard that we could not ect the — through, and that caused the cut-

ting off of the light at that side, so that often there would be a

steady blaze at one side while at the other side there would be no

blaze at all. When we found how it acted, we could not fill orders

with that burner. The mest of them were returned tous. They

then sent us this burner, which is about the same as the first one,

with the exception that it is curved out here. It is like the solid

metal burner. This is called a solid metal burner, and this a metal

ee

t " ‘

.: burner. The regular burner that wealways did get and now

of get is this tube burner. We never had any trouble with the |

tube burner.

(Q). Now, Mr. Eshelby, vou many state how the other burner acts.

Are you able to keep it in places?

A. No, sir; we don’t attempt to; we can’t do itat all; we had to

wee replace it with the tube burner.

| (). State whether or not you have all of the 250 of the solid

metal burners on hand. |

A. I think so; ves, sir. |

(J. Let me ask vou, Mr. Eshelby, whether vou have ever tried to

effect a change of this burner.

Objected to by counsel for plaintiff! Question changed.

5—193

2 CINCINNATI SIEMENS—-LUNGREN GAS ILLUMINATING CO. VS.

(). I will ask vou whether vou have ever tried to e fleet nu a ange

with the Chicago company of these burners. ‘

A. No, sir: the Chicago Co, was not In business.

Question and answer objected to by counsel for plaintil, who

move to strike them out. Objection sustained ; question and an-

swer piowon out. Exception re served by counsel for defendant.

(j. You may state whether or not the C hicago company Is how

out of business—no longer having the ageney for the Philadelphia

company, has notified vou, to deal directly with it, and that you

are dealing directly with it.

Objected to by counsel for plamtill,

The Court: Mr. Eshelby, if vou know of your own knowledge

that the Chicago co. is out of business, vou may testify that.

A. I do not know it of: my own knowledge.

Objection sustained.

GO Mr. Diexst:

(). You may state whether or not, ever since the items inthis:

last account, vou have not purchased your gootls direetly from the

Philadelphia company.

Objected to by counse] for. plaintith- Objection overruled.

A. Yes, sir; we have purehased everything from the Philadelplia

Co. since July, ISss—July or August, ISSs. |

(Q). You may state whether or not vou have ever had any com-

plaint from the Chic: ago company about vour direct action with the

Philadelphia company ”

Objected to by counsel for plaintiff Objection sustained. © Ex-

ception reserved by defendant.

(Q). [ will ask you to state how many burners there were—250

burners ? :

A. Yes, sir; 250.

(J. Let me as you when vou first notified. the sh untiff company

about their violation of the contract between the Cincinnati c om pany

and the Chicago company—when you first notified the Chicago

company in regard to their shipment of goods into Middletown.

A. Well, the only evidence appear of the first notice was Febru-

ary 11th, according to the letter book. | |

Q. Have you vour letter book here, and can vou refer to it and

state the date ?

A. The letter book is not here, but it has been sent for and will

be here in a few minutes. I know that it is ‘February 11th, though,

for I have a copy of the letter here.

fo — mame ae = 4

’

we)

e

ft |

WESTERN SIEMENS=-LUNGREN CO.

61 Mr. Kramer: We will admit the copy.

Mr. Dirnst >

(). Have you the copy with you?

A. Yes, sir.

(QJ. Read it, please, to the jury.

Letter was read to the jury, is hereto atte wched: and made part

hereof, marked “ Exhibit No. 1.”

Q. You may state whether—what are the usual terms of contracts

entered into for the renting of the lamps, or the selling of the lamps,

between yourself and the persons engaging the lamp ”

Objceted to by counsel for plaintiff.

A. Shall I read the correspondence ?

(). Just state the frets. |

QM. You mean in regard to this Middletown business? Well,

after some negotiation we offered to rent them, or sell them, the

lamps for $35, or rent them to apie to net us one dollar a month,

or twelve dollars a vear.

The Courr:

Q). Phat was before the sale by the Chicago company ?

A. That was between sales.

(). And they refused to deal with you then ?

A. The Middletown Gas Company ? . Yes, sit

The Courr: Well, I will-sustain Be -objection and rule thi ‘it testi-

monv out.

Exception reserved by counself for defendant, who states

62 that he expected to prove by this withess as follows :

That defendant rented its lamps for the period of a vear at the

rate of S12 per. vear per lanip, and som [such lamps for the sum of

$55 per lamp at the end of vear: that all its) lamps were so

rented and sold, and that no other terms were ever ente red Into by

it with renters and purchasers.

Mr. Drexts:

(). Now, Mr. Eshelby, I will ask vou about the repairs which vou

have made to these lamps. You may state whether or not vou have

purehased any materials for the purpose of making the necessary re-

pairs to the lamps which have been furnished you from time to time

by the Chicago company.

A. Yes,sir; we have.

Q). And, if so, state how much and to what amount the material

has come.

A. I made a lst here in the book : wie itis. Shall J read it?

The 1 ‘eading of the list obye C ted. to by ¢ counsel lor ob untill, Objec-

tion overruled. Exception re morved.

BG CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING COL VS.

(). (30 O}}.7 Mr. E she ty, vy.

4. Feb. 6, SSS. $12.00, twelve flanie plates.

N

aeril.

A. Feb 17 they shipped us a dot, but made no charge for those.

The next is April 6, 2888, $24.00 for 24 flame plates > April 1S. 1Sss,

"te * -_ . se ] 4 . are A i ‘ ~. } — _ e 4 . ]

| i. 4 | nef Haat Is Tor asbestos, vVilavs, fovernors ,vurncrs, tlilie polite.

{

» 43 bi. :

nnd bv-epas= cocks; Lugust lo, PSss. 34. lo—thatis the Pin etedpeata

COMMPAaANVKoNe Cali ehivzeal. powder, ahead plumb LO Oetolwes

ee © - : “4 - > . \ as 3 ‘ s . .

5 29. SSS, S600 for tWelve dozen tlituc uate,

The Court:

v. What ais a flame phate, Mr. Eshelbv ?

That SCs Ul) Ite the lamp and hours Out. The next is NOV.

os —}

1214. A

Mr. KRAMER:

q. What is chvyzal :

1? : ae } : se ‘ and S $ R * » 7 aps } ‘ys } : mn

A. ¢ hivzal isthe w hyit » substance that IS DIINeecdd W ith the solution

that we whiten the bottom of

© What are the catches 7

<

the | bility) with.

: : :

A. The catches are—well, for instance, a damp goes out and may

heale— |

QJ. Used to shut the flame off anid on?

A, NO. sir: 2G ink tutake the globe out: TI think it is the globe-

holder ae ,

Mr. DIENsT -

— eer : "% } > a

(). Go on reading the lst, please, or have vou finished all

A. »®O, sit: i haventread all. The next is January 12, 1889, 12

Ores aya sf ‘Te We. Tinh Lungren STOVeT IO

doz. ‘A sbestos cvlinders, Be Wt

Washers, $13.11: Feb. 2. 1889.

—_

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we

LOZ: ashestos ge aE

~ie me

—

1 ' 1 .

wea ry ; wee, Marea lati) iryty ;

tie lara Cit CUuVZai ANG. SOLUTION.

S4.00- March 1, 1Ss9, oc 6,12: March 14. 1889.

two cans chyzal and solution, $4.00; April 12,7589, 60 thane plates,

12 ft., and 60 16-ft. flanre plates, three. cans chyzal andl solution

$75.20: June 1, ISs8o, tlame plates. grove rhor-Washers, Clivaal and

sulution, $27.59: A 17. 1889, clote-holders. hinees. and catches.

mi fd mec pel. 7 i, 150. Tlame pttes enicl echivanl. S6v.00 CC tO

*

4 be *. 1889. eateles cl]iti poids Ljiel presen, Url] GOLRUIGeCTLIONLS,

Mr. Kramer:

Mr Jexhielby, (jerees Vpdot threat Iciude SOE IDES Lhhitt are not. lh

; ae em ‘ :

the nature of repairs ¢ ;

a :} * 3. « ¥ : “fe ‘ . ‘ 7 " 7 : + } ! j r

A. ] Wiil GOTreec.t 11% fornies statement of October Sth [ristead of

tT “ } te . . } 4 <: i

$11.90 it. should be 82.22: October 8S. ISSG. ashestes eyvlinders

chvzal, and solution, $51.10; December 15, 1589. pertora ber

ehyzal, ahd solution, SOO: ] doce rip tae Oth. TASQ. (lee anid

-eviinders, $81.44; December 27th, SS, chivaal and solution, 84.00:

January 17, 1590, § BOUN; total, $616.46.

