# Record and brief — The Cincinnati Siemens-Lungren Gas Illuminating Company, Plaintiff in Error, vs. The Western Siemens-Lungren Company > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1893_193%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1893 ## Text 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 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 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 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 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 : : — , - oO Cw , . _ On Cw t ¢ gi ‘ i counted ther over, ES SLE . \ . WESTEI vee] ENG] , é Phil bai be st) - -_ ~~ - ~ -” Boe od | ~ oe ~~ — f e ~ = -. aor _— = ~~ 7 Y = Ff. _ . . —_— esi ~ “w ———e 4 ~ ~ _ an —— ~ . ~ —_ oe — ~ ~ > - P ~ ai me pos ~~ on “ 4 ed — ~~ oe . ‘= sm or oo a) : ear ww a ’ ede - — i roe ~~ , —~ o~ eal ss iy _ ~~ Be wa * ~— ~~ baer enews . —— woe =~ - a ew na . roe 5 we ee -* - ww -_ were ——— So ae Peg ge -_— o- ee peti od SEL a ~* od on) cc . - - ~-— 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 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 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=. 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 : 111) Srare or Onto, L Tlamilton Count, J we Tire Western SreMmeNs-LuNGnken Oo, Plaraitiy, ) Us. : > Tu Cixncinnary SremeNns-Luxcren Company, Defendant. | Case No. 1226, pending in the U.S. circuit court; southern district of Ohio, western division, The above-named defendant will take notice that on Friday, the 27th day of September, Iss, the plaintiff above named will take the depositions of Joseph W “te and sundry witnesses to be used as evidence in the trial of the above cause at the law office of William K. Lowrey, No. 95 Dearborn street, city of Chicago, in the county of Cook and State of []limois, between the hours of S o’¢lo- a.m. and 6G o'clock p.m. of said day, and that the taking of the said depo- sitions will be adjourned from day to day, between the same hours, until they are completed. | KRAMER & KRAMER, Attorneys for Plaintiff. Counsel for respective parties agree that the giving of the names of the several witnesses to be examined in the above case, at thesaid time and place, is hereby waived, and said counsel consent that the depositions of such witnesses as may be produced at said time and place may be taken. | : 7 And itas further agreed by said ee that these depositions may be taken before a disinterested stenographer and reduced 12) to writing by him and signed by the several witnesses after the same have been so reduced to writing, and all exceptions Or obje ctions to thesaid de positions bv reason of the failure to specify the names of cach witness im this notice, and also by reason of the saine being taken amd reduced to writing by said stenovrapher, are hereby expressly waived, | : Service of the above notice is acknowledged and proof of the viliclal character of the oflicer before whom the said deposittons tay be taken is by agreement waived; also all exceptions as to tine, Done this 23rd day of September, A. D. 1SS9. MDWARD DIENST, cures AtOy jor Defendant. KRAMER anp KRAMER, : Attorney- for Plaintiff. WESTERN STEMENS-LUNGREN: CO. GS 115. United States Cireuit Court. Sale District of Olio, West- ern Division. TRE WESTERN SIEMENS-LUNGREN CoMPpANY ) vs, > NO, 4226 The Cincinnati Stemexs-LUNGREN Co. 4 | Yne STATE OF ILLINOIS, | County of Cook, Pees I, William Wk. Lowrey, a notary public in and for the county and State above named, duly commissioned and ‘ * ne ified, do hereby certiiv that the above-named Leopold J. Wolf and Joseph Wolf were bv ‘ine firsrt severally sworn to testifv the truth, the whole truth, and nothing buat the truth, and that the depositions by them subscribed as above set forth were reduced to writing by Catherine IT. Rea, a stenographer and a disinterested person, in inv presence and in the presence of the several witnesses aforesaid. 1 further certify that counsel for both parties agreed that said depositions should be so reduced to writing | by the said Catherine H. Rea,-as appears In said ¢ depositions, I further certify that said depositions were subscribed by the said Witnesses respectively In my presence and were continued from dav to day as above set forth, and that said depositions were taken at the time and place specified in the notice hereto attached, and that I am not counsel, attorney, or relative of either party 114 ~~ nor otherwise interested in th- event of said suit) I further certify that the said witnesses and each of them live more than one hundred miles from the place of trial. In testimony whereof’ ] have hereunto set mv hand and official seal this 12th day of October, 1889. WILLIAM K.LOWREY, [seat] Notary Public in and for Cool County, State of Illinois. Depositions of sundry witnesses taken in case No. 4226, pending in the United States circuit court, southern district of Olio, west. division, before me, William Kk. Lowrey, a notary public in and for the county of Cook and State of Timois, pursuant to the notice and agreenient between counsel of record for the parties to said cause hereto attached, and at the time and place in said notice and agreement specified, The Western Siemens-Lungren Co. being the plaintiff in said cause and The Cincinnati Siemens-Lungres Gas Tuminating Company being the defendant, Lowrey Jackson being present on behalf of the plaintiff and Edward Dienst ap- pearing on behalf of the defendant. . 