Record and brief — The Cincinnati Siemens-Lungren Gas Illuminating Company, Plaintiff in Error, vs. The Western Siemens-Lungren Company
Supreme Court brief1893
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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.
—_
}
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
~
~
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
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