—

a

~

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ne

~

-

4

Well. ke ep) oll Peas ling the Invelces and shale thre character of

oe Wwe Cals ehvaals. Wo ciilis solution. four doze catelies,

-

° ~~ : _—

: ; WESTERN STEMENS=-LUNGHEN CO. | i

Mer. Ditxsy

() That covers whit period of —

A> From Feb. G. ISSS. to January 17. PS90, ielusive

(do State whether on Hol these: repairs were to the batnnps furnished

vou by the Chicago company.

AL A portion of them: were. : |

ae Cc). will ask Vou To state Whether or mot. as the beamiy OTOW 1 older

| and retains in service longer, there is an ierease in the cost amd in

the repairs. |

Question olyeeted to by counsel tor plamitifh Obieetion sustatmed.

lexception reserved by counsel tor defendant,

Counsel for defendant expects to prove by witness that the cost

und expense of keeping the humps im repair would iierease as the

;

[adiips erew older and remimined in service louver.

Q). You mav state how much of this ts-applied to the lamps pur-

Chased tron: the plaimtiff company—of these expenses, P miean.

Ga A. Do you mean to the one hundred lamps or to the 300

larnps—all of them”

Al dT mean what vou purchased entirely from the Chicago Co. ”

A. They were all purchased trom the Chicago Ce

Q). All of them ” oe

A. Yes, sir.

‘ Q). Then that 8614.46 hes all one Mtoe the damaps purehased trom

_— the Chicago company ? |

). Have vou a lamp here, so that vou ean show ”

A. Yes, sir. ,

db. Now, dust state what portion——the clobe Goes mi hiere, does it”

\ A. Yee, air. |

a. And is hare down tliat Wavy

A. Yes, sir.

(). Where is the flamte phat

*2

? 4

- A. Phe flame plate comes in here.

(0. Thre fleame polate is enelosed: by thre olobe

A. Yes.sn

\). And the bua "her Im attached there. is it?

A. Yes, SEY. : 7

Q). And what do vou call this white”

on A. Phat ais the ehyzal and solution that woes on there.

Phe Cour

Q. What is that material—that white—there ?

(i . ft is a imaterial made trom: the ehyzal powder and the

}

soltrtion thatt is sent.

(). That is ate tneolibustibie ”

A tae. | ae

hen ane flame goes up and encireles that plate ?

i}

Yes, s!

’

().

A

t

OS CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CoO. Vs,

Mr. Dienst:

(). Mr. Eshelby, vou may now state about the bye-pass lever.

When was that first furnished to vour company by the Chicago Co. ?

A. We never received any from the Chicago company.

(). Did you ever receive any from the Phil: adelphia company ?

A. Yes, sir. : ,

(. Were they in exchange for the old-stvle lamp? :

A. Yes, sir; | would like to correct myself in regard to that. I

am not positive as to this lot we got, whether thev had bye-pass

levers or not, but I think thev had. This 250. which was billed to

us from Chicago but came from Philadelphia. :

Q. Ilow many were in exchange lor the old lamp ?

A. All of them. |

(). Do you know the quantity—how many there were of them?

A. Well, there were—I could not say now; [ could not tell ex-

actly. Iam not clear as to the last lot, but I should say seven or

eight hundred, or eight to nine hundred.

Q. Do vou know when the exchange was first eficeted-—-commes 1iC-

ing at what date?

A. Why, I guess it was in August or September, 188s.

Q. Can you “state what it cost in dollars and cents to effect the

exchange ?

67 Objected to by counsel for plaintiff. Objection overruled.

Exception reserved. |

Q. You say between seven and eight, hundred were exchanged ?

A. No; I said between cight and nine hundred.

(). This last lot of two hundred and fifty had the new improve-

ment on?

A. I think they had; yes, sir.

Q). State how much of a force you have in your employ, Mr.

shelby, to go around and make the necessary and essential repairs

to these |: waps ?

Objected to by counsel for plaintiff Question withdrawn.

Q. The testimony that you have given, Mr. Eshelby, related, o

course, to the material that has gone Into the lamps in making the

necessary repairs ?

A. Yes, sIr.

(). Let me ask vou whether or not you can state the amount of

labor—the cost of labor to you—for the purpose of making those

repairs ?

A. I cannot state it accur ately. I can estimate it very nearly.

Objected to by counsel for plaintiff. Objectien overruled. Ex-

ception reserved.

Q. Approximate, during. the ‘aie time—covering the ‘same

period of the time.

Bene re eR aT a

eo ©

~

~~":

. a

—_—

- ee

WESTERN SIEMENS-LUNGREN CO. | , o

A. Well, we had one boy that we had to employ just to attend to

this. We paid him $4.00 a week ; that was along during the suimn-

mer. TTe just did nothing else but this; that was a total of

GS of $44.00. We keep five boys, and we set aside Saturday for

overhauling and repairing the lamps and cleaning them, to-

evcther with the eas-fitter. IT would estimate that about one hun-

dred days in the two vears—about two vears—a little over two

years. Do you want. to include in that the change of the bye-pass

levers ?

(2. No; Iam only referring to the repairs on the new lamps.

A. On Saturdays, we always took the Saturdays to eall in the

boys off the routes, together with the fitter and his helper, to over-

haul and clean up the lamps. -

(J. Well, have you approximated it?

A. That is a total of $571.34, the one hundred days of the fitter

and the boys get $4.00 a week, at sixty-six and two-thirds cents a

day; and the fitter we have never paid less than $2.50 and as high

as $3.90 a day; that makes a total of $517.34, and the boys, $277.54,

and the gas- -fitter one hundred days, at $9 50) a day, would be

$250.00. .

(). That is for the same period of time, is it, from February Oth,

1888, to about January, 1890 ? 3

A. Yes, sir. |

(). Now, 1 will ask you to st: ite, if you can, the cost of making

the change from the old-style lamp to the bye-pass lever.

Objected to by counsel for plaintiff. Objection overruled. — Tex-

ception reserved by plaintiff.

A. Well, I estimated—we figured that the expense of changing

was about $1.00 per lamp. Of course, we could not go into a

69 man’s place of business and take out his lamp. We mains

take these levers out to his place of business and change the

lamp there; but we would have to send a lamp out, take the old

lamp down and take it to the shop to be fixed. Every case—pos-

sibly out in the suburbs we would have to send a lamp out, have

the old Jamp brought mn to the shop and then sent out. So that

we estimated the time and labor at about one dollar a lamp: in

some cases it was really a great deal more, and in others a great

deal less, of course, according to the loeality ; but we averaged that.

it cost us about one dollar a lamp to make the change.

Cross-examination by Mr. KRAMER:

(). Mr. Eshelbyv, do yvou- know of your own knowledge when this

byve-pass lever was, first invented or ‘discov ered by the parent com-

ae :

A. Ido not; but we had complaints as early as

(). No; you “misunderstood my question. T asked if you know of

your own knowledge when this bye-pass lever was first invented or

first introduced by the parent company ?

A. No sir; I don’t.

40 CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. Vs,

Don't vou know asa fact that the lot that vou got from the

+ lads J-hia company of 260 lamps, which is the last item in our

account, is the first time that is was introduced ? ,

A. I do not, sir.

Dont Vou know that the president ant secretary of the com-

pany have so announced and declared ?

Objected to by counsel for defendant.

Question withdrawn. | |

70) (). You personally do not know when it was first intro-

duced ”

A. I] donot. I know that was the first time we got it.

You have stated to the, jury, from vour invoice books, Items

of expense for repairing lamps from Feb. 6, 1888S, to January, 1800.

Are vou able to portion out of that list the expense that vou were

put to concerning lanps from Chicago? [mean excluding the two

hundred and fifty lamps furnished you from Phtadaie.

A. They all went into them.

Q. Do vou mean to tell this jury that vou have had no expense

for repairing lamps since August, 1SSs?

A. We hay-n't bought any lamps since then from the Philade debi

cx mpeny: ,

. Where have vou —" them ”

r I think we bought two

(). Do you mean to say that vou have bought no lamps from any

other souree sinee August, ISSS”

A. Yes: we hought one lot.

(). How many lamps in the lot?