115 Lrorozp J. Wotr, being first duly cautioned and sworn, Ceposes as follows : | (). State vour name, age, residence, and occupation. — A. Leopold J. Wolfe; age, 30; residence, Chicago ; occupation, fur business. : G40 CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. Vs. 4 State what was your occupation in June and July, 1SSS. _ Twas in the fur business and in the gas-light business: 2 You may state what your connection was with the ane company at that time. A. I] was president of-the company. (). How long had you been president of the company ? A. | was elected president for the plaintiff company the 24th day of Mav, 1SSS. | (). When did vou cease to be president of that company ? A. On Dec. 10, ISS. Q. I willask you, Mr. Wolf, to look at this paper and identify aacks same and state what it is. | The paper shown me isa certified copy of the articles of in- ails of the plaintiff company. Counsel for plaintiff offers the said certified copy of the articles of incorporation in evidence, and the same is handed to the notary and marked by him Exhibit “A” and made a part of this deposition. — (Q). What connection, ifany, did you have with the Siemens-Lun - gren Gas Illuminating Co. ? 116 A. I was secretary and treasurer. Q). State how long you had been secretary and treasurer of the Siemens-L ungren Gas Iluminating Co. at the time of the or- ganization of the “Western Siemens-Lungren Co. A. For about a year and a half. (). About when did the Siemens-Lungren Gas. Hluminating Co. cease to do active business ? = Practically about April, 1888 ; serene eltherabout March ~~ 1SSS. You may state what, if any, business transactions were had Ss the Western Siemens-Lungren Co. and the Siemens-Lun- gren Gas I}luminating Co. with reference’ to the purchase of the _— of the latter company by the former. The Western Siemetis-Lungren Co. purchi ised the assets, con- Pi of merchandise-and capital stock, in the Chicago Gas, Light Iluminating Company, and contracts that had been in force with subcompanies for the sum of $12,000, IT believe. | Q). I will ask you to took at the book now shown you and state what it Is. . A. Minute book of the Western Siemens- Lungren Company. (). J will call your attention to page 10 of said book and ask you to state what, 1f any, proposition appears thereon. ; A. There appears on page 10 of said book a proposition from thie Siemens-Lungren Gas Hluminating Co, for the sale of all their as- sets and contraets, as specified in my former answer to the Western Siemens-Lungren Co. 11% Q. Do you “know in whose handwriting the said proposi- tion in said minute book is kept, and do you know the sig- nature found on page 11 of said book. A. I do. Q). State in whose handwriting they are. WESTERN SIEMENS-LUNGREN CO. ' aa A. The proposition is written by Mr. Louis Powell, who was at that time president of the company. The signature is that of Adolph Wolf, who was at that time secretary of the company. Q. | call vour attention to pages 12 and 15 of said minute book and ask vou to state generally what appears thereon. A. On pages 12 and 15 appears the acceptance of a proposition made to the Western Siemens-Lungren Company by the Siemens- Lungren Gas Hluminating Co. : (J. State if you know in “Whose handwriting the said pages 12 and is ec kept. ‘ The writing, exce pting the signature, is in the hand of Louis Powell The signature is that of Adolph Wolf. Counsel for plaintiff offers pages 10,11, 12, and 13 of the said min- ute book in evidence, and the said book is handed to the notary and said pages marked Exhibit * B,C," “ D,” and “ i,’ and the same are Inade a part of this deposition. It is consented by counsel for both parties that the stenographer may make a verbatimn copy of the said four pages, which shall have the same force and effect as if the sald. four pages were introduced in evidence. | Q. You may state whether after the organization of the plaintiff company it proceeded to engage in business in this city and State. A. Immediately. (Q. And you may state how long it has so continued in busi- ness. : 115 A. It is still in business. | (J. Please examine the anal now shown you and state ere it Is. The contract between the Siemens-Lungren Co. of Philadel- hin and myself for the saleon my part of their goods in the State a Ohio, certain counties excepted, Indiana, Hlinois, Wi isconsin, Mis- souri, Michigan, Iowa, and Minnesota, dated 6th day of April, 1SSS. Counsel: for plaintiff offers said contract in evidence, and