A. Here is the invoice. It may be that T ean tell vou just when

we bought them. November 23. 1SSS, we bought 7: 5 Jamips,

Q. Did any of those seventy: tive lanips need anv repairs siice

ISSS” | ;

A. T suppose they did,

(QJ. Can vou te I the jury what portion of this hill of items applies

to these 75 I: aldiipes :

A. Well, I suppose 732,

new lamps. | |

71 Q. Do you mean to say that you — 1,126 lamps?

A. Yes, sir.

(). And all of them came from Chicago except 75?

A. Yes, sir; 1 think we got the — from them, possibly.

Q. What do vou mean by —?

A. That is just like that, you might say, with the exception that

in the center there would be one of these lamps.

(). About how many of those — were there?

A. I think there were five.

(). And you will not say that those five did not require some of

those repairs that you have charged for on this account?

A. Yes, sir; because we sold one immediately after getting them

and we have two in the office.

Q. Did they require any repairs ?

» allowing for the fact that they were

OE a ge Te ee ”

WESTERN STEMENS-LUNGREN CO. 4]

A. Nothing, with the exception of the flame plates.

-Q. Didn’t the — req-ire the same degree of the attention that the

other lamps did ?

A. Yes, sir.

(). So that part of this expense w vent on these —?_

A. Y es, sir.

Q. And the same is true in regard to the other items of repair,

Jabor, &e. ? |

A. Yes, sir.

-Q. And you are not able to definitely ap-ortion the expense ?

A. No, sir; Iam not. .

Q. You g no account ?

. No, sir.

72 “ And vou have only bought 75 lamps since August,

18835 ?

A. That’s all.

Q. With regard to these bills that vou have referred to in the in-

voice book—from February 6th, 1888, to August, 1888, being the

time when you ceased to do business with the Chicago company—is

it not a fact that the terms are stated as being “netcash”? Take

the first one, for example, and you need not refer to any others—

February 6th, 1888. :

A. Yes, sir. |

(). You paid for that, didn’t you, to the Ciieago company ?

A. We had some difference, and it was let go over. The Middle-

town commission was one of them. We kept paying the drafts as

they were drawn upon us, with the understanding that we would

settle these differences. We had one settlement here

Q. What date is that? You got a credit on the bill of 1887 for

one lamp there, and repairs on lamps

A. Yes, sir.

Q. T here is no credit there for any repairs ?

A. No, sir.

(). So that it is a fact that all of those items of flame plates,

9 ges and solution, and all the other items from Chicago from

Feb., 1888, to August, 1888, for whieh you have now charged these

items, that the ‘vy were billed to you as net cash, and you have paid

for them ?

A. No, sir; eure after billing that first item of February 6th—

on February 17th—they sent us a lot more, and made noc¢ harge for

them.

Q. With that exception didi’ t you pay for all the balance?

A. Yes, sir.

qo Q). Will you explain to this jury if the Chicago company

were to defray all the expense of these repairs why y “ou paid

for them—-why vou kept on ordering them and paying for them if

the Chicago company were to furnish you those repairs and defray

all the expense of those repairs? |

A. Well, I cannot explain it.

(). Did you ever write a letter to the Chicago company or notify

6—193

4? CINCINNATI SIEMENS=<LUNGREN GAS TLLUMINATING CO. VS.

its officers at any time that there Was an erroneous charge, and thiat

thev had——

A. I had a conversation with Mr. Wolf. There had been a change

in time, and we didn’t get the lamps as promptly as we ought to.

Ican show you a letter here where they say to please honor drafts

Hae later this will be corrected.

. JJave vou those a here?

_ Yes, sir; this March 9, 1888, is one of them.

Letter read to jury, Introd duced In testimony, and made part

hereof, marked * Exh bit No. 7

(). Do you know of an Vv otivers before I read thisto the jury? I

am now talking of any complaint you made.

A. Here is one, August 15th, 1888; a complaint in reply to theirs

of the 14th. |

Letters read to jury of Chicago Co. and Cin. Co.’s reply, dated, re-

spectively, Aug. 14 and .15,1888, made part hereof and attached

hereto, marked ° Exhibits-Nos. 4 and 5” respectively.

(). Is that the only one that vou know about in which you made

any complaint as to their charging vou with these items of repairs”?

Then show this jury a letter of compiaint sent by you to the Chi-

cago Co, complaining that they were charging vou with these items

of repairs and you were paying for them under an erroneous idea

of your relations with them, 7

A. We di £ not complain to them until this letter.

Q. Aud that is alter you would not pay sis draft of Aug.,

a4 1855 ’

‘A. Yes, sir.

(Qy. Will you please explain to the jury, Mr. Eshelby, why it is

that if, as you now claim, they were ihiaes to make these rarious

repairs on your lamps, why it is that you paid for them * |

A. We only paid one or two items.

Q. Didn't you pay every bill they rendered you for flame plates,

chyzai, and sointiom, and the various items that you have enumer-

ated, except this one for $12.00, from Feb. to Aug., 1838?

A. We got three items from I-ebruary to August, one of $12.00

wend one of S11S.74.

Q. The $12.00 item of February 6th, ISSS, was credited back to

you? : |

A. No,sir; we never got a credit item for $12.00.

Q. Didn't you pay them on April 18, $118.74?

A. Yes, sir.

q. If you did not have to pay for the items why did you do so?

A. We paid for those three items—F ebruary 6th, $12.00; April

Gth, $24.00, and April Tsth, $118.74—befere we discovered that we

were not getting the benefit of opr contract.

Q. If the Chicago company were to defray the expenses of furnish-

ing these various things and you knew that, and thev charged you

with 8119.74 on April. 18th, why did you not ebject to it?

A. We paid for that under a misapprehension of what possibly.

oti Sank Se tae, ae

ee )

!

5

i

i

t

+ OIE TTL ~ ESE

WESTERN SIEMENS—-LUNGREN Co. | 43

we were cutitled to; then we begun to look into our rights, aud then

that letter, just read here, was sent to them.

7° QQ. Will you please find your jetter of Mareh 7th, 1888, to

Whigh this is a reply? —

A. Yes, sir: I liave it here.

Letter read to the jury by Mr. Kramer introduced in evidence.

Copy attached hereto made part hereof as © exhibit No. 3.’

(). Now, that is the letter to which vou got this reply of March

9th, in which vou say you made an account of repairs”

A. No; I didn’t say that.

(. You make no claim in this letter

A. No, sir. oes

2. Didi’t vou savy vou made a complaint in 2 letter, in reply to

which they said-that they would make an allowance later for the

repalrs—— ys

A. I don’t wish to be so understood. Isaid——

Q. And is not this the letter i which vou claim that they said

they would make an allowance” Is not this the letter”

A. Yes, sir: but

Letter of March 9th, 1SSS, fron: the Chieago company to the Cin-

clnnati company in answer to letter of March 7 (in letter- -press book),

read to jury. mr already attached hereto made part hereof and

marked as “ Exhibic No. 2.”

Q. Now, Mr. Eshelby, vou have complained of paying $44.00 for

the w ages wo this boy. Tlow many weeks was he in vour employ

In making repairs ? |

- We had him with us 11 weeks. :

Do you teah to say that he devoted his entire time to the

>. Hone ince of repairing the lamps from Chicago ”

A. Tle was engaged expressiv for that ‘egh ee but, as 1] said,

these lamps were all in together. We didn’t prete nd to keep

au separate account, % aud Whatever aoe of the EX pense lor

repairs would be apportioned as: seventy-five Is to One thou-

oo

=

—sund—one hundred and twelve.

—_

). What is the name of that boy?

A. Lewis Reiner.

). Where is he now?

A. In our employ.

» Tad he been emploved by you before he was put to repairing

a,

4

those lamns ”

A. No, sir; he was eng aged just for the purpose of repairing those

lamps.

@. Do you mean cleaning the globes ?

A. No, sir; I mean repairing the lamps.

qQ. Do you mean cleaning any part of the lamp ”

A. Oh, ves, sir: that would be necessary.

(). How old was this boy ?

I should say he was 14 or 15.

‘4

44 CINCINNATI SIEMENS—-LUNGEREN GAS TLLUMINATING CO. VS.

Q. This boy would go around to the different places where these’

lumps

A. No, sir; we kept him in oe ik all the time.

(). Tlow could he get the lamps ?

A. The titter would bring them in to lim, and he would repair

them in the shop.