the same is landed to the notary and marked Exhibit “I and made a part of this deposition. | (. Please examine the paper now handed to you and state what it - Tis is an assignment by me of my contract with the Siemens- Lungren Co. of Philadelphia to the W estern Siemens- Lungren Co. of Chicago, dated the 28th day of June, 1888. Counsel for plaintiff offers said contract in evidence, and the same is handed to the notary, marked Exhibit“ G,’ and made a part of this a, . Please examine the paper now shown you and state what iti is. A. This is a contract between the Siemens- Lungren Co. of Phila- 9—193 | : yt) CINCIN AAT. SIE MINS NGEREN GAS ILLUMINATING CO. ¥! Western Siemens-Luperen Company of Chicago, ee. eae } Geipuiile elticl = Ulic i - ] i. i ‘ 1 *. . ‘ >| oa ae ‘ v« ae Niemens- LUN erern Company oO: Phitadetphis would aAYPCCIIL Cliattl Clit 6? a ; ; bo Be te ere rs : ee coy : a Pesbobisivie ivr aii tine CONtract rights betoneine to the Subecont- a 4 ¥ .¢ Ls & . " : . : an) ‘ - > : ¥ a s 4 fs + ' 5 ac t ‘ , ei : j : bua ae | } ; praiblics w) Lie Siemens UM Tel KAS £140 \O., GALTCU oJ Utit Petis Tas {¢) f e,are 4 ey? “oe GF rents f? cy fj gars eerie: eryyyt yrs grt * rn. ae F SEW are 633 el Ge : Aiton f i PERL i gat 3 Vil Lo ahi , a4 rmerae rn % ici¢ SPUR. ML ETNS | ‘ ? ; } : t ; } } } 5 “ss I . } ‘ } ; : 4 Tot 2? ‘ ‘ P a . ‘ a Satie 1S handed tO the Nnolaryv and marked OVhIM Poxhiibit “ot and made a part of this Ge postion p ‘ % " . " * . . Ss 6 .3 , & '% 4 ea, oe a $ > as } ' + i] } ; e } f + ‘ s . : Counsel for the deiehnagaut objects to the tntiroaduetion of the contract 1k guestlo Qiyection Withdraw ( | \ ~~ ‘ > \ i ; 4 : : a a2 Is Correct. ; A Ii iS GOTrrect. ( j ee | shake: Se | 1? tT 4} artsr ts » f + } ‘ ave ; ol ee ey ’ ct >) . ’ ] 3 fos ary? y ¢ YP Wiii act ‘ é ia “6 oF $48 Se SE LS Bw S; ee Be lage if era We Ee aes 2 ee PLE La. were Gdeilvered to the delienhadantl : fe ou es BOER, (ees H i 47 i ! ’ ‘ :% A. Jhev were déiivered to. tiie PAPTCSs: OTHCE, Marweed or Lie , ; ee . o delendalit. é t te 4 ! Die . * . ; Wee (J. jiu hie Sa iti AUUOUTIL Ji eis \ preci dy ( ie Tt 4 ASCE 1 prcliu, a * . & g e i a re "A ' . aa o ; » | ‘ es 2 ? . ? (). 2OUu TWiady stale WAI LIICY iit Vices Ciarvedqd for MIC T CHAN Gi ae BAlddG account were In aceordancs Witt) Te COMULTaAcL: DeLWeeNn (I y h} ; ’ f 4) +} ! : \\ esterli Memehs-Luueren Co and the Citiicinhbatl Siemens-Luneren (gas filuminating (4 A lhe suid Prices mit 11} HeCOraahes aitl). he Ge ? MET Wee} thie Sicinens-Luugren (jas. 41] ldiihating { I the Cineinnat Siciieins-Luigien (aiin Pilugoh atviny (-¢) Wiel) COontrael was pur- chased by thie Western Sieipe Us-}oungre } to. Aas appears 32 Hy pc ViGlin duisWeis (). You lua yy state huily whicthiel anv reduetion ih} priee Was hiade cither to the Ssieteis-dou: 2Pen (yu Jiiumiinatineg Co. 120 or the Western Siew lis bition 1 0, by the Siemens Lounge re I} (ool Phiihacdelpliia uid, if SQ, Stale thie Coliniche ration of sald reduction and low the saiie Cubie CO bre Wide A. ‘Phere Was a Peductiol liade that would Gp pear oli the surface to cheapen the lamip, but in reality it aid Hol Cheapen ib any or but alittle When the eouods Were shiijope dd is iiider the first price the latipes Were seul pruet Lovether, the differciit jraits adjusted, and the liatuap Was hickeled. - li sending tliciis pial bogethei it miade + bulky package atid, ii CONSE Lt bie, iba peascd the fre io dat Piile rth thie liability Lo ‘bicakage, So that, ii coustltation between the eastern aud Weston people iiterested, il Wes concluded thiat the latips should be shitpped frota the byist in what was called kaoek. down formu, thereby cuabliag theme th pack oie haudred of each article colapactly iu a box, and the Wester company thereupon fitted Lipp Shop to pout thie batii ps together cack ik hi iad liane and adjusting necessary to shige the latipes ais plaid rou distead of nickeling Uhiein least, the Wester poople believing that they eould be better nickeled tu Chicago. lu consideration of the fact that the ° e oe nama d 4 P ed f Sienpels- thie ) frees nere srca ' ; - aa he a i i ~~ -— eee oe — 7 ~~ - J e — — tome “a — a2 ne . ss e * ey - on ~ anne ~~ = . = _— — o- o~0 -ene ae - suas oe , ~@ 4 Cd 5! ~ Sd oo — a ~~ ~4 — 4» an -v ww ~ « + — _ a) oon wn o-@ -_ " — — , s " ~" > - oo is * emmy een ’ tin - “ee eee ; a o 4 4 et ed e — « s aael ~ ey - ae ee 4 ond =) ~~ ae . ’ ~~ - ae ee | wo ~~ “ ’ ; ~ — - — | p Sa ~~ ad +d “_ a es ~« F ~. a pe al ~ , ” - ’ . -_ er ma + os id mos ) aoe ~ i com poet 6 — { ts . US CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. Vs. same, after the date of vour contract with said company, with regard lu repairs Upon the lamps. 