Q. Was it your custom to‘take down the lamps just for ordinary

cleaning if |

A. No, sir. I will show vou. The boy carries out that

id flame plate and brings that back with hing. This has got to

be done while in the shop, because this has to be heated and

two or three coats put on it,and when it comes to cleaning this and

taking this out—this apart—then it has to be done in the shop.

We have had a great many of these mick-led, but we have not in-

cluded that here, because—it is not due to the damp, but we had

damp cellar. Still we made no charge for that; we Just charged for

Inaterial, 7 : |

Q. You say you have a damp cellar?

A. Yes, sir. | ,

Q. Is it not a fact th: it these 92 or 100 lamps were kept in that

cellar ? ;

A. Yes, sir; but this Dacasisiean was remedied. We discovered it

and had it remedied, had it fixed. 3

(). Is this one of the 92 lamps?

A. Yes, sir. |

(). The 2% sh and burnishing 1 is all worn oif. By reason of being

In the cellar

A. No, sir; it 1s not owing to that.

Q. That boy Was at work T1 weeks, vou say °

A. Yes, sir.

(J. He is repairing lamps. now, isn’t he?

A. No, sir; we have stopped —.

Q. Why? Don’t any of the lamps need repairing ”

A. Oh, ves; but one of our boys left us suddenly and we » put hitine

on the route and then stopped.

Q. In regard to the 100 days ina period of two vears, you say

you emp loved toro boys to go around on Saturdays ?

A. No; they go around through the week.

fie QM. W hat did they ‘do?

A. They clean. the globes. | The globes become smoked

Q. Did they make any repairs ?

A. Not any farther than when a flame plate wears out.

Q. You don’t claim that they. made any repairs ?

A. No, sir.

(). But vou charged for their servites

A. I will explain. that to you. We i ave on our Jamps that are:

up, We have to go once and sometimes twice a week and clean the

globes. We have four or five boys that go these rounds, and we

always set aside Saturday, unless there was an order that had to be

attended to positively upon. the part of the gas-fitter ; but every one

of our employés in the shop would go into the basement where

|

!

|

!

ae

WESTERN SIEMENS-LUNGREN CO.. | 4d

they would elean all the lamps that needed it. They devoted Sat-

urdays to that—cleaning and repairing.

Q. Do you claim that those four or five boys made any repairs ?

A. | claim that they assisted In making repatrs.

Q. What repairing ‘did they do?

A. Well, I cannot tell vou that. The gas-fitter can tell vou.

(). Personally , you do not know? : ,

A. No, sir; except that I. know they were in the shop on Satur-

days, and would frequentiy go out to help—

(Q). Did you ever render the Chicago Co. any bill whatever for the

Jabor of these boys at any time ”

A. No, sir.

(). You knew that these boys were » making these repairs?

A. Yes, sir; I knew it.

79) (). “And yet you never at any time, from February 6 to

August, 1SSS— did you render any bill for it to the Chicago

company or let them know in any way that you had a-claim against

them for that? |

~ A. No, sir; because it was only a period of four er five months

that we did business with the Chicago company. '

q). When did vou first commence with the Chicago company ?

A. We commenced with the first C ‘hicago company in November,

possibly ; bought 200 lamps and——

QM. When did you make the contract with them first ?

A. Nov. 9, 1SS7.

@. And you knew alter wards that the first company had sold out

to the second momepeny !

A. Yes.

(). You knew that hint Just as vou knew that the Cincinnati syn-

dicate, composed of y ourself and Mr. F leisehmann, sold out to the

other company © .

A. Yes, sir.

2 And you never made any charge to the Chicago: company for

the labors oi these boys’ |

A. No. It was very little. It would have been only eight days’

work, ; bee :

(). Referring to the items of 92 lamps, you. said, I believe, that

there were a hundred ?

A. There were one hundred.

SO (). You swore to sin cross-petition, did you ?

A. Y es, SIV.

You filed that paper in 1Ss80. You certarnly knew as much

Ps as Vou do how ,

A. No, sir; I did not.

(). Did you personally examine the 92 lamps that you claim are

imperfect * ?

“A. T saw them tuken apart—ves, sir.

Q. Did.vou know enough to know Whether they were different

from the other lamps ? :

A. No, sir.

@. Do yot know it now?

46 CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. Vs.

A. No,sir. |

Q. You say that there were spurious because your gasnran

SUVS So?

A. And the parent company says so.

And some of your consumers complained of them ?

A. Yes,sir. Every one of those lamps that we put out was com-

plained of. |

Q. Is it nota fact that ‘they complained of some of the other

lamps ?

A. Oh, there have sometimes been somplainte that they were

dirty, or something lke that, but the complaint was uot daily, as it

was with these lamps.

(). Don’t vou bave to take lamps out now:

A. There may be some. I should say there is not, but I don’t

know positively.

$1 (. Now, Mr. Es helby, I will ask you this general question :

: Is not this a fact that this matter of introducing this patented

article, this lamp, is a matter of experiment and some object to it for

triffling reasons or because they prefer the other gas-light or clectric

light and oceasionally you will tind that there is something wrong

with the lamp, but that generagly it is complained of for sume trif-

fling reason ?”

A. No, sir; we always ae say ee ae Jamps up for parties

trying them, an sometimes they suy they consume too much gas

or something of that sort: but that was not the case with these

spurious lamps; they were complained of constantly, so that we

were compelled to take them out.

When did vou first discover that these lainps, the J2 1 lamps,

were defective” :

In June or July, 1888.

. You got them in-February ?

¢ Yes, sir.

Q. And you discovered that they were defective 1 June or July ;

can't vou 0X it more defimitely than that?

A. The. reason that I fix it in June or July is that it is whenever

the engineer of the Philadelphia Co. came out here.

@. Now, will you please explain why you did not send back these

lumps as soon as you discovered that they were defective?

A. Yes, sir; because Mr. Stein brought suit against us for an in-

fringement of the patent and ordered them jn and told us'to hold

them and because negotiations with the Chicago company had

ceased.

2 @. Is it nota fact, Mr. Eshelby, that the suit of the Phila.

Co. against vou was long after? ,

A. Well, it may have been, but P—— & S—— said that they

were golng to bring suit.

(). You discovered that these ee were imperfect wae you

saw Mr. Stein?

A. Yes; through his engineer, Mr. Gardner.

q). And di t you know it before that through your gas-fitter ?

A. No, s :

-. <>

—?

Dg ems

-~

t

+ ge QI es ~ *

WESTERN SIEMENS-LUNGREN. CO. , di

Q. Who was vour gas-fitter before Mr. Smith ?

A. Mr. Corblev.

Q. Did Mr. Cask lev take out any of those defective lamps ?

A. Yes, sir; he took out a great many of them.

Q. During what months did he take any of those lamps out?

A. After the time that Mr. Stein ordered them out.

Q. Then it is only because Mr. Siein ordered them out that you

took them out? :

A. Yes; and then our consumers were complaining; we didn’t

know what was the trouble with the lamps; someseemed to be giv-

ing a good deal of trouble and others didn’t; some of them smoked

aud some did iiot. |

Q. Was that not true of the other lamp also °

A. Oh, no, sir.

(). Have you ever see?’ this lamp smoke ?

A. Yes,'sir.

Q. Where?

- In our office.

Ss . You have now 12 or 15 of those lamps now in opera-

ian 4 |

A. We have.

(. How can you explain that to the jury, that you allow gg

lamps that are fraudulent, Imperfect, and spurious, as vou say, to

reinaif out, or how ts it that they are kept?

A. Because we have no good lamps to replace them.

Q. Your customers are s stisfied with them ”

A. No, sir; they are not.

Q. Well, they keep :

A. They are not satisfied; thev are simply holding them until we

“an replace them with good lamps.

~Q..Are vou getting rent -or them ”

A. No, sir; we sold them.

Q. You have sold other lamps’

A. Yes, sir. :

(). And vou sold them at the same price ?

A. Yes, sir.

(). And you sold them knowing that they were spurious ?

A. We soid them with the understanding that we would replace

= with good lamps as soon as we could ‘do SO,

You cannot tell anv -ore definitely than June or Fal v that vou

fir discovered that these lamps were imperfeet ?

_ 1] think it was July, because it was, [ think, about’ the time we

got uy to the 4g eg gery | : : i

You said, if I understand you, that the fraudulent lamp gave

nan le from tite and that the flame weut out and it discolored

the plate’ :

A. Yes, sir. iS | ?

(). Did vou ever at any time write to the Chicago company of this

rashie about the lamp ?