3 | A. Some time in the latter part of August or the first part of Sep- tember To was in. Mr. deshelbv’s office, aud f asked iim the reason why our bill was not paid. ILe told me that he eould not tell me definitely; that he would lave to call a meeting of the stoekholders or directors of the company, and they would then tuform the com- pany by mail unless TP preferred remaining for several days until he could call a meeting. ITLe saidtthat le could teli me this 1253) omuch: that there were charges for repairs on the damps and for otter matters. i answered that of course [ could not argue against any claims that be did not siate to me, but so tar as any claims for repairs were concerned | couid not see tow he could have been put to any expense Im repairing them nor how he could have repaired then, if they needed it, because be would have been compelled to get the material from us or from the Philadelphia Co., those being the only two sources of supply, and, having no right to purchase from the Philadelphia Co., he naturaliv would have been compelied to apply to us, and that we had had no orders from) tytm for aby materials necessary to repair the lamps. (J. Is it necessary, Jn conducting the business which the Cinein. nat! Co. was then conducting, to send aman at stated periods for, the purpose of repairing the lumps” ~. It is hot, It is Necessary Lo sera, cho Lat) periodically LO clean the globes and to shake off any sediment or carbon caused by the couibustion of the gas tliat May have settled either in the ZOVErNOr or the burner in order to preserve the proper shape of the flame, aud the lump is so constructed purposely that the governor and the the burner mmay be removed from the Jatmp without otherwise dis- turbing the lamp, so that this very purpose can be accomplished. It is understood by all commpanics OF persons Who’ operate the lamps that it is necessary periodically to so clean them inthe same sense that it is necessary to trim the wick of an oil damp to have it burn properly or to put a carbon in an electric lainp to produce 7 liglit. | | 124 (J. You may state whether either of the Chicago compa- files al dliy time shipped LY the Cineinnatl COM pany ups Which were an iWifringement pol the Philadelptia patents or lamps manufactured in whole or in part in Chicago: and, if-so stale fully the circumstances. : A. Neither did. The Siemens-Lunegren Gas Jiluminating Co. Inanufactured some lamps in Chicago, which under its contract it had avight to do under certain conditions which existed. Upen attempting to put the Chicago manufactured dataps into use in Chi- cago it Was discovered that those portions of the lamps which lad been patented were not properly constructed or possibly were made of the wrong material. These parts consisted of the burners, the flaine plate, and the governor, the three exscutial parts of the lamp. Pius iett only the mere shell of the lansp as being made in Chicago, consisting of the gas pipe, a plece of iron casting, the regere-atalive chamber, aud the tin chinmey stack. lu conseguenuce all govern- , WESTERN SIEMENS LUNGREN CO. (0) ors, burners, and flame plates manufactured in Chicago were dis- varded and destroved, and these parts necessary to make a perfect lamp were supplied tous by the Philadelphia company and made apart of the Chicago-made lamps. When the merchandise and contracts were sold to the Western Siemens-Langren Co. by the Siemens-Lungren Gas PHluminating Co.u portion of the stock on hand, consisting of these lamps, and some of them to the number of U2, were sent to Clncinuatt, fo all that portion of the foregoing: Answe ic shen Is the — abie cts, ( ‘ene atest pind 125 (). State whether the Cincinnati Co. ever returned or tend- ered back to the Chicago companies any of the said 12 lamps SO shipped to them. A. It did not. ee ). State whether the said lamps, partially made in Chieago and parilaliv dn Philadelphia, as vou have stated, were serviceable lamps for mercantile purposes, or otherwise. Objected to by counsel for defendant. Thev were. Of that Iam positive for this reason: No lamp made as described in my answer to the previous question was ever ~ oe first being tested by us. . You may state what character of lamps your companies in C! icago delivered LO the Cinetnnat, Co. with reference to their belng or not bene of the tnost approved praritery Inanulactured at the date of shipment. 3 : A. We always shipped the most mp eeade ed patterns, necessarily so because we earried no large stock in Chicago, stmiply keeping supplied for a few days ino advance, and as our stock became exhausted ordering new from Philadelptiua. (). State fully the circumstances solatie to the supplving of a bye-pass fever to the Cineinnat: Co. in exchange for the old-style levers previously used by them. 2 A. The Philadelphia company got up a new-style bye-pass lever, and as soon as We were informed of 16 we requested them to supply us with it. They sent them tous in such Guantities, they claimed, and as rapidly as they could manufacture them IP) them, and we offered: to the Cineinnath Co. to give them the new-style bve-pass levers in exchange tor the old-style bye- pass levers as “rapidly as we could be supplied from: the factory, (Q. You may state i any charge was made by your