S4 A. There is a letter, ] think—I cannot say ex sactly What 1

said. The reasons for not paying their draft.

Goo he ee Te ee

Mig ae +,

AS) CINCINNATI SIEMENS-LUNGREN GAS TLLUMINATING ©O. VS.

(). Their last draft?

A.. No, sir. 8

(). Do vou refer to the letter vou read a little while ago ?

A. No, sir; there is one after that. |

(). Lam talking of from Feb. to July... Did you at any time be-

tween those months, when vou had complaints of your gas-fitter or

from vour customers iIn-regard to these lamps, make any complaint

to the Chicago Co. of any kind, by letter or pe a ?

\. I don’t reeall now that I did; I may verbally.

Q. Do you remember when you paid for those 92 lamps ?

A. Promptly on the 10th of the month.

(). On 30 days’ time?

A. No, sir; we paid promptly on the 10th of the month always.

(). And you never made any claim for rebate until this suit was

brought ?

A. As I said, we were only in business with dine

business with them about two months. We opened the business

here and then gave them an order, and then this trouble com-

menced. ve ,

(). Can you tind, without much trouble, the invoice for these 100

lamps in your invoice book—in February ?

A. Feb. 1, 1858, 25 12-ft. lamps; Feb. 9, 25 12-ft. lamps; Ireb. 10,

25 12-ft. lamps; Feb.15 and) Feb. 17th they are all 12-foot lamps.

The 16-foot are all right. IT am not. clear whether we got

85 those in Feb. or Janu: arv or March. As I sav, we did not

discover that the lamps were fraudulent until in June or

July. |

(). Can you show us when you paid for this lot by any of vour

books ? nee

A. I believe I paid all the bills promptly on the 10th of the

month. oe :

(). Now, with reference ‘to the matter of the burners; is it not a

fact that before the solid metal burner was introduced that the

Philadelphia company furnished to the Chicago com-any what is

known asthe tube burner?

A. I don't know that; we always got-the tube burners.

Q. You never got anything but the tube burner until you got.

this lot from Piiladelphia? |

A. Yes bs SIV.

Q. Is it not a fact that since this the tube burner has been tban-

doned and they. use only the solid metal burner ?

A. I don’t know of my own personal knowledge.

Q). Didn't you get from Philadelphia the tube

A. Oh, I misunderstoos you; I thought you asked if they had not

abandoned the tube burners. Oh, yes, mney: give us the tube

burner. |

(J. Don’t you know that the parent company has abandoned the

solid metal burner ?

A. I don’t know it of my own personal knowledge; I only know

it from whay I heard them testify to. |

Q. Is it not a fact that since you commenced your dealings with

e

WESTERN SIEMENS-LUNGREN CO. AQ

the Philadelphia Co. that you have been ordering from them some

sort of liquid to whiten the lamps ?

SG A. Yes, sir; white chyzal, a liquid solution ; that is what

sf have been testifying about.

Q. Now, in regard te the lamps used in) Middletown, did) you

ever se ell any lamps i in Hamilton or Dayton, or rent any * ?

A. No, I tried to.

(). Is it not a fact that as soon as the Chicago company discovered

that they sold nine lamps to Middletown that they turned the

order over to you?

A. No, sir; they did not.

(QJ. [t was turned over to you?

A. They sold three lamps in January and February. and we

protested. nee }

(). And they stopped * ?

A. No, sir; they immediately went on and sold nine lamps,

and — isthe reason that we could not do business in Middletown.

QJ. But it seems that the Philadelphia Co. are able to do business

with them ?

A. Yes, sir. :

Q. I will ask you to inal at this letter upon the letter-head of the

Cincinnati company, July 21, addressed to the Chicago company.

Did your company send that letter ?

A. Yes; that was sent by Mr. Ludlow.

Letter read to jury, said letter being “ Exhibit X ” in deposi-

tion of Joseph Wolf, hereto attached. |

Q. You have filed a cross-petition in which you ask for $6,000

for their invading your territory at Middletown, Dayton, and Ilam-

ilton ?

The Courr: You need not RO into that.

Mr. KRAMER :

You also claim, Mr. Eshelby, in) your cross-petition,

87 $2,250.00 for excessive price of lamps sold you before the ren-

dering of this last account ?

A. Yes, sir.

QQ. Have you any record or statement to show any such excessive

prices ?

A. I have no record beyond the Set that we obtained a price-list

from the Philadelphia Co., and under our contract we were entitled

to any reduction made, and from the fact that we did not receive

the benefit of reductions

~(. Can you tell of any reduction that the Phil: adelphia company

made the Chicago company for which the Chicago Co. has not made

a corresponding reduction to you ? |

A. I do not know of my own personal knowledge, except what I

have seen |

Q. ‘That applies to the fifty lamps and the two hundred and fifty.

Do you know of any but that?

6

a0 CINCINNATE SIEEMENS-LUNGREN GAS ILLUMINATING CO. VS.

A. No, sir; of my own personal knowledge, I do not know of any

at all. | ave

Q. Upon what information, then, did you make this complaint—

claim—in your cross-petition ?

drawn.

Q. Mr. Eshelby, you have made up a list here of repairs amount-

ing to $614.00 and wages paid to your boys and gas-fitter, in all

about $1,200.00. You claim in your cross-petition $1,600.00 : what

is the balance for?

A. For the exchange of the bye-pass levers.

Q. You call that repairs ?

A. The labor of taking them in and making the exchange ;

ole yes, sir.

Q. Is it not a fact that you charge in that fifth charge

$1,000.00 for bye-pass levers? Don’t you remember ?

A. Possibly. |

Q. And then you also claim $1,000.00 ?

A. I don’t know what you refer to.

Q. I refer you now to the letter of August 9th, anion by you to

the Chicago company: “ Your Statement furnished to us for $9,931

is not in accordance with the prices of your contract, which we re-

spectfully refer you to. You charge us for8 ft.’ &. Did you write

that letter ? |

A. Yes, sir.

Q. Will you explain why you did not, in that letter, say that you

had all these claims for damages > why ise only thing mantioned is

that the prices are wrong? Will you explain that to the jury ?

A. As I say ina letter subsequent to this, we had looked into the

matter and found

Q. When you wrote this letter, Mr. Eshelby, of August 8th, were

you aware of any of these claims that you had against “the plaintiff ?

A. Yes, sir; we had this claim.

Q. W hy didn’t you say something about it ?

A. Why didn’t 1?

°(. That’s what I say.

A. Because I didn’t see fit to at that time.

Q. That is your answer? [Because you didn’t see fit to at that

time ?

89 A. Yes, sir.

Q. Why didn’t you demand of them that they give you

credit for selling the lamps in Middletown ?

A. I had already told them about that.

Q. Why didn’t you refer them to prices paid for repairs

A. We were getting a good many thitigs at this time, and, as I

stated. before, they said fort us to go, ‘and we would have a settlement

later on. |

Q. No—why didn t you name the repairs which you had made up

to this time?

A. The same answer applies.

¢

Question objected to by counsel for defendant. Question with-

WESTERN SIEMENS-LUNGREN CO. | ol

<a |

‘i Q. And to the defective lamps also?

A. Yes, sir.

Y Q. And to the bye-pass levers ?

A. What is the question? I do not know what you are asking

: me.

| Q. In the lamps that you are using have you changed bye-pass

- , levers? | |

i= A. Yes, sir.

| Q. Then why didn’t you object to that?

. The same reason. :

. & ny Is it not a fact that the statement they apanalnage”* rendered

' you and the statement that is sued on that they were $17.50—is it

, vot true that they corrected that ? :

Sg A. Yes, sir.

Q. Mr. Eshelby, why is it that in reply to this letter, when they

asked you to state what your claims were, that vou did. not state

: your claims?

A. I did state them. |

90 = Q. Point out any letter i in which you did state your

| claims.

A. I have one here; yes, here it is.

Q. I mean in addition to those two long letters of August, not as

to your objection to paying these two drafts.

A. Well, [ can tell you that I made up a statement when I looked

into things. I don’t see the letter; J thought it was here. Is may

5 be that it was my impression only that I wrote them a letter in re-

: gard to it; that was my impression, but it may be that it was ¢

conversation that I had with Mr. Wolf. I can’t find any such letter

here. |

— Q. If you stated it verbally where and when was it, Vr. Eshelby ?

a A. That I cannot state positively. It may have been i in his room

" 7 at the hotel or it may have been at my office. I doa't——

Q). In what month was it?

A. I should say in August—July or pena possibly Sep-

! tember.

‘Q. Well, what did you say to Mr. Wolf?

Adjourned to 2 o’clock, Feb. 10, 1890.

91 Met pursuant to adjournment.

.. . Mr. Esuetby on the stand.

Redirect examination.

Mr. Dienst:

(). Mr. Eshelby, state the number of lamps which vou had in use

during the time or at the time that this stock of one hundred

spurious lamps were sent you, and state the number that were in

use at a period three months after that.

A. I ean’t state definitely without an examination of the books,

because we were buying lamps right along, and we didn’t bué them

)

52. CINCINNATI: SIEMENS-LUNGREN GAS ILLUMINATING CO. VS.

except as we needed them, amd we bought quite a number; while

as I stated that we got these lamps in I ebruary, we bought quite a

number in the following months of JMarch, April, and, I think, as

late as May, and we put. them up as soon as we -ot them.

Q. Can you state from your boeks what the amount would be?

Ilave you your books here?

A. Yes, sir; we got—no, sir; nor from these books we have here:

but we have an order book at the oflice.

Q. Then you cannot state what the decrease wa?

Objected to by counsel for plaintiff, as the books will show and

are the best evidence. —

Objection sustained. Exception reserved.

Defendant rests.

Counsel for plaintiff move to strike from the record the testi-

mony of Mr. G. N. Clapp, pres’t of the Middletown bas works, with

the exception of that part which refers to the Y lamps.

Y2 Motion objected to by counsel for defendant.

Motion granted, and exception reserved by counsel for de-

fendant. |

Counsel for plaintiff moves to strike from the record all testi-

mony in reference to the bye-pass levers.

Motion granted. Exception reserved by defendant.

Testimony tin Iebuttal.

WILLIAM Sarit recalled by counsel for plaintiff.

Direct examination.

Mr. JACKSON :

(). [ will ask you to state, Mr. Smith, if this is one of the so-

called spurious lamps.

A. It is; yes, sir. |

(). And ‘this is one of the genuine lamps 7

A. Yes, sir; it is.

(QQ. [ wish you would show me where the cavity is that you say

let in the air.

A. Yes, sir; this lamp i Is supposed to take in air in here (indieat-

ing), to supply this globe. The air-must come into this globe. ’

Well, here there is a leak age all around here in this lamp. ‘Phe air

in there gets in both ways ‘and made the lamps smoke ; it caused a

draft. This lamp is made in one casting and does not let in the air,

while this one is made in two castings and is then screwed

JS together. ‘This other is in one casting and don’t let in the -

airin. This one takes the air in here and lets it out here.

To get these lamps to burn [ have been stufling them with asbestos

and with plaster — Paris to make then. burn; but you can’t do it.

The asbestos made a smell, and the inane would complain of it.

Q. Where is the other casting ?

A. Down here.

WESTERN SLEMENS-LUNGREN CO. : aod

Q. And this isa arparnte casting ?

A. Yes, sir.

(). And this other is In one easting, you say ?

A. Yes, sir. This is one put on here as a shell piece, to fit the

lamp. Iocan take the lamps apart for you. ‘This outside piece is

the shell. There isthe lamp. This lamp is made in one piece—

one casting from here down to its base. ‘The other lamp has that

also. Now I will take the otherlamp. Now, there’s the two lamps.

Of course this goes in.

(). So far as you can tell from looking at. these, say, they are just

wlike?

A. Just looking at them? Yes, sir.

(). But you say this is a separate casting and let the air in there ?

A. Yes, sir. :

Q. This lamp that you have here is one that has been recently

purchase? from Philadelphia ?

A. 1 could not tell you that.

(. It is not as old as the other one?

A. Oh, yes, sir, it is; it has been cleaned up several times.

v4 (). It isa fact, Mr. Smith, that the best of your lamps g elve

through from smoking ? :

A. No, sir, only when they” had the bad burner on.

Q. Then how does it happen that you have been obliged to

whiten the lamps?

A. Oh, this stuff that we put on here naturally burns off, burns

this away, and will turn brown; and you naturally ean’t go into

a man’s house and scrape that off. We put this on to whiten it.

Q. What are chyzal and asbestos used for?

That is chyzal used here on this sample. There is a liquid

form of chyzal and there 1s a dry form.

Q. What is asbestos used for?

A.'Itis like tar. It is some stuff that we bought to fill up, but

it stunk so bad we couldn't use it. |

Q. The only difference, Mr. Smith, that you are she dn state to

the jury, between the spurious lamps and the genuine lamps is this

passage through which the air was let in?

A. That is all, sir. Of course the lamps are a little different in

the made-up, but the trouble was in the leakage.

And the foregoing is all the evidence given or olfered by elther

side upon the trial of said cause.

And the court then charged the Jury as follows:

a CINCINNATI SUEMENS—-LUNGREN GAS TLELUMINATING COL Vs. .

95 United States. District Court. Southern District of Olbno,

Western Division.

The W ESTERKN SIEM ENs-LUNGKEN Co., Plaintill, |

ae

Tue Cincinnati SIpMENS-LUNGREN GaAs ILLUMINATING { ~

, Co., Defendant. }

Charye to the Jury.

Sade, J, orally.

GENTLEMEN OF THE Jury: It must have been a pleasure to you,

as it has been to the court, to listen to the trial of a case conducted

with perfect propriety and fairness and mutual consideration by

counsel for cach other and for the witnesses.

It now remains for me to state to you the rules of law which are

to guide you In determining the issues between the parties.

The plaintif sues upon an account (a copy of which Is attached

to the petition) to recover the sum of six thousand nine hundred

and twenty-two dollars and sixty-four cents ($6,922.64), with interest

from August 8, 1558, for goods and merchandise sold and delivered

to the defendant. Ido not understand that there is any dispute

concerning the items of this account as to the sale and the delivery.

The defendant rests solely upon certain ‘propositions which are

stated in the answer, and which have been testified concerning by

witnesses whose depositions have been read and by wit-

06 nesses who have been on the stand. |

The first defense in the answer need not be considered by

vou. A

The second defense. is that the defendant has not received the

benefit of reduction in price made by the Philadelphia Co., which is

referred to as “parent company,’ being the patentee of the gas

lainp which has been referred to in the testimony of the Chicago

company, the plaintiif in this case, the contract providing that for

any reduction made by the parent company to the Chicago com-

pany in the price of lamps furnished by it there should be a corre-

spond) ng reduction ino prices charged by the Chicago company to

the Cincinnati company. |

Now, | do not understand that there is any substantial differ-

ence—or any difference at all —between the parties as to the fact that

there was a reduction made by the Phik adel phita company to the

Chicago company, and that the Cincinnati Co. did not receive the

benetit of it. At all events, [ understand it to be coneeded that the

amount echumed by the Cincinnati company may be deducted—that

isto say, that you will subtraet from the amount claimed in the

petition, $65,922.64, the sum of $383.75 - su that, so faras this defense

is concerned, you will deduct that sum, 8385.75, as of the date of the

aecount. 2 | |

The second defense (that is, the third one as numbered in the an-

swer, but the secoad: that you are to consider) is that, whereas

a the contract provides that the defendant should have the ex-

clusive sale of the lamps specified in the counties of Iamil-

WESTERN SIEMENS-LUNGREN CO. | 53

ion, Butler, and Montgomery, the plaintiff sold lamps at Middletown,

Butler county, and thereby violated that eondition of the contract.

Now, it appears, and T think the testimony is not disputed upon

this point, that the Chicago company did sell outright to parties in

Middletown % lamps, and ‘subse que ntly quite a number more were

sold and gi dto parties in Middletown by the parent company.

Of that I will speak presently, but now I confine myself to the 9

Jamps sofd by the Chicago Co. to parties at Middletown.

Upon attention being called to this sale the Clieage company

notified the defendant, the Cincinnati company, of its willingness to

pay a sum stated in evidence, of wlich [ have not a memorandum,

but it was their profitef $4.80 per lamp. That was not accepted by

the Cincinnati? company, which elaimed that 1f was entitled upon

those 9 lamps to the amount which it would have made if it had

furnished them upon its own terms, which were either a rental at

the rate of $12.00 per annum per lamp or a price for a sale outright

of $50.00 alter the first vear’s rental.