companies avatust the Cincinnati Co. for the turnishing of the improved levers. A. None. | Q. You may state what expense, if any, wourd ensue th making the change from the old-stvle levers to the improved levers. A. One was-fitter, with lis heiper, ought to be able to change the bve-passes, substituting the new stvle forthe old, on at least fifty lamps per day. Q@. You may state if at any time uuy demand was made upon 70) > CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING CO. VS. a we’ you or the companies you represented fur expenses incurred ny the Citicinnati Co. in making said change. A. No. : (). You may state whether at any time the Siemens-Lungren Gas Hluminating Co. or the Western Siemens-Lungren Co. failed, for more than 30 days, to ship and deliver goods ‘ordered by thie Cincinnati Co. | A. We have always filled and delivered to the railroad company all orders received from the Cincinnati Co. before the expiration of 3 days from the receipt of the order. : Q. Please examine the paper. now shown you and identify the same. A. This is an agreement, made between the Simetaiiiananen Co. of Philadelphia and Joseph Wolf, giving to the latter the rieht to sell the goods manufactured by the former in the State of 127 Oh, excepting the counties of Mahoning, Columbiana, Jefferson, and Belmont, and by him assigned to the Siemens- Lungrene Gas IHluminating Company. | eae (). Please state if you know the signature- to said contract: and, if SO, ere they are. 7 ‘A. Tam acquainted with the signatures on the contract, and I know the one to be I. Stein, president. of the Siemens Lungren Co. of Philadelphia; the other of HL..A. Brognard, secretary of the same company; and third, Joseph, Wolf, president of the Siemens- Lungren Gas Illuminating Co. Counsel for plaintiff offers said contract in evidence, and the same is handed to the notary,and by him marked. Exhibit “1.” an- made a part of this deposition. (). State if at any time said contract, to your knowledge, was shown to and examined by the Cincinnati Co. or its oflicers.. A. In arranging with the persons comprising the Cincinnati Co. they desired to see the contract under which we held the right to Ohio or to the territory that we proposed to sell them,and J handed them this contract for examination and their perusal. a number of gentlemen in Mr. Wickenlooper’s office, at the gas oflice, at the time; among them [I remember Gen. Hickenlooper, Mr. shelby, Mr. sillingheimer * Mr. Gray, and Mr. Fleischmann. As to that, | would not be positive that all of those gentlemen were there when I handed the contract for examination. I handed it to Gen. Hickenlooper, and it is my impression that the gentlemen were there at that time and. discussed it with him, but I ‘would not be positive. Some of them were there and some of them kept 128) = coming and going, and it and going and it may be that at one time and another they all had a chance to talk it over, but whether they all examined it I do not know. Some of them were in the office and some of them remained until thé close of the nego- tiations, but whether all these people were there and looked over the contract I do not know, but they had an opportunity because it was in Gen. Hickenlooper’s s possession. ‘Fhose who looked it over and those w ho he scronian- 4 bo » Giaonen it I do not know. There were. the Chicago companies. WESTERN SIEMENS—-LUNGREN CO. Cross-examination : Q). Mr. Wolf, T will ask you to examine this copy—of course you are familiar enough with the contract. to: testify what it is—and state what it Is. ace A. This a copy of the contract executed between the Siemens- Lungren Gas Iluminating Company and a syndicate of gentlemen Jn Cincinnati, dated the 9th day of Nov., 1887. Counsel for defendant offers the said copy of contract in evidence, and the same ts handed to the notary and marked by him Exhibit “J” and made a part of this deposition. (). IT will ask you, Mr. Wolf, whether you were aware of the fact that that contract was assigned to the Cincinnati Siemens-Lungren Gas go wae ald Co. = Yes, sir. . I will ask you whether or not all the transactions and sales of the patent lamp and fixtures made by this company have 129 ~=not been made under and by reason of this contract—made by either the original Chicago company or the Western Siemens-Lungren Companiy. | A. All shipments that have been made from Chicago or, for that matter, from Philadelphia, through the agency of the Chicago con- cern, have been made with reference to that contract and by reason of it. 2 Q. i will ask you to state whether or not you have In your pos- session any of the bills rendered you from time to time, either to the Chicago Gas Light Hluminating Co. or the Western Siemens- Lungren Company, for the patent of Jammps and fixtures shipped you. by the Philadelphia company since the date of the contract between the Cincinnati syndicate and the Siemens-Lungren Co. of Chicago. If so, can you furnish them, att ach them, and male them a part of your deposition ? A. I have nothing in my possession relating to any of the affairs of either of the Chicago companies or of the Cincinnati Co. 1 sev- ered my connection with the vas 1liuminating companies some time ago, and any papers relating to the business, so far as I know, are in the office of the company. (). Who is the president of the Western Company and who is its secretary ? ' A.-I do not know. | Q. What do you mean when you say the ait are in the oflice of the company ” , A. I mean, so far as I know, it is customary for any papers refer- ring to any business connected with any company, that the papers ean be found in their office. 130 Q. IL will ask you whether or not during the time the bills were rendered to the Cincinnati Co. by “either the original Chicago company or by the Western Co. reductions in prices rang- 6vey ing from 25 to 33 per cent. were made by the Philadelphia Co. to 72 ~~ 6 CINCINNATI SIEMENS-LUNGREN GAS ILLUMINATING Co. Vs A. [do not know of any such reduction and [do not positively know the extent of anv reduction. [ know that & reduction was made, but, to the best of my recollection, it did not amotnt to any- thine like the percentage you mention, and it was made for the rea-, son that will dppear 1h mV direct eXatnihation. (9. Twill ask you whether at any time on the rendition of any bills to the Cineinnati company the Cincinnati company was al- lowed any such re luction as made by the Philadelphia Co, to the ( Hhicago Company. A. There was none made to the Cincinnati Co., for the reason that the reduction made to the Chicago company, hy the Philadet- phia Co., while It was a reduction to them in price as bilied from Philadelphia, was really no reduction in fact. [t was simply that the lamp was sent to ¢ ‘hicago by the Phila. Co. in a different form, in what was called knock-down form, and put together in Chicago instead of, as formerly, put together in Philadelphia, and the reduc- tion was fie the labor ensineted with matching. the parts and pa ting them together and making a perfectly cons true ‘ted lamp, becaus whe ny that sel tioh Was made they ce ased nicke lng them aul | car them tous in the rough iron shape, and that reduction was made, We preferring to put them ‘toge ther here and to nick/e them. here. (y. Is it nota tact that the Philadeiphta company quoted to all others and sold to ail others the articles In question at af 1 precisely the same prices at which they were furnished to a MW all : complete Ine very part cul: ary A. Ht they did, then the Philadelphia Co. misrepresented the facts ifs 418, and | sie nO Knowledge of it. The Philadelphi a Co. re pre- gus that, In consider ition of their coming to usin that form, eetting them at a lower price than they were furnishing: to a. ‘ we = (0 What shape did that proposition from the Piiladelp Nita ecom- massume Was ita verbal proposition or was it in writing ? os What proposition do vou reter to? : Q). T mean the proposition you refer to by reason of vour doing a portion of this work and the Philadelphia Co. shipping them to vou in rough shape and you putting them together, and by reason of that vou getting a reduction, _ ae A. That, to the best of my recollection, was pelpcapary verbal. There may have been some —— le nee, but if there was [ de not remember it. | (J. Between whom was the arrangement made ? A. Personally ? (). Yes. A. Between Mr. Stein aad myself. (J. Mr. Stein is a represent: tive of the P hiladelphia COnip any ? A. President of the Philadelphia Co, (). And vourself? A. Yes, SIP. ’ (). Mr. Wolf, is it not a fact that there is now nadine In the eir- cult court of the U.S. for the southern district of Vhio: a case brought ’ Tes at, Aa alee Middietown. WESTERN SLEMENS~-LUNGHREN CO, by the Siemens-Lungren Compat Vv, tne patent Company, of fa, a@alust the Cinemnatr, Sremens-Luneren Cas Rees : ‘ a) ’ +o. ae .} +e . EP are ee Be i .. » Liltliminating Co., In which the sreaar aliens Ulead Lhe tattel t : oad } } : } ' . ’ ? ’ 3 nas WPinged THe patented Manmps WHoiecn are the SUD Peet of tirese pa Pe a Ge i 5 eee eee Sd CONLTACTS. 29350 11) Whien Dill 16 asks tor an Pyypurielion Lo restrain thre further Mtr nvement bees damages and an accounting, and IS —— not wu fact that the We Co. have been notified of the pending litt vation wad have bee ' oa by the Cinemnnatr Co. to undertake he defense, and that the Western Co. has undertaken the defense of thie pending sult? ’ } » a } ‘ » : . a : : ° i a ‘ ifs 5 (Counsel fot prac rititl ObJeECcts to the question as PnCcoMmMpclentl. A. LT beheve that L know of some sort of suit down there, but just the nature of it and just whet progress has been made [do not know, for the reason that just about the time that that sort of trouble started between Crocinnmat and Chicago and Philadelphia bo sotd out and quit the business, and am not so conversant wit anything happening then and subsequentiy, and, in fact, very little conversant wit What happened recently in