Now, gentlemen, as the case was in progress I ruled out that

testimony as furnishing a measure of damages for the reason that

the law regards damages in matters of this sort as compensatory

merely, and therefore awards what will make th party complain-

Ing Whole by the rule tliat the damage shall be that whieh it in-

curred as a natural and proximate result of the wrongful aet.

98 The law does not permit the recovery of speculative dam-

ages as profits which a party estimates or supposes he might

have made if he himself had condueted the transaction. It permits

a recovery of profits as such only when they are so certain as to be

relieved troin the sbaaotion that they are speeulative or uncertain,

and the difficulty of the claim under consideration on the part of

the defendant is right here: that it by no means follows that the

Middletown parties, who were willing to pay io the Chieago Co.

$4.00 for each lamp, would have been willing, had they not ob-

tained the lamps from the Chicago company, to pay to the Cinein-

nati company a rent of $12.00 for the first vear and then $55.00 for

the lamp. Indeed, it appeared by the testimony of Mr. Eshelby

that negotiations were pending with these parties in Middletown,

and that they were not willing to pay the price asked by the Cin-

cinnati Co. Therefore, in consider ration of the rule of law which I

have stated to you, and which has been confirmed by the Supreme

Court of the United States, the defendant’s claim in this regard as

to the amount of damages was ruled out; but tae defendant is en-

titled to recover proper and legitimate damages forthe sale of those

nine lamps at Middletown; and I have to say to vou that the only

legitimate damage & the only damage that you can consider in that

regard is the profit which the Chicago Co. actually made upon the

saie of each one of those lamps, which, I think, according to the

testimony, is conceded to be $4.85 per lamp.

Counsel advise me that the only evidence as to that is that the

profit was from $4.00 to 85.00. It is for you to ascertain what. is

the true amount. The testimony is in the depositions altogether,

and you may take them and examine them for yourselves.

O6 CINCINNATI ~IEMENS-LU NGREN GAS ILLUMINATING CO. VS

99 If you find the amount accurately given, you may render

: verdict upon that point according to the amount so found ;

if not, if the testimony is that the profit was from 34.00 to 85.00,

then safe mode is to say S4.00) [thought it was stated that the

amount Was 84.85. | |

(Defendant excepted to so much of said charge as assumed the

damages to be speculative apd limited the recovery to the differ-

ence between the amount the defendant was obliged to pay for the

lamps to plaintiff and the plaintiff actually received. from the

Middletown company.) cee |

Now, it was also claimed that inasmuch as the parent company

had sold a lot more of |: amps at Middletown, that the defendant was

entitled to damages upon those lamps ; but the court is of opinion

that they eannot be considered, because the only provision of the

contract upon which that claim rests Is the provision giving to the

defendant an exclusive right, or agreeing to seli exclusively to the

defendant, for sale in the counties above named, all burners, fix-

tures, and appliances made by the said Siemens-Lungren Company,

and that the plaintiff would not knowingly sell or permit other

parties to sell tor use in said territory any burners, lamps, or goods

made, owned, or controlled by said Siemens-Lungren Company ;

would, upon the contrary, to the best of its ability, prevent the sale

of any such articles for use within the territory named to any

other than defendant, its successors or assigns. i

If there were any testimony to show that the Chicago. company

had knowingly permitted the Philadelphia company to sell lamps

Within this territory, then the Chicago company would) be

160) linble; but there is no such testimony. [tis not claimed on

behalf of the defendant that any notice was served upon the

Chicago company by it of the sale of those Jamps within the

territory covered by this contract.

(Defendant excepts to so much of the charge as excludes from the

jury consideration (defendant’s) claim for damages on account of

sales of lamps by the parent company (of Phil: adel phi: 1) in Middle-

tow nh and requiring evidence of notice of such sales to the Chicago

coluipany.)

The next defense rests upon thie clause of the dontraet relating

to repairs, and that clause is as follows: “That the said Sicmens-

Lungren Gas [Hluminating Company guarantees the life service of

any lamps furnished to be five (5) vears, exclusive of any globes

broken or other damages done through careless handling, and

that it will defray the expenses of any incidental repairs which

may be necessary to keep satd lamps in good and serviceable con-

dition during the period named; and that upon the expiration of

sald period of five years they will, if the parties of the sceond

part.so desire, guarantee that the said lamps will be guaranteed

for an additional period of five ‘years upon being paid the dali

tional sum of three (3) dollars for each lamp thus guaranteed.”

Now, It appears from the evidence that during the existence of.

this contract. the Cincinnati company was compelled to incur the

expense of certain Hame plates and other articles which it was

ce ee tS net a AN A RN SIGE,

WESTERN SLEMENS-LUNGREN CO. ay

necessary to replace in order that the lamps should continue to

render good service. Well, now, gentlemen, if von find from

the evidence, as it seems to ine you must, or at least that

101) vet would be warranted in doing, although I leave it entirely

| to vou, that these were repairs, then the proper cost-of them

is charge: able to the plaintif and is to be deducted. There is also

testimony with reference to the cost of a certain ap i ication which

was made for whitening a portion of the lamp which comes in con-

tact with the flame. You have heard that testimony. It is said on

the one side that that isa repair; on the other side that it is nota

repair, but is analogous to cleaning the lamps, and cleaning is cer-

—tainly not a repair, and that therefore it ought net to be allowed.

It is for you to pass upon that matter. If you find that those were

repalrs, then the cost of them is chargeable as a credit to the defend-

ant: otherwise not. Of course, if this item is allowed in-it is to be

to be ineluded the expense of making the repairs—not merely the

price of the flame plates and other articles enumerated, but the fair

and necessary cost of making the repairs.

In passing on that question, so far as you find that there is any

dispute in the testimony, it is proper for you to refer to any and all

circumstances which may enable vou to determine the weight and

accuracy of the evidence. The plaintiff says no aceount was ever

rendered of these repairs—these alleged repairs; no charges were

made upon the books; no objection or claim was made by the de-

fendants until after this difficulty arose, and therefore they did not

‘understand that these were items for which the plaintiff was respon-

sible; that it is evident that the defendant. didn’t intend to make

any charge for them and that they were understood and recognized

by both parties as incidental matters which would grow naturally

from: the use of the lamps and. not included in the term “ re-

pair.” |

102 “Well, on the other hand, the defendant, by its president,

says that at the time these expenses were Incurred and paid

he was occupied in other matters and didn't pay attention to the

condition of the contract, so as to fullv appreeiate the rights to which

the defendant was entitled under it, but that as soon as his attention

was called to it he did notify the plainuil, and the letter is read in

evidence.

Well, gentlemen, these are considerations pro and con. exclusively

for your consideration, or for yout attention, rather, and I leave the

whole matter to you for your decision.

(And the court being requested by the desemndd ant to charge in this

connection that the jury should t: ake into consideration the “probable

repairs to sdid lamps for the balanee of the period of five years, as

guaranteed by said contract, the court refused to so charge ; to which

refusal defendant excepted.)

The next defense is that a lot ok one hundred lamps was fur nished

by the plaintiff company to the defendant as under this contract,

which lamps were not in fact made by. the parent company—that

isto say, by the Philadelphia company—but for which the detendants

paid, including freight and incidental expenses of the purchase,

S—1G |

as CINCINNATI sIEMENS-LUNGREN GAS 11.1.UMIN -ATING CO. VS.

$2,000.00; that these lamps, they were notified by the Philadelphia

Co., were an infringement of.its patent and to retire—that is, to

withdraw—them from sale or use, and that when they undertook to

use them they found that there was a leakage resulting from their

construction, As vou have learned from the witnesses, the flame Is

enclosed within a glass globe, so constructed and attached that the

air is admitted at only one point and in such a way as to

103° cause a draft and as nearly perfect’combustion as may be

and thereby insure greater brilhancy of light. The difficulty

with these one hundred lamps was that while the external construc-

tion was not visibly. different from that of the Philadelphia lamps,

a part which in the Philadelphia lamp was cast or made solid. was

in the one hundred Jamps made in two pieces, which were screwed

together and so constructed that the air found ingress at another

than the regular placé, whereby the current was broken and disas-

trous results as to the flame or operation of the lamp followed, and

that the complaint against this larap was general-on the part of all

who received it, so that it had to be taken out. :

Now, the defendant claims that it ought to be eredited with the

price Which it has paid for these one hundred lamps; but the plain-

tiff says, “In the first place, according to vour own testimony, you

sold 12 of those lainps at $55.00 apicee, which would be in theagere-

gate $420.00, and you are not entitled to that.” Well, that is very

true, gentlemen. The defendant further claims that there was no

infringement !n-those lamps, because the parts were constructed by

the Philadelphia company (the parent company) and sold by it and

sent by it to the Chicago Co. for use, and therefore they come within

the license from the parent company to the Chicago company.