the business, except what E kiow by hearsay. - have no interest tinanetally and have not kept posted. .Q. Is it nota facet that a representative of the Philadelphia Co., Upon an examination of these lamps in question which were shipped by vour company, they betng defective insofar that they would smoke and otherwise failed to render the service required, (pon an examination of them ascertatned that they were tnfringement of the lamp as manufactured by the —P hilade ‘Apliia company, and that he thereupon orcered them retirement” OAL Tf that isa fact Enever was made acquainted wa r it. 1 did not know up to this moment what connection anybody interested In the Phil. Co. had with this transaction, as to the alleged lii- 13000 fringement oras to ordering lanips apor down, and as to the question of their smoking there have been im my experience in the business numberless times when the lamps manufactured by the Philadelphia Co. smoked, catused simply by tegleet to clean the parts that should be periodically cleaned, Q. Is it nota fact that since the entering iito of the contract be- tween the Chicugo COMpahny and the Ciiediinat sVidicate, stibse- quently assi-ned LO the C*ynediinatl COMMpaLY, thie (hieago (lo. liet- withstanding its ground of exclusive might to the territory of Pbat- ilton, Butler, and Monteomery Counties, sold in the villages aid cities of Middletown, Dayton, and Hamilton these patent lauips ? It is nota fact so far as your question relates to Dayton and PTanailton. It IS uh fied tO this Cxtept of, | believe, hie lia ps }hi MiddJetown. Isat not a faet that there are now in use In Middletown over three hundred of these patent lamps sold by your own or companies other than‘the Cincinnat! company % A. If itis a fact J] am not-aware of it. I do not know of any Jamps besides the nine that went to Middletown, and until now was under the impression that those nine lamps were all that were In 1O—1lv5 74 CINCINNATI: STEMENS-LUNGREN GAS ILLUMINATING CO. VS. Q. Did I not you understand you to say that after the Cincinnati Co. protested against the sale by you of any more ‘senate in Middletown you immediately discontinued -the sale? A. As soon as we learned that the Cincinnati Co. objected. 134 to our selling lamps in Middletown we refused to ship any more lamps there—reccived letters from Middlet town and. re- ferred the Middletown Co. to Cineinnati. Q. Do you know the date of the protest? A. Ido not. Iam speaking now of my recollection of the inci- dents. I do not know the dates. QQ. Is it not a fact that after March Ist, 1888, or prior to March Ist, but subsequent to the protest of. the Cincinnati company and not- withstanding said protest, you nevertheless continued to sell lamps to the Middletown company ? A. So far as my recollection goes, I know nothing of the transac- tions with reference to that date. Q. State how you figured the profit which vou have allowed the Cincinnati company upon the lamps which you admit have been sold in Middletown. | A. [Tam under the impression that the profit was calculated in this manner: The difference between the price paid by Middletown and the price that the Cincinnati Co. would have had to pay us was calculated as being their profit, so thet. they were given the same amount of money ‘that they would have earned if they had bought the lamps from us at the regular prices and turned them over to the Middletown Gas Co. at the prices that — were sold to the Middle- town Gas Co. Q. Is it nota fact that thie difference in the price which they would have paid you for the purchase of the lamps from vou and the price at which they sell them is at the rate of $53 per lamp? 135 A. | donot ale what they sell their lamps at. . Q. Do you know that a payment of $2,000 was made to we original Chicago company for lamps which were afterwards claimed to be an infringement, which the Cincinnati Co. was compelled to retire from the market, and that the material and lamps are now in their possession, utterly worthless, and that no part of the $2,000 was ever returned the Cincinnati company ? Objected to by plaintiff’s counsel. A. I do not. Q. Do you know that the 92 lamps testified to by you in your examination-in-chief as having been partly made by the Chicago company ora part of the lamps so claimed to be an, infringement, and for which the $2,000 was paid ? Objected to by plaintiff’s counsel. > A. I presume that the 92 lamps of which [ speak in my direct examination are the lamps to which vou refer in your previous send tion, but I do not know that they are utterly worthless and of use. : ’ Es WESTERN SIEMENS-LUNGREN CO, ie Q. Is it nota fact that the i improved style of lamp witha bye-pass lever was not furnished to the Cincinnati company until after their demand upon you and after they were aware that the parent com- pany, the Philadelphia Co., was manulacturing and putting the same in the market, and that 1 in compliance with their dem: ind you then furnished the improved lamp? Objected to by plaintiff? s counsel. A. It is not a fact. We supplied the Cincinnati — with the bye- pass lever on the lamps just as soon as we were supplied by the Philadelphia company with that style of lamp. 186 Q. Is it not a fact that your companies would send a bill : for goods claimed to have been shipped to-day, but which in fact were not shipped for a period of thirty days after the rendition of such bill or a period of 30 days after the receipt by your com- panies of the order theretor from the Cincinnati company ? A. Never, emphatically. Q. You state in your examination-in-chief of the contract between the parent company and the first Chicago company having been forfeited by the perent company. Please state the grounds upon which the parent company exercised such forfeiture. Objected to by plaintiff’s counsel. A. The principal grounds was the non-payment by the Chicago company of its accounts within the specified time In the contr net. Q. Did you consent to such forfeiture? Objected to by plaintiff’s counsel. A. Well, no; we objecied to it until we were forced to it- -until we could not help oursel/es. Q. When did you first become canna with the sale of these lamps? I mean when did your practical experience in regard to their sale, care, ete., begin. A. It began with the introduction of the lamp, with the first lamp that was made of its kind, and was nn’ like Feb. or Mareh, 1887, 1 believe. Q. During-that period of time what were you- duties with refer- ence to the eare of these lamps and what personal attention did you | give them ? 1o7 A. I had general charge of the entire business. I took | charge of the selling, superintended the packing and ship- ping, aitended to the correspondence, did the traveling, and in the city of Chicago, when I was in the city, | would go to such places as I knew were using the lamps and, with men employ ed for that pur- pose, superintend the cle: aning and superintend the care given, watch to see that the lamps were giving: proper satisfaction, and, if not, ordering them displaced and. substituting others fur them. Q. | will ask you whether or not pending negotiations between your Western Co. and the Cincinnati Co. for the settlement of the account in question, and for which suit has been brought, you (after an allowance of claims made by the Cincinnati Co. as credits against 76 CINCINNATI: SIEMENS-LUNGREN GAS ILLUMINATING CO, VS. ge © the account) agreed to accept as the amount due, after deduction of such claims, the sum of $3,031.50. : Counsel for plaintiff objects for the reason that said allowance and proposition will appear to have been made as a compromise of a : A suit opened or about to be brought, and for the further reason that al said proposition would appear to have been made by letter. Objec- tion sustained. A. I made such a proposition as a-compromise for immediate set- tlement, for the reason that at that time the Western Siemens-Lun- gren Co. was indebted to the Siemens-Lungren Co. of Philadelphia and needed the money to pay the account coming due, and rather — become involved with the Philadelphia company was willing to a make a sacrifice to obtain the money. : LEOPOLD J. WOLF. 135 The further taking of these depositions is hereupon ad- journed until Saturday, September 28th, 1889, between the same hours. : JoserH Wotr, being first duly cautioned and sworn,.deposes and ° says as follows: (). State your name, age, residence, and occupation. A. Joseph Wolf; distiller’s agent and commission merchant; 79 Dearborn street, C hicago ; ave, 30. Q. What, if any, connection have you with The Western Siemens- _ Lungren Company, plaintiff in this action ? A. I have been one of the organizers of ‘said company from the start, and acted as one of the directors of same from the beginning . of the organization. : \ (Q). What, if any, office do you now hold in said company ? 7 A. Tam president of said company at present. Q. You may state what official connection you-had with the Sie- mens-Lungren Gas Illuminating Co. while it was in active busi- ness. | A. I have been the president of the Siemens-Lungren Gas Illu- mininating Co. iL Q. W hat. if any, share did you take in the active management of ; the business of the Siemens-Lur: gren Gas [luminating Company ? A. None whatever; only presided at meetings. Q. Who was the: active managing agent of said company ? a" @ A. Mr. L. J. Wolf, who was at tint time secretary and treasurer of that company. A (). | will ask you to examine the account attached to the 139 petition in this case and state if said aecount is due and if auything has ever been paid thereof. A. Said account is due to the Western Siemens- Lungren Co., and to my best knowledge and’ belief I do not believe a cent ever has been paid on said account. Q. I will ask you to state if the prices — Insaid account are . in accordance with the contract entered into “between the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1893_193%3A0. Public record. Not legal advice.