Now, if these are the facts, tne conclusion is mght. They could

not sell those lamps in what is called the “knoek-down” form

(precisely what that term means we have not been advised) to the

Chicago Co. for use and sale without thereby authorizing the Chi-

“ago company to put them together in the proper shape for » sale and

for use, so that if you find that that is the state of facts, that those

100 lamps are the lamps sold and furnished by the Philadel-

104. phia company, that is an end of the question of infringement,

so fur as they are concerned; and then the pli intl says,

“Why, you didn’t make any complaint of those one hundred lamps

at the time, and it is not credible, if they were so utterly unfit and

unsatisfactory, that you would have been silent from Fabruary until

June and then made no complaint of the operation of the lamp, but,

and so the plaintiff

PB]

ordered more lamps for use at the exposition ;

says that these facts are not consistent with the defendant’s present

claim, but go in support of the plaintiff proposition that the defense

is what is termed sometimes in. law “trumped up”—that is to say,

x

itisan afterthought for the purpose of defeating the recovery by ;

the plaintiff and not made in good faith.

Now, in reference to the damages upon these lamps | have tos say

this to you: If they were defective, as the defendant claims, the de-

fendant upon discovering the defect had his choice of two remedies;

it could throw and be relieves from pay ment for them; that it did

WESTERN SIEMENS—-LUNGREN CO. 99

not du; or it could keep them and then it would be bound to pay

the actual value for them. It is just exactly as if one of you gen-

tlemen, being’ a farmer, should buy a horse as a sound horse—rep-

resented to be soand—and you should find when vou came to try

him that he was spavined or had splints, or this or that or the other

defect which you did not see when’ you bought him. Now, you

could do one of two things: take that horse back to the person

from whom you bought him and cancel the trade, or you could keep

hina and pay for him what he is worth. but you cannot keep the

horse and not pay anything; that won't do. If you keep him you

have to pay his real value. In other words, the rule of

105 = damages in such a such a case is measured by the difference

between the contract price and the actual value of the thing

delivered.

Now, the defendant, as to the 100 lamps, kept them. I do not re-

member , gentlemen, that there is any. evidence before you as to

what their actual value was. So far as my recollection serves me,

the testimony is silent on that point; vet, the defendant keeping

those lamps, that would be the only measure of damages that he

would be entitled to. |

Upon the other hand, it appears that the defendant did sell 12 of

those lamps at $55.00 apiece, and the purchaser still has them. So

that, if I ain correct in my statement of the testimony, I eannot see

that you can do anything more than award nominal damages—that

is to say, in the aggregate from $1.00 to $5.00.

Defend ant excepts to so much of the above charge as limits its re-

eovery of damages upon the 100 lamps sold to it by the Chicago

¢ompany to nominal dam: ages

There was another claim made or sought to be made by the de-

fendant with reference to these lamps—that it interfered with their

business and injured it, and that defendant’s trade after that was less

than before. That claim was ruled out because the law does not

permit anything of that sort. [tis too uncertain, and therefore the

only measure of dam: wes Is that which I have st: ated.

The next defense rel: ated to the bye-pass levers, but it has been

withdrawn, and need not be considered. |

The last defense is that the lot of two hundred and _ fifty lamps

was furnished with solid metal burners instead of with tube

burners. The tube burners were of an earlier date and the solid

metal burners later and sup at to be an Improvement, and,

106s as [ J understand it, conceded to have been furnished i In good

faith as an improvement, whereas, in fact, they Were hot so

good as the tube burner, and the lamps did not oper rate so well with

them. aoe

Now, the difficulty with that claim is that there is no evidence as

to the loss in value—that is to say, no evidence indicating how much

less valuable the lamps were by reason of this change. There is

evidence that it would cost about $5.00 per burner to make the

change, but that expense has not been incurred by the defendant.

They have not made the change; and, as was stated during the

e

GO CINCINNATL SIEMENS-LUNGREN GAS ILLUMINATING CO. VS.

progress of the trial, when the matter, was spoken of in reference to

the testimony, they cannot recover damage which they have not

sustained ; otherwise they might take the $3.00 from the plaintiff

and put it into their pockets and not make the changeatall. More-

over, there is testimony that the Philadelphia company has offered

to replace the solid metal burners with the tube burners upon ap-

plication, [- think the festimony shows that at one time at least

it certainly did so, as claimed -by the defendant. The Vhiladel-

phia Co. refused to make that exchange beeause the Chicago Co.

had not paid to the parent company some bill that was owing.

But, as I understand it from the testimony, and ‘it is conceded by

counsel, a settlement has been arrived at between those companies,

and the suit for infringement has been withdrawn and also another

suit which the Philadelphia company had instituted against the

Chicago company, and all matters of difference between the two

companies have been settled, so that there is now no difficulty be-

tween them, and no objection on the part of the Philadelphia com-

pany to exchanging the burners upon application.

Well now, gentlemen, if that be the case the damages would

107 ~—ibe the damages would be only the actual expense of making

that shown by testimony, so there can only be nominal dam-

ages upon this claim. In this, gentlemen, as in every other case,

the findings of thie jury must be upon the evidence of the case; and —

upon all of these matters that [ have referred to as matters of evi-

dence I have to say to you that they are matters of affirmative

defense in the nature of counter-claims, and therefore the burden of

proof is upon the defendant to satisfy you by a preponderance of

evidence—that is, by evidence that makes the stronger impression

upon your minds—that its claims are weil founded.

(Defendant excepts to so much of said charge as prevented the

jury from considering the items of 83.00 per burner for each of the

200 lamps purchased. by defendant from the plaintiff, being the

amount claimed to be necessary — be expended in order to make said

lamps serviceable, and to so much thereof as limited the amount of

recovery of said burners to nominal damages.)

Gentlemen, you need not calculate the interest upon whatever

balance you find, -but you can state the amount in your verdict, and

add © with interest from August 8,. 1888, until Febru: ary 4th, 18090,

being the first day of this term of court,” and the computation can

be made later. oe

Whereupon the jury retired for deliber: ation, and retruned a ver-

dict for plaintiff, as appears of reeord in this case; and the defend-

ant within three days thereof filed a motion to set aside verdict and

for a new trial, for the reasons therein stated, and the same

108 ~—s was _ argued by counsel and submitted’ to the court, which,

upon consider ‘ation, overruled the same and entered judgment

upon said verdict, as also appears of record.

Defendant thereupon excepted to the overruling of said motion

and presents to the court its bill of ompeptions:| in this: case, and prays

oe

WESTERN SIEMENS-LUNGREN CO. | G1

that the same may be allowed, signed, sealed, and made part of the

record herein, which is accordingly done.

In testimony whereof the judge of the said United States circuit —

~has hereunto set his hand and seal and the seal of said court to this

bill of exceptions this lst day of April, A. D. 1890.

[SE AL .| GEORGE R. SAGE,

United States District Judge in and for the Southern District of Ohio,

Sitting in and Holding the Cireutt Court in and for said District upon

the Trial of the Above-Eutilled Action, the ITon. Hlowell EL. Jackson,

Circuit Judye, Being Absent from the District.

109 United States Cireuit Court, Southern District of Ohio, West-

ern Division.

THe WESTERN SIEMENS- LUNGREN Co.

vs. No. 422

THE CINCINNATI SIE MENS- LUNGREN Co. f

THe STATE OF ILLINOIs, o

County oy Cook, :

I, William K. Lowrey,a notary public in and for the county and

State above named, duly commissioned and qualified, do hereby

certify that the above-named Leopold J. Wolf and Joseph Wolf

were by me first severally sworn to testufy the truth, the whole |

truth, and nothing but the truth, and that the depositions by them

was subseribed as ‘above set forth were reduced to writing by

tay, a stenographer and a disinterested person, in my presence ara

in the presence of the several witnesses aforesaid. I